Constitutional Law Prof Blog

Daily Read: Yochai Benkler on Bradley Manning

Law Prof Yochai Benkler's article in the New Republic, "The Dangerous Logic of the Bradley Manning Case" argues that the prosecutions theory of aiding the enemy is uniquely broad. 

Benkler (pictured) makes the comparisons between the New York Times and Wikileaks, drawing not only yesterday's statement by Manning but also on a January hearing. 

For Benkler, the aiding the enemy offense strikes at the heart of the First Amendment:

It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.

Benkler's contribution is a must-read for anyone following the Manning prosecution.

RR

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then. 

Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

RR
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Bradley Manning's Statement

Developments in the Bradley Manning case include the news that Manning has pleaded guilty to some charges - - - but not to the charge of aiding the enemy - - - as reported by the NY Times. 

While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.

Of particular interest are Manning's statements undermining his intent to aid the enemy and supporting his claim of whistle-blowing, including his choice of recipients for his information.

At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.

Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.

I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.

Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971).   Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.

But Bradley Manning's case is proving unique.

RR
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Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

• have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
• pay a license tax of $300;
• be located within particular business districts, excluding certain other business districts.

"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
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Is Anti-Solicitation Ordinance Content-Based?

The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance.  The court remanded the case for further proceedings.

The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance.  If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).

The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall.  The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech.  The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like).  The testimony was not part of the record on the City's motion to dismiss.

The Fourth Circuit reversed.  It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it.  A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.

Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future.  But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent."  And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment). 

The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.

SDS

Can a Legislature Criminalize Legislation?

A bill introduced in the Missouri legislature would criminalize the introduction of other legislation.  HB 633 would amend the state statutes to provide:

Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.

The bill is likely unconstitutional under its state constitution. 

The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:

Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.

The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches.  Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.

RR
[image: Missouri State Capitol via]

Court to Test Individual Campaign Contribution Limits

The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees.  (The jurisdictional statement is here.)  While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.

It's not clear how much the case could matter to the sheer amount of money in politics.  That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations.  But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics.  (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.)  It could be the next step after Citizens United in further opening the money spigot.

The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act.  BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year.  These are called "base limits."  But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years.  These are the "biennial limits." 

McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights.  In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.

To see why, start with the old biennial limit upheld by the Court in Buckley.  Back then, there were no base limits for contributions to PACs or national or local parties.  (There was a base limit on contributions to candidates, though--$1,000 per.)  McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates.  How?  By contributing massive amounts through political committees that would simply funnel the money to the candidate. 

McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way.  This is because BCRA's base limits themselves restrict circumvention.  (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate).  McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights.  (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.)  McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit.  He claims that that limit serves only to prevent him from contributing to as many people as he'd like.

McClutcheon also argues that the biennial limits are too low.

The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit).  This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction.  Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction.  This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics). 

SDS

Daily Read: Heins on Academic Freedom

The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings.  Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks. 

Heins can be viewed takling about her book in a series of videos, available here; an excerpt from The Chronicle of Higher Education is available here.

For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics.  Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose.  Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.

And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read. 

RR

Is the First Amendment Civil Rights Claim in Jeopardy?

Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights.  The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers.  But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.

(A Bivens claim is a suit against a federal officer for a violation of a constitutional right.  There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights.  "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)

It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them.  And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).

But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.

Iqbal famously reaffirmed that there's no vicarious liability under Bivens.  It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims.  But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment.  The Court wrote:

Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants."  [Citations omitted.]  That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination.  For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause.  Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment.  Bush v. Lucas, 462 U.S. 367 (1983).

Iqbal at 11.  (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)

The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.

Judge Boasberg rejected the argument:

Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.

That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977).  And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.

This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine.  Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.

Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site.  Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House.  In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.

SDS

Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

RR

Georgia Bill: Defamation by Image

Apparently upset by an image of a legislator's head being photo-shopped onto the image of a porn star's body, the Georgia legislature is entertaining a bill that would define such an act as defamation.

Georgia HB39 provides that a person commits defamation when he or she causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified.

The reasonable person standard here would probably exclude application to the upsetting image - - - which is clearly and inartfully photoshopped - - - and thus not satisfy the elements of the statute. 

As for the First Amendment considerations, the reasonable person standard might serve to distinguish the statute from the Campari advertisement parody at issue in Hustler Magazine v. Falwell. But as a defamation statute, the Georgia bill fails to incorporate the public figure malice standard firmly established since 1964's  NYT v. Sullivan and surely a legislator is a quintessential public figure.

