Wednesday, May 21, 2014

Ninth Circuit Upholds Contribution Disclosure Requirement

The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman.  The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.

The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed.  The Prop 8 Committees challenged the requirement both on its face and as applied.

The court rejected the challenges.  It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest.  As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:

A state's interests in contribution disclosure do not necessarily end on election day.  Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits.  As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests.  In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day.  Absent post-election reporting requirements, California could not account for such late-in-the-day donations.  And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.

As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe.  Judge Wallace dissented on the as-applied challenge.

 

May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

Seventh Circuit Enjoins Portions of Wisconsin Campaign Finance Law

The Seventh Circuit this week issued a sweeping ruling on Wisconsin's campaign finance requirements and permanently enjoined a good part of the law.  The ruling in Wisconsin Right to Life, Inc. v. Barland marks the end of the second round of this broadside challenge to Wisconsin's law.  The first round ended with a Seventh Circuit ruling overturning the state's $10,000 cap on contributions under the First Amendment.

The ruling this week is long and detailed.  That's because Wisconsin Right to Life, Inc., a 501(c)(4) organization, challenged "a dizzying array of statutes and rules" as vague, overbroad, violative of free speech.  It's also because Wisconsin law, according to the court, is "labyrinthian and difficult to decipher without a background in this area of the law," and "has not been updated to keep pace with the evolution in Supreme Court doctrine . . . ."

Portions of the ruling were unsurprising.  Thus the court ruled that Wisconsin's ban on corporate speech and its cap on corporate fundraising for an unaffliated PAC violated the First Amendment under Citizens United

Other portions required a little more work:

Disclaimer Requirement.  The court held that Wisconsin's regulatory disclaimer requirement for independent political communications, as applied only to 30-second radio ads (because that's all that was challenged), was unconstitutional.  Wisconsin law required a certain disclaimer, but regulations went 50 words beyond that disclaimer, adding nothing to it, with no apparent good reason, and cutting into ad time.

Definitions of "political purposes" and "political committee."  The court ruled that the statutory definition of "political purposes" and the regulatory definition of "political committee," which trigger certain registration, reporting, and disclosure requirements, were unconstitutionally vague and overbroad, imposing PAC duties on nearly any political communication.  The court gave Wisconsin law a narrowing construction, ruling that "[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II."

PAC Registration and Reporting Requirements.  The court ruled that the Wisconsin regulation that treats issue advocacy during the preelection period as fully regulable express advocacy if it mentions a candidate is unconstitutional.  It also ruled that the regulation that "imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose."

In short, the court said that the Wisconsin legislature failed to keep up with changes in the doctrine--in particular, the change that Citizens United wrought--and that the Wisconsin Government Accountability Board's attempts to fill in the gaps through regulations simply swept too broadly.

The court's ruling directs the lower court to permanently enjoin the above-mentioned provisions.  The ruling is a sharp kick in the pants to the Wisconsin state legislature to update its campaign finance law.

May 16, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Seventh Circuit Stays Ruling Enjoining Wisconsin Investigation

The Seventh Circuit yesterday stayed Judge Randa's ruling preliminarily enjoining further criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  We posted on Judge Randa's ruling here.

The Seventh Circuit said that because the defendants filed a notice of appeal before Judge Randa issued his injunction, Judge Randa had to show that the appeal was frivolous before acting.  This he did not do.  Here's from the short opinion:

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous.  The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction.  This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.

The ruling puts the ball back in Judge Randa's court, allowing him to certify that the appeal is frivolous and resume the case there.  If he does not, then proceedings in the district court are stayed pending appeal on the merits.

The Seventh Circuit also stayed the portion of Judge Randa's ruling that required the defendants to return or destroy documents "as long as proceedings continue in this court." 

May 8, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

District Court Halts Wisconsin Political Spending Investigation

Judge Rudolph T. Randa (E.D. Wis.) this week granted a preliminary injunction against a criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  The criminal investigation sought information related to WCFG's coordination with Governor Walker's campaign committee and other 501(c)(4) groups, in violation of Wisconsin law, to promote the passage of Wisconsin Act 10, Governor Walker's (successful) effort to sharply restrict union strength in the state (among other things).  Judge Randa's ruling means that the investigation must stop, at least for now.

