Monday, February 23, 2015
The Fifth Circuit last week granted a school district's petition for rehearing en banc in a case involving off-campus student speech. The grant means that the full Fifth Circuit will get a crack at the issue whether and how off-school student speech critical of a school employee, but not otherwise disrupting the school, is protected under the First Amendment.
The case, Bell v. Itawamba County School Board, arose when a high school student was suspended for recording and posting on his Facebook page a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at the school. The student, Taylor Bell, wrote the song, recorded it, and posted it off campus, at facilities unrelated to the school. While students heard the song, they shouldn't have heard it at school--no cell phones, no Facebook on campus--and it didn't cause any disruption or interference with school activities. So the majority on the three-judge panel reversed the district court and ruled for Bell:
[T]he Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so.
Given that the Court hasn't ruled on the issue, this may be one to watch.
Tuesday, February 10, 2015
Newly elected Illinois Governor Bruce Rauner (R) late yesterday issued an executive order that halted enforcement of the fair share provisions in state union contracts with state employees. At the same time, he filed a preemptive federal lawsuit seeking a declaratory judgment that his EO was constitutional.
The pair of moves (especially the unusual lawsuit) can only be understood as a full frontal assault on whatever is left of public sector fair share under the First Amendment after last Term's ruling in Harris v. Quinn. (And there's not much left.) Indeed, the lawsuit seems specifically engineered only to put Abood, the 1977 case upholding public sector fair share requirements, before the Court again and to topple it once and for all.
"Fair share" fees are those fees charged to nonunion members in a union shop. They're designed to cover union expenses that benefit all employees (union or not), like collective bargaining. The Supreme Court ruled in Abood in 1977 that fair share fee requirements do not violate the First Amendment (as compelled speech and association), because they are justified in order to avoid free-riding by nonunion members (that is, nonunion members who benefit from the union's activities, but fail to pay union dues) and to promote labor peace. Without fair share fee requirements, public sector unions could be hard-pressed to gain membership or collect any fees. That's because without fair share requirements every individual employee might rationally think that he or she could duck out of union membership and fees and free-ride on the union's bargaining. If enough employees think this, the unions could disappear.
The Supreme Court in recent years has chipped away at Abood, first in Knox v. Service Employees (2012) and then in Harris v. Quinn (2013). Abood's definitely holding on by just a string, but the Court hasn't specifically overruled it.
Governor Rauner's actions seem designed to do just that. Rauner's EO, halting fair share enforcement, is based on his worry that "the collective bargaining agreements force some employees to subsidize and enable union activities that they do not support," and "Illinois state employee unions are using compelled "fair share" fees to fund inherently political activities to influence the outcome of core public sector issues."
But Illinois law permits the collection of fair share fees only for nonunion members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment . . . ." 5 ILCS 315/6. It does not permit collection of fair share fees for other activities, like political advocacy. Thus, Illinois law is fully constitutional and comports with Abood. (Again, even if Abood is on its way out, it's still the law of the land.) Still, Governor Rauner's EO takes it head-on.
To punctuate the EO, Governor Rauner then filed a preemptive suit against the unions in federal court seeking declaratory relief that his EO is constitutional. This sounds like a nonjusticiable political question, or like Rauner lacks standing, or like the whole thing isn't yet ripe. (Shouldn't the unions be suing?) But Rauner has an answer for this (strange as it sounds): The EO renders null and void the fair share provisions in the state's collective bargaining agreements, thus creating a controversy between the Governor and unions.
The aggressive EO and the strangeness of the suit can only mean that Governor Rauner is taking on public sector fair share and Abood full force--that he's doing it because he wants his name on the case overturning Abood.
Monday, February 2, 2015
The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.
The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.
The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.
The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:
Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.
But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."
The court rejected POM Wonderful's related statutory claims.
Thursday, January 29, 2015
Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.
Salaita has now filed a 39 page complaint in federal court. The first count of the complaint alleges the First Amendment violation:
In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.
Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.
The second count alleges a procedural due process violation. Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.
ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.
Tuesday, January 20, 2015
The United States Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule of judicial conduct prohibiting the personal solicitation of campaign contributions in a judicial election.