The bill's combination of the defamation tort with "obscenity" is not likely to solve any First Amendment issues, especially since the bill's definition of obscene depiction is "a visual depiction of an individual displaying nudity or sexual conduct."   Simple nudity as coextensive with obscenity has been constitutionally suspect since 1973's Miller v. California.

The bill is merely a bill, but it needs some serious revision for it to become a constitutional statute.

RR
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Daily Read: Congressional Research Service on Leaks of Classified Information

The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.

Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information." 

 

The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.

The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues.  While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.

RR
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Daily Read: Academic Freedom and Controversial Programs

ConLawProfs often appear on controversial panels and law schools often present controversial programming.  Are there limits?

Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late.  As Professor Currah writes in The Chronicle of Higher Education:

Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.

The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding.  The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:

The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.

For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise.  For everyone involved in the academic enterprise, Currah's piece is an important read.

RR

Unconstitutional Right to Work?

No sooner had we posted on constitutionalizing right-to-work laws--and Michigan Governor Rick Snyder's certification to the state supreme court certain questions regarding his state's new right-to-work laws--than the Michigan ACLU filed suit in state court arguing that Michigan's laws are unconstitutional.

The ACLU complaint argues that the process of passing the laws violated the state's Open Meetings Act, the state constitutional right to assemble, and the First Amendment.  In particular, the ACLU argues that the legislature closed and locked the Capitol to keep out additional protestors as the lame-duck legislature debated and voted on the bills on a super fast track.  

The ACLU's legal arguments are different than the questions that Governor Snyder certified to the state supreme court.  Governor Snyder's certification appeared to be designed to short-circuit promised litigation against the laws--on the merits.  But the ACLU is now challenging the laws on the process.  This suit, if not similarly short-circuited and if successful, could hold up implementation of the law, notwithstanding Governor Snyder's certified questions yesterday.

SDS

Libel and the First Amendment in the Iowa Supreme Court

It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse.  But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.

The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements."  As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity."  The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.

This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.

The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."

The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book.  The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants."   In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:

"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."

Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment.  Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.

RR
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Seventh Circuit Finds Indiana Statute Banning Sex Offenders from Social Media Unconstitutional

In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.

At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.

Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."

Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.

The court made clear that the problem was the statute's overbreadth with its caveat:

this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.

Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.

RR

Seventh Circuit Panel Upholds Wisconsin's Act 10

Reversing a federal district judge's holding that portions of Wisconsin's controversial Act 10 regarding public unions, the Seventh Circuit split panel's opinion in Wisconsin Education Association Council v. Walker upheld the constitutionality of the act. 

Recall that the federal district judge had held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarantees and Act 10's prohibition of dues withholding for general employees violated the first amendment.

Union members protesting in Wisconsin, 2011

The Seventh Circuit majority emphasized that the Act 10's "speaker-based distinctions are permissible when the state subsidizes speech. Nothing in the Constitution requires the government to subsidize all speech equally." 

Moreover, the Seventh Circuit majority found that Act 10 was viewpoint neutral, even as it admitted that

the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law.

On the Equal Protection claim, the panel majority applied rational basis review, in which "the law is presumed constitutional, and we impose a weighty burden on the Unions—they must “negative every . . . basis which might support” the law because we will uphold it “if there is any reasonably conceivable state of facts” supporting the classification."  The panel rejected the argument that heightened rational basis attributable to animus should apply: "unfortunate as it may be, political favoritism is a frequent aspect of legislative action."

Judge David Hamilton dissented from the majority's decision upholding Wisconsin’s selective prohibition on payroll deductions for dues for some public employee unions but not others on the basis of the First Amendment.   In his lengthy dissent,  Judge Hamilton differs on the central point of viewpoint neutrality, noting that while "on its face, Wisconsin’s Act 10 seems viewpoint-neutral: public safety unions can have dues withheld from paychecks, while other public employee unions cannot."  But he quickly observes: "Facial neutrality, however, is not the end of the matter."

Hamilton agreed with the district judge and credited the unions' arguments that Act 10 was a

pretext for viewpoint (here, political) discrimination. The first is the close correlation between various unions’ political endorsements in the 2010 Wisconsin governor’s race and their ability to continue payroll deductions. The second is the flimsiness of the State’s proffered rationales for drawing the line as it did between public safety and general employees and for barring payroll deductions of union dues for all but public safety employees. The third is the overtly partisan political explanation for the Act that was offered in the legislative debate.