The ruling is just the latest chapter in a long-running story involving Wisconsin Act 10, Governor Walker, and advocacy (and spending) around both. 

Judge Randa ruled that the investigation violated free speech, because it "was commenced and conducted 'without a reasonable expectation of obtaining a valid conviction.'"  According to Judge Randa, that's because it was based on an interpretation of Wisconsin law that would have banned coordination on issue advocacy (and not candidate contributions)--something that the First Amendment does not allow.

Judge Randa said that WCFG's issue advocacy was core political speech, and that its coordination with other 501(c)(4)s, and even with the Friends of Scott Walker, did not raise any risk of quid quo pro corruption.  Therefore the state could not criminalize it.

Judge Randa rejected the defendants' argument that WCFG's coordination with Governor Walker's campaign created a quid pro quo problem.  He said that that approach "would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption."  He said WCFG simply held the same views that Governor Walker already held, and that therefore there was no risk of corruption.

Judge Randa cited McCutcheon throughout and made a special point of quoting Justice Thomas's concurrence on Buckley's demise:

Buckley's distinction between contributions and expenditures appears tenuous.  As Justice Thomas wrote, "what remains of Buckley is a rule without a rationale.  Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law."  Even under what remains of Buckley, the defendants' legal theory cannot pass constitutional muster.  The plaintiffs have been shut out of the political process merely by association with conservative politicians.  This cannot square with the First Amendment and what it was meant to protect.

Op. at 25.

May 7, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

New Hampshire Supreme Court: Vanity License Plate "Not Offensive to Good Taste" Requirement Violates First Amendment

Relying on its state constitution, the New Hampshire Supreme Court's opinion today in Montenegro v. New Hampshire DMV held that the regulation prohibiting vanity license plates that are "offensive to good taste" was unconstitutional.

David Montenegro, who represented himself, appealed an order denying him a vanity registration plate reading "COPSLIE" and argued that the "offensive to good taste" exclusion in the regulation violated his speech rights under Part I, Article 22, New Hampshire Constitution as well as the First Amendment. 

New_Hampshire_License_Plate

The unanimous court considered the relationship between vagueness and overbreadth, which it contended may certainly overlap, but ultimately settled on vagueness.  The court ultimately concluding that

Because the "offensive to good taste" standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is “good taste.”

This vague standard thus violated the New Hampshire guarantee of free speech according the supreme court.

From the news report, Montenegro seems as "colorful" as his predecessor George Maynard, whose challenge to New Hampshire's "live free or die" motto on its license plates was resolved by the United States Supreme Court in Wooley v. Maynard (1977).  And this case will take its place in developing "license plate jurisprudence":  the "infidel" license plate denial; the unsucessful challenge to the Native American image on the Oklahoma license plate; and the unconstitutional "choose life" license plate offering.

May 7, 2014 in Due Process (Substantive), First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Speech the Justices Agree With

Supreme Court justices are opportunistic supporters of free speech, according to a study by Profs. Lee Epstein (Southern California/Washington University), Christopher M. Parker (Centenary College), and Jeffrey A. Segal (Stony Brook), reviewed by Adam Liptak in the NYT.  That is, "liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative)."

The study looked at 516 free speech cases from 1953 to 2011, "from Hugo Black to Elena Kagan," involving "liberal" and "conservative" speech and concluded that "the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker." 

Among sitting justices, the study found that Justice Scalia had the largest gap between votes for liberal and conservative speech, followed closely by Justice Thomas. 

The liberals "present a more complex story."  The study found that the gap for Justice Ginsburg was small, and for Justice Breyer "negligible."  The study did not include Justices Sotomayor and Kagan, due to lack of meaningful data.

May 5, 2014 in First Amendment, News, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Oral Argument in Lane v. Franks on First Amendment rights of employees

The argument in Lane v. Franks in the Supreme Court sounded like the argument was occurring in the Eleventh Circuit.  But the Eleventh Circuit resolved the case on its nonargument calendar; that's precisely the problem.

Here's my discussion over at SCOTUSBlog.

 

April 29, 2014 in First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

Oral Argument Preview: Employee Speech at the Supreme Court and the Amicus Brief of Law Professors

As we explained when certiorari was granted in Lane v. Franks, the case involves a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.  My preview of Monday's oral argument is at SCOTUSBlog here. 