Recall that the Florida Supreme Court held that Florida Code of Judicial Conduct, Canon 7C(1) (substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct), satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds). The Florida Supreme Court's opinion also pointedly noted that federal "judges have lifetime appointments and thus do not have to engage in fundraising" were divided on the constitutionality of the canon, while state judges were not.
In the arguments before the life-tenured Justices today, the problem of line-drawing was pronounced. The fact that the Florida rule was a compromise that allowed judicial campaigns to establish committees to solicit funds and allowed the candidate to know who had contributed and allowed the candidate to write thank you notes called into question whether the canon was narrowly tailored. But, as Justice Kagan noted, that might mean that the state would simply broaden the proscriptions, to include thank you notes for example, and asked whether that would be constitutional. Counsel for the petitioner ultimately answered in the negative, linking the election to the availability of money.
At the heart of this issue is whether judicial elections are like other elections or whether they are distinctly judicial.
Justice Ginsburg, who is decidedly in the camp that judicial elections are different, essentially urged her position at the beginning of the arguments ("the First Amendment allows the State to do things with respect to the election of judges that it wouldn't allow them to do with respect to the election of members of the legislature.")
Chief Justice Roberts seemingly leaned toward equating judicial and political elections, stating that "it's self-evident, particularly in judicial races" that "prohibiting a form of raising funds is to the great advantage of the incumbent" because the only way "incumbents are going to be challenged if you have somebody who can get their own distinct message out." Later he stated that the "fundamental choice was made by the State when they said we're going to have judges elected." This echoes Justice O'Connor's concurring opinion in Republican Party of Minnesota v. White, (2002).
Yet the issue of the coercion of the people being solicited, including attorneys as I have previously discussed, surfaced repeatedly. As Justice Sotomayor candidly revealed:
It's very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it's serve on a committee, help organize something, do whatever it is that I'm asking, that that lawyer will say no. Isn't it inherent in the lawyer/judge context that people are going to say yes?
Whether the Court "says yes" to the ability of a state to ban direct solicitation by judicial candidates will most likely result in a closely divided opinion.
Monday, January 19, 2015
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.
Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)
She argues that public interest lawyers have a special interest in this issue, and in this case. That's because
as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.
She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking Minnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).
Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.
Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.
[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.
An excellent piece that adds to the debate. Check it out.
Thursday, January 15, 2015
The Brennan Center issued a report this week concluding that very wealthy "independent" spenders are the primary beneficiaries of the five-year-old Citizens United. Daniel Weiner, the report's author, says, "This is perhaps the most troubling result of Citizens United: In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of our citizens is of relatively little value." Weiner explains that wealthy individuals spend through super-PACs and dark money group, "while often sponsoring candidates like racehorses."
The report also looks at other Citizen United legacies, including the increase in dark money election spending by publicly held corporations, weakening contribution limits, and trampling shareholder and employee rights (because shareholders and employees are often kept in the dark about corporate spending).
So: What to do? David Gans of the Constitutional Accountability Center has one idea. He argues this week in the LA Times that Congress should encourage political participation (campaign contributions) by small donors through contribution tax credits. Gans explains that Congress passed just such a tax credit in 1972, and that it lasted until 1986. But it is no more. He also explains why a tax credit should have bipartisan support (as it did in 1972). Gans elaborates on his argument in an issue brief titled Participation and Campaign Finance: The Case for a Federal Tax Credit.
Reversing the district court, the Third Circuit's opinion today in Flora v. County of Luzerne held that a public defender's complaint contained sufficient allegations to proceed with a First Amendment retaliation claim.
The unanimous panel held that the United States Supreme Court's 2014 decision in Lane v. Franks "clarified that '[t]he critical question under Garcetti [v. Ceballos] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” While the Third Circuit noted that the district judge did not have the "benefit of Lane" when it rendered its decision, it stated that "Garcetti alone should have steered it away from applying" the standard it did, a “related to” employment standard.