While there are some minor disagreements on doctrine between the majority and dissenting opinions, for the most part they are in accord.  Where they differ is in their essential understanding of whether the facts satisfy the requirement of viewpoint neutrality.  Dissenting Judge Hamilton seems to have the better opinion in this regard; the majority opinion too often seems poised to conclude their is viewpoint discrimination and then retreats without explanation.

Perhaps the Seventh Circuit will proceed with en banc review.

RR

 

Third Circuit: No Right to Access Polling Places

A three-juge panel of the Third Circuit ruled in PG Publishing Co. v. Aichele that a newspaper had no First Amendment right to access polling places.  The lengthy and careful opinion affirms a lower court ruling and creates a split between the Third and Sixth Circuits on the proper framework for analysis of this kind of claim, dealing with the right of access to the polling place: apply the experience-and-logic test from right-to-access jurisprudence (as the Third Circuit would have it); or apply strict scrutiny, apparently based on free speech forum analysis (as the Sixth Circuit would have it)?

The case arose out of attempts by PG's reporters to gain access to polling places in Allegheny and Beaver Counties, Pennsylvania, in order to report on that state's implementation of its voter ID law in the last election.  But state law bans all but election officers, clerks, machine inspectors, overseers, watchers, voters, those giving assistance to voters, and police officers from the polling place during elections.  After PG reporters were denied access in those two counties, PG sued, arguing that the ban violated its free speech and equal protection rights.  (Equal protection, because it claimed that other counties allowed access to reporters from other papers, and that Allegheny and Beaver counties previously allowed access to PG reporters.)

The Third Circuit rejected the claims.  The court ruled that free speech analysis didn't even apply (because there was no speech).  (The court nevertheless made clear that a polling place is a non-public forum.)  Instead, the court looked to right-to-access, or "right to gather news," jurisprudence--a right, like free speech, that the media enjoy only on par with the public generally.  Thus the court applied the Richmond Newspapers (or the "experience and logic") test, "balanc[ing] the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny.  If a right of access exists, any restraint on that right is then evaluated under strict scrutiny."  Op. at 25.  (The court reviewed its own opinions applying the experience-and-logic test to any traditionally open government proceeding, not just judicial proceedings, and concluded that it applies to polling places.)

Applying the test, the court first reviewed the history of voting (the "experience" prong) and wrote that "the historical record is insufficient to establish a presumption of openness in the context of the voting process itself."  Op. at 38.  Next, on the "logic" prong, the court compared the benefits of openness (preventing election fraud, preventing voter intimidation, and especially here checking and reporting on the implementation of voter ID) to the dangers (overcrowded polling places, revealing private information of voters) and ruled that "the 'logic' prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process."  Op. at 43.  The net result: "both prongs of the "experience and logic" test militate against finding a right of access in this case."  Id.

In applying the experience-and-logic test, the court rejected the approach of the Sixth Circuit in Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004).  The Sixth Circuit in Beacon Journal applied strict scrutiny, not experience-and-logic balancing, to a similar claim and overturned Ohio's restriction on access.  The Third Circuit said that Beacon Journal erroneously applied speech principles--and public forum principles, at that--and thus deviated from the clear approach of the Supreme Court in cases like this.  It thus declined to follow Beacon Journal.

As to equal protection, the court rejected PG's three theories--a class-of-one theory, a selective enforcement theory, and an inconsistent application theory--all because PG failed to show any intention discrimination against its reporters, or that the state treated PG's reporters any differently than reporters from any other paper.

SDS

Prostitution Pledge Going to the Supreme Court

The United States Supreme Court today granted certiorari in United States Agency for International Development v. Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction.

The case involves a First Amendment challenge to a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq.:

 No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.

A divided panel of the Second Circuit held the provision unconstitutional in July 2011, affirming the district judge.  The majority found it important that the purpose of the program and the mandated message were not synonymous.  At times, the panel reasoned,

the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

As we discussed, the Second Circuit refused to grant a rehearing en banc, over a dissent joined by three judges, with an interesting concurring opinion discussing the doctrinal disarray.  This focused the disagreement with the Sixth Circuit and made the issue ripe for certiorari.

Justice Kagan did not participate in the grant of certiorari and will presumably be recused from what promises to be a major First Amendment case of the Term.

RR
[image: Prostituierte in Brants Narrenschiff (1506) von Albrecht Dürer via]