The Brief of Law Professors as Amici Curiae in Support of the Petitioner, the employee Edward Lane, available on ssrn, advances two basic arguments. 

Witness_stand_in_a_courtroom

The first argument is essentially that the Eleventh Circuit's opinion was a clearly erroneous expansion of Garcetti to include Lane's subpoened testimony in a criminal trial.  Here's an especially trenchant paragraph:

But the Garcetti Court took great pains to distinguish Mr. Ceballos from Mr. Pickering [in Pickering v. Board of Education (1968)], who spoke about what he observed and learned at his workplace and identified himself as a teacher in doing so, and Ms. Givhan [in Givhan v. Western Line Consolidated School District (1979)], who spoke to her own supervisors about what she observed at her workplace and did so while at work. Neither of these employees could have prevailed if any speech they would not have made but for their employment were excluded from the First Amendment’s protections. The sole fact distinguishing Mr. Ceballos from these other two defendants was that neither Mr. Pickering nor Ms. Givhan was required by their employment contracts to engage in the speech for which they were punished. Petitioner was not required by his job duties to testify in court, so his speech is as protected as Ms. Givhan’s and Mr. Pickering’s.

(emphasis in original).  There are similar arguments in the merits briefs, but advancing this doctrinal clarity in the law professors' brief is not misplaced, given that the Eleventh Circuit's summary opinion had so little specific analysis. 

Perhaps more common to an amicus brief are the policy arguments raised here regarding the importance of protecting testimony by public employees from retaliation by their government employers.  The brief's "judicial integrity" argument seeks to draw an interesting parallel, arguing it is

crucial that public employees be able to speak freely and truthfully about government malfeasance so that the judicial process is not distorted. Distortion of the litigation process occurs when public employees do not feel free to testify in various legal proceedings for fear of losing their jobs. This Court expressed analogous concerns in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), where the Court struck down as violative of the First Amendment a federally imposed restriction prohibit- ing Legal Services Corporation (“LSC”)-funded attorneys, as a condition of the receipt of federal funds, from challenging the legality or constitutionality of existing welfare laws. . . . No less than in Velazquez, “[t]he restriction imposed by the [lack of protection for public employee testimonial speech] threatens severe impairment of the judicial function.” Id. at 546.

The brief argues in favor of a bright line rule that testimony is "citizen speech" and thus protected by the First Amendment.  Whether the line should be so bright might be a topic at oral argument given the arguments in the other briefs.

The named authors of the law professors brief, ConLawProfs  Paul Secunda, Scott Bauries, and Sheldon Nahmod, and the signatories, provide a terrific model of "engaged scholarship" and advocacy, and all in approximately 25 pages.

April 25, 2014 in Courts and Judging, First Amendment, Scholarship, Speech, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2014

DC Circuit Panel Finds Conflict Mineral Disclosure Violates First Amendment

In its divided opinion in National Association of Manufacturers v. Securities and Exchange Comm'n, a panel of the DC Circuit Court of Appeals held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment.  

DRC - - - Democratic Republic of the Congo - - - has not only "endured war and humanitarian catastrophe,"  it is also the site of extraction of certain minerals - - - gold, tantalum, tin, and tungsten - - - that are used in a variety of familiar objects (cell phones, automobile parts, and golf clubs) and finance the parties engaged in the violence.   In an attempt to discourage use of these so-called "conflict minerals," Congress required companies to disclose its products as not “DRC conflict free” in the report it files with the SEC and also post the statement on its website.

600px-Single_piece_of_tantalum,_about_1_cm_in_size.
tantalum

Reversing the district judge, who had upheld the law, the panel majority stated that "rational basis review" in the First Amendment context is the "exception, not the rule."  The panel majority rejected the argument that the disclosure was one of "purely factual and uncontroversial information":

it is far from clear that the description at issue—whether a product is “conflict free”—is factual and non- ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.”  By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.

[citations omitted].  Thus, the panel majority found that Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), was inapposite.  Instead, under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the intermediate scrutiny standard for commercial speech, the mandated disclosure failed.  