So what did Chief Public Defender Flora do that he alleges was protected by the First Amendment? First, after many unsuccessful attempts to procure what he saw as inadequate funding for indigent defense, he eventually initiated a class action lawsuit for the benefit of indigent criminal defendants in state court, and interestingly simultaneously sought relief in federal court from being terminated for this action. Second, the county's notorious "Kids for Cash" scandal had resulted in a 2009 order by the state supreme court of vacatur and expungement of thousands of delinquency adjudications and consent decrees, but in 2013 Flora learned that over 3,000 expungements had not yet occurred. He "brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim," who had been the special master in the case.
Both the lawsuit and the reporting of the failure to expunge were obviously "related to" Flora's position as a public defender. But the Third Circuit rejected the "related to" standard in favor of the "ordinary duties" standard. In this light, its interesting that the court highlights Flora's allegations that
his obligations as an attorney, rather than as the Chief Public Defender, compelled him to make the statements at issue. [And that] the funding crisis and the expungement issue as extraordinary circumstances impelling him to extraordinary speech.
The Third Circuit concludes:
A straightforward application of Lane leads us to conclude that, given those allegations, Flora’s speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities – it was not part of the work he was paid to perform on an ordinary basis. . . Flora’s ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings . . . .To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.
The Third Circuit's opinion is another example of courts retreating from the broad brush of Garcetti and providing First Amendment protections for "whistleblowers," including attorneys who take action based on their ethical obligations.
On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 14, 2015
In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department.
Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.
These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true. However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that
The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.
The Second Circuit then analyzed whether a summary judgment was warranted under Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:
Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.
(emphasis in original). Moreover,
Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.
Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously.
Monday, January 12, 2015
The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage. The town generally requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”
Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral. Today's oral argument seemed inclined toward a contrary opinion.
In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,
Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't isn't isn't the locality here basically adopting the same kind of category based understanding of political speech and its special rule and First Amendment analysis that this Court has very frequently articulated?
Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content. At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns. Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs. Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.
Much of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional.
Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.
As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred." Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.
If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional. It may be that such an application will have what counsel for the town called an "opposite effect" : it "will limit speech because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows." Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."
Wednesday, January 7, 2015
Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.
Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.
UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.
Monday, January 5, 2015
The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests. At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch. McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.
Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint filed today in the Eastern District of Missouri, by the ACLU of Missouri, Grand Juror Doe v. Robert McCulloch.
Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation. A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint. But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.
The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression. Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.
This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness. The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only. As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St. Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
Tuesday, December 23, 2014
Massachusetts Supreme Court Upholds Cyber Harassment Statute and Conviction Against First Amendment Challenge
In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state's criminal harassment statute as applied to "conduct" that largely involved speech and often occurred using electronic means.
The statute provides that whoever "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment."
Of particular First Amendment concern is the statute's provision that the
conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
The facts are rather chilling, escalating from incidents that might properly be called "pranks" to incidents that were clearly malicious. The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons. The defendants and their "handyman" placed a false advertisement on Craigslist, causing many people to arrive at the Lyons' home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm. Next, there was an email entitled "Let the Games Begin!" that included the victims' personal information, including social security number and banking information. Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home. And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15.
On appeal after conviction, the defendants argued that the statute violated the First Amendment, both on its face and as applied. The court found that the facial challenge was not preserved, but addressed it by concluding that the statute provides adequate notice and safeguards that prevent its application to protected speech and noting that similar statutes have been upheld. As to the as-applied challenge, the court found
The defendants' as-applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime . . . [and] as applied to the defendants, does not implicate constitutionally protected speech rights.
The court rejected the argument that because the statute was not directed at "fighting words" it encompassed First Amendment protected speech. Instead, the court explained that there were other categories of speech that were not protected under the Court's 1942 language in Chaplinsky v. New Hampshire regarding unprotected speech as words that are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose." As the Supreme Judicial Court of Massachusetts stated:
"Speech integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants' conduct here. . . ."
The court also evaluated the sufficiency of the evidence. It again rejected the defendants' arguments.
The court's First Amendment analysis quotes the well-known principle that "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Clearly, the conduct - - - and speech - - -of the defendants gave little reason for the court to depart from this principle.