The panel, however, was divided on this issue.  While the court unanimously upheld various SEC regulations challenged on administrative law grounds, Judge Srinivasan dissented on the First Amendment issue.  Specifically, Judge Srinivasan contended that this opinion should be held in abeyance "pending the en banc court’s decision" in another case "rather than issue an opinion that might effectively be undercut by the en banc court in relatively short order."  The case in question is American Meat Institute v. United States Dep't of Agriculture in which the DC Circuit so recently ordered an en banc hearingRecall that American Meat Institute, requiring labeling of meat products by country of origin, also considered the relationship between Zauderer v. Office of Disciplinary Counsel and Central Hudson - - - and that is the very question certified for en banc review.  Judge Srinivasan was a member of the American Meat Institute panel.  

Given this posture, it seems certain that the Government will seek en banc review. 

 

April 14, 2014 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

491px-Henry_VIII_Art_Gallery_of_Ontario
King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 6, 2014

Sunday Dress: Kort on Revitalizing Tinker

In her article "An Imminent Substantial Disruption: Towards a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline" (forthcoming in Dartmouth Law Journal; available in draft on ssrn), Allison Kort (pictured) revisits the problems and issues with the landmark 1969 First Amendment case of Tinker v. Des Moines Independent Community School District.

Kort

Kort argues that courts "frequently make an end run around Tinker by deferring to the school board on the “reasonableness” of the school’s action, or deciding these cases on the basis of the speech’s content," even as neither "students nor school officials enjoy clear awareness of students’ rights to free speech and expression, and students are subject to personal opinions of the school boards." 

Certainly Kort's contention is demonstrated by cases such as B.H. v. Easton Area School District (the "I heart boobies bracelet" case) in which a divided Third Circuit en banc held the students had First Amendment rights and the United States Supreme Court denied certiorari.  It's also illustrated by the Confederate flag wear cases, with the United States Supreme Court likewise recently denying certiorari. And Mary Beth Tinker, who is "on tour" encouraging students to exercise their First Amendment rights would undoubtedly agree that there needs to be more awareness.

Kort's solution is a revitalization of Tinker, so that courts actually apply Tinker (rather than its progeny - - - Fraser, Hazelwood, and Morse - - - that "chip away" at Tinker) and to apply the "substantial disruption" standard to mean a "imminent danger that a compelling state interest will be violated." 

While not all school speech cases involve attire and grooming regulations, a substantial portion do.  Kort's article will therefore be of special interest to advocates and scholars working in the continuing and contentious field of student dress codes and "dressing constitutionally."

April 6, 2014 in Federalism, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, April 4, 2014

Why McCutcheon Could Be Bad for the GOP

Peter Beinart argues over at The Atlantic that the Court's ruling this week in McCutcheon--that aggregate limits on campaign contributions violate the First Amendment--could haunt the Republican Party.  His claim: Over the long haul, McCutcheon will contribute to the Republican Party's reputation as the party of plutocrats.

From the piece:

A CNN poll this February found that . . . Americans . . . said Republican policies favored the rich over the middle class by a whopping 46 points.

The Supreme Court has now made overcoming that reputation harder. 

. . .

In the 1970s, a liberal Supreme Court fueled right-wing cultural populism.  Today, a conservative Supreme Court is breeding left-wing economic populism.  For the contemporary GOP, the danger of looking like the plaything of America's super-rich outweighs the benefits of increased support from America's super-rich.  Even in the age of the Roberts Court, winning elections generally requires more than just raising more money.  It requires winning more votes.

April 4, 2014 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

En Banc DC Circuit to Hear First Amendment Challenge to Mandatory Labeling of Meat Regulation

In an order today, the District of Columbia Circuit Court that American Meat Institute v. United States Dep't of Agriculture will be heard en banc.  Animated_cow

Recall that in its opinion last week, a panel of the DC Circuit upheld a requirement mandating the labeling of meat by country of origin.  Resolving the First Amendment challenge involves a construction of  Zauderer v. Office of Disciplinary Counsel (1985), and the panel itself suggested that the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."

Here's the issue as the court's order for simultaneous supplemental briefs phrases it:

Whether, under the First Amendment, judicial review of mandatory disclosure of "purely factual and uncontroversial" commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), or whether such compelled disclosure is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980).

The briefs are due April 21. 

 

April 4, 2014 in Cases and Case Materials, First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Thursday, April 3, 2014

Second Circuit Holds NYC Can Ban Religious Services in School Buildings

Does a city policy governing "extended use" of school facilities that excludes permits for the "purpose of holding religious worship services, or otherwise using a school as a house of worship" violate the First Amendment?