And even should the United States Supreme Court find the "facebook threats" conviction in Elonis v. United States, argued December 1, violates the First Amendment, it would most likely have little impact on the Johnsons' First Amendment claims.
Thursday, December 18, 2014
The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement. The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not
resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.
The unidentified Doe officers argued that video evidence warrants a dismissal. The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence. Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.
Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."
Judge Livingston's views most likely attracted other judges. Now the "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.
Thursday, December 11, 2014
U.S. District Judge Carol Jackson today ordered police to warn crowds before the police use tear gas and to provide "reasonable" time for people to disperse, according to the St. Louis Post-Dipatch. The temporary restraining order comes in a case filed Monday that alleged that police intimidated demonstrators, assaulted them with tear gas and pepper spray, arbitrarily labeled peaceful protestors as unlawful assemblies, and refused to wear name tags--all of which had a chilling effect on the plaintiffs' First Amendment rights.
Judge Jackson reportedly expressed concern that police failed to distinguish between peaceful protestors and criminals.
We previously posted on a federal court temporary injunction in another against the police move-along rule in Ferguson.
Writing exam questions that engage with current controversies can themselves cause controversy.
Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical. Reportedly, this was the question:
"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."
This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class). The controversy sparks in part from the exam's role assignment to work for the prosecutor. (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")
However, the question's task (at least as I'm reading it) is to objectively discuss the merits. Would such a charge contravene the First Amendment? The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests. It also would call for an application of cases, depending on which cases were covered, such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one.
This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions. Indeed, the report does suggest that the controversy is simply not this exam. There seem to be other issues including the lack of diversity at the law school. A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not. The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam.
Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.
(h/t Leis Rodriguez)
Tuesday, December 9, 2014
The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.
At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.
According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.
Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.
As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.
As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).
As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.
December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)
Saturday, December 6, 2014
The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.
The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith 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.
The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation. As we've discussed, 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.
What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.
Monday, December 1, 2014
The United States Supreme Court heard oral arguments today in the "facebook threats" case, Elonis v. United States. As we previously discussed when the Court granted certiorari, the Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof. There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. The doctrine of "true threats" has long been a fraught one. As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech. Equally fraught, as we previously discussed, can be repeating the content of the speech that may or may nor be a true threat given that the "adult content" may run afoul of the policies of internet providers or advertisers.
Today's argument steered clear of specific language of the threats and focused on how a true threat must be proven, or more specifically, how the jury instructions should cabin the definitions. For the petitioner, John Elwood, argued that there needed to be specific intent and that negligence or a reasonable person standard was insufficient. But there were further discussions about whether there must be knowledge and/or purpose. During the argument of Michael Dreeben, Deputy Solicitor General, Justice Alito phrased it this way:
My understanding of the Model Penal Code levels of mens rea is that there is a distinction, but a razor-thin distinction, between purpose and knowledge. So the idea that backing off from purpose to knowledge is going to make very much practical difference, I think is fanciful. There is a considerable difference between distance between knowledge and recklessness.
Although much of the argument delved into common law and Model Penal Code doctrine, the arguments made clear that the First Amendment is intertwined any distinctions. The question of "valuable speech" was raised by Justice Scali, but it was the discussions of rap lyrics that focussed the First Amendment questions most sharply. The Deputy Solicitor General had a difficult time arguing "context": knowing when rap lyrics are entertainment rather than serious threats. Chief Justice Roberts quoted lyrics from the Petitioner's brief - - - lyrics from rap star Emimen - - - and wondered whether these could be prosecuted. On rebuttal, Mr. Elwood noted that Elonis posted "long and painful to read" rap even before the protection order on behalf of Elonis' wife was entered. However, Justice Alito did not seem convinced:
Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist. And so then you are free from prosecution.
The issue here is actual criminalization of the speech, but the use of rap lyrics to prove "intent" in a criminal trial as in the New Jersey Supreme Court case earlier this year might not have been too far from the Court's mind.
At least a few Justices, including Chief Justice Roberts, seemed troubled by the line between true threats and artistic speech.