The Second Circuit in its opinion in Bronx Household of Faith v. Board of Education of the City of New York answered in the negative, a majority of the panel holding that the policy, Regulation I.Q., does not violate either the Free Exercise Clause or the Establishment Clause.

If this controversy sounds familiar, that would not be surprising.  We discussed it here, and as today's opinion notes, the litigation has been "long-running," citing Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (“Bronx Household IV”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89 (2d Cir. 2007) (“Bronx Household III”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342 (2d Cir. 2003); Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997). 

800px-Winslow_Homer_-_Country_School
Country School by Winslow Homer circa 1873 via

Today's opinion  - - - Bronx Household V - - - reverses the district judge's grant of an injunction on Free Exercise claims which were arguably not before the courts previously.  The majority of the Second Circuit panel, in an opinion by Judge Pierre Leval joined by Guido Calabresi, carefully refuted the district judge's reasoning.  In short, the panel majority held that Locke v Davey, 540 U.S. 712 (2004) (finding that the exclusion of devotional theology degree programs from eligibility for state scholarships does not violate Free Exercise Clause) was more apposite than Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)(holding that an ordinance "targeting" the Santeria practice of animal sacrifice merited strict scrutiny and violated the Free Exercise Clause). 

The panel rejected the argument that the Regulation I.Q. targets religion generally or targets religions that have worship services.  The panel also rejected the attempt to distinguish the scholarship in Locke v, Davey, noting that under the "extended use" policy, the city subsidizes the use of school facilities since the organizations can use the facilities without cost.  The panel also found that the city's desire not to violate the Establishment Clause was a valid one.  As the panel summarized:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.

As to the Establishment Clause, the court rejected Bronx Household's argument that for the city to determine what constituted "religious worship services" would infringe the Establishment Clause.  Bronx Household relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) - - - an example of how doctrine has been changing during this protracted litigation - - - but the majority expressed a very different view:

Hosanna-Tabor, moreover, does not merely fail to support Bronx Household’s claim of Establishment Clause violation due to excessive entanglement by the Board; it actively contradicts the argument. This is because in Hosanna-Tabor the Supreme Court itself did precisely what the District Court found a governmental entity prohibited from doing.

In other words, when the United States Supreme Court "undertook to make its own determination whether the plaintiff was a minister subject to the ministerial exception," it engaged in the very same type of determination that Bronx Household argues would violate the Establishment Clause. 

If Senior Judge John Walker, dissenting, has his way, the Court might have a chance to discuss this Establishment Clause rationale again.  Walker contends that this "case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review."  Most certainly, Bronx Household will be quoting that language in any petition seeking Supreme Court review.

April 3, 2014 in Courts and Judging, Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 2, 2014

Court Strikes Aggregate Campaign Contribution Limits

A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits.  The five-justice majority ruled that the limits violated the First Amendment.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

Our most recent post on the case is here.

Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties.  Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate.  (The Court said that base limits are still constitutional, as are disclosure requirements.)

The majority said that under aggregate limits

A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.

It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.

The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.

The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.

April 2, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

DC Circuit Upholds Meat Labeling Requirement Against First Amendment Challenge

In its relatively brief but potentially exceedingly important opinion in American Meat Institute v. United States Dep't of Agriculture, the District of Columbia Circuit upheld a meat labeling rule requiring increased specificity.  As the court explained, the 2013 rule regarding country of origin newly required the "production step," so that

instead of saying, “Product of the United States,” a label for Category A meat will now read, “Born, Raised, and Slaughtered in the United States.” Similarly, Category B meat might now have to be labeled, “Born in X, Raised and Slaughtered in the United States,” and Category C meat “Born and Raised in X, Slaughtered in the United States.”

511px-Cowicon.svgThe meat producers argued that the new rule exceeded statutory authority and that it violated the First Amendment.  They sought a preliminary injunction which the district judge denied. 

The DC Circuit's First Amendment analysis rejects the meat producers' arguments that Zauderer v. Office of Disciplinary Counsel (1985) should not be dispositive.  The panel opinion noted that Zauderer held that  mandated disclosures do not violate an advertiser’s First Amendment rights,  “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”  But it rejected the meat producers' argument that the DC Circuit's opinion in Reynolds v. FDA held that Zauderer should be "applied only to disclosure mandates aimed at correcting deception" (emphasis in opinion).  The court noted that this interpretation also avoided a disagreement with other circuits, and also noted that "reasonable judges" could read Reynolds as so limiting Zauderer and thus suggested that the

full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information.

However, the panel provided its conclusion that other government interests were adequately served by the mandated labeling, including enabling

a consumer to apply patriotic or protectionist criteria in the choice of meat. And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.

Certainly the labeling of meat is not the other type of labeling currently being litigated in the courts as the opinion itself discusses.  (I've elsewhere argued that mandating clothes be labeled sweat-free or not should survive a First Amendment challenge).  The DC Circuit might do well to take the suggest for en banc consideration given the issue's likelihood of recurring.

[image via]

UPDATE: The DC Circuit has granted en banc review.

March 28, 2014 in First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 26, 2014

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

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image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.

JUSTICE SCALIA: Well, okay.

MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Prätorianer
Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

March 26, 2014 in First Amendment, Fourth Amendment, Interpretation, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Supreme Court Declines Review of Arbitration Open Access Case

Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment. 

As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case.  But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one.  Especially if the First Amendment access to "trials" should continue to have substantive meaning.

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"le secret" via

 

It's always dangerous to speculate why the Supreme Court declines to enter the fray, but  it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.

March 24, 2014 in Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Illinois Supreme Court: State's Eavesdropping Statute Unconstitutional

Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?

In its opinion in People v. Clark, and a companion opinion in People v. Melongo, the Illinois Supreme Court held the state's statutory criminalization of eavesdropping unconstitutional.

Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.

In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."  The court recognized the ubiquity of smartphones and other recording devices.

Smartphone_as_Child_Toy

Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private."  It gave these examples:

  1.  a loud argument on the street;
  2. a political debate in a park;
  3. the public interactions of police officers with citizens (if done by a member of the general public); and
  4. any other conversation loud enough to be overheard by others whether in a private or public setting.

Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.

Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo.  The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial.  Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark.  Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent.  The court similarly found this provision overbroad.

It will be interesting to see how the Illinois legislature responds.

 [image via]

March 24, 2014 in Criminal Procedure, Due Process (Substantive), Fifth Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Eleventh Circuit Finds Private Property Loitering Buffer Zone Violates First Amendment

In its relatively brief opinion in today in Bell v. City of Winter Park, a panel of the Eleventh Circuit found the portion of an ordinance allowing a 50 foot buffer zone around a private residence related to loitering violated the First Amendment. 

The ordinance provision, amending § 62-77, provided:

A person regularly residing in a ‘dwelling unit’, as that term is defined in Section 62-79, may post a ‘no loitering’ sign on the property of such residence in which the person regularly resides, and an officer of the City may enforce this section against any person remaining in a public area, including a park, sidewalk, street, public right-of-way, after the sign is posted, who loiters, stands, sits, or lies before or about the dwelling unit on which property the ‘no loitering’ sign is posted, or remains on public property within a buffer area as defined in Section 62-79, of fifty (50) feet from the property line of such residence.

The opinion by Judge Gerald Tjoflat (who has been a circuit court judge since 1975) reasoned that while the provision may look content neutral, it allowed private persons to prohibit speech in public fora for content or viewpoint reasons. 

800px-Jack_Kerouac_House_-_Winter_Park_Florida
Jack Kerouac's House, near [in] Winter Park, Florida via

Further, there was "immense discretion." 

The amount of discretion § 62-77 provides is alarming. Private citizens are permitted to have the City regulate speech on traditional public fora for any reason. Additionally, § 62-77 provides no standards for enforcement, leaving City officers free to enforce the prohibition on the basis of the content or viewpoint of an individual’s speech. We therefore hold that § 62-77 is unconstitutional.

While reversing the district judge on this issue, the court did affirm the judge and uphold the constitutionality of another subsection of the ordinance, prohibiting "any person or persons to picket, protest or conduct any picketing or protesting activity within a buffer area of 50 feet from the property line of any dwelling unit in the City of Winter Park."  As the Eleventh Circuit panel correctly noted, this provision of the ordinance was "nearly on all fours" with Frisby v. Schultz, (1988). The Court in Frisby valued the "well-being, tranquility, and privacy of the home” and construed the law as a valid time, place, and manner regulation.

The court's distinction between "loitering" and "picketing" is a careful and noteworthy one.

March 20, 2014 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (2) | TrackBack (0)