Tuesday, February 9, 2016

Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group

The Center for Medical Progress (CMP)  - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late. 

Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws.  Planned Parenthood has recently sued CMP under RICO and for various tort-like claims. 

Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress.  In July, Judge Orrick issued a TRO.  The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:

(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;

(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and

(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

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Image by Jacek Halicki circa 1982 via

This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:

The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit.  Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit.  Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."

February 9, 2016 in Abortion, Current Affairs, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0)

Thursday, January 28, 2016

Park Service Inauguration Regs Don't Violate Free Speech

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Steven D. Schwinn,  John Marshall Law School

Judge Paul Friedman (D.D.C.) ruled today in ANSWER v. Jewell that the National Park Service regs setting aside a portion of the Presidential inauguration route for the inauguration committee and banning sign supports do not violate free speech.

The case challenged NPS regulations that set aside 18% of the sidewalk and park space along the inauguration parade route for the Presidential Inauguration Committee, a private, non-profit that represents the interests of the President-Elect, and requires other groups that wish to protest or speak to get a permit. Judge Friedman upheld the regulation against a First Amendment challenge, ruling that the PIC was government speech (under the factors in Walker v. Texas and Pleasant Grove City v. Summum), that the set-aside for PIC therefore did not constitute viewpoint-based discrimination against other groups that wished to speak against PIC's message, and that the set-aside and permit requirement were content neutral and otherwise satisfied the test for speech in a public forum.

Judge Friedman also ruled that the ban on sign-supports was content-neutral and satisfied the public forum test. (The government's interests were safety--sign-supports could be used as a weapon--and marshaling parade viewers through security checkpoints quickly and efficiently.) Judge Friedman noted that this ruling conflicted with the Ninth Circuit in Edwards v. Coeur d'Alene, however: the Ninth Circuit said in that case that a ban on sign-supports failed to leave open ample alternative channels of communication, because "there is no other effective and economical way for an individual to communicate his or her message to a broad audience during a parade or public assembly than to attach a handle to his sign to hoist it in their air."

The plaintiff in the case, the anti-war and anti-racism group ANSWER, may have inadvertently contributed to the result: Judge Friedman wrote at several points in the opinion that ANSWER had touted its previous protests, under similar restrictions, as successful--apparently demonstrating that ANSWER can get its message out effectively (that it has ample alternative channels for communication) even with the NPS regs.

January 28, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, January 19, 2016

Court Hears Oral Arguments in First Amendment Public Employee Case: Heffernan v. City of Paterson

The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.

At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment.  On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong."  On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error.  This was perhaps best expressed by Justice Ginsburg:

And I thought ­­ - - - and unlike Justice Scalia ­­ - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not ­­ - - - thou shalt not act on the basis of someone's expression, speech or belief.

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Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment.  There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.

Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?"  But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:

JUSTICE KENNEDY: You want this Court to  hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold.

MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.

The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee.  Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation." 

Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right. 

The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.

January 19, 2016 in Association, Elections and Voting, First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (2)

Saturday, January 16, 2016

United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.

The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations. 

As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."  The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.  

There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision.  The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution.  The first provision is the one at the heart of this dispute.  Placed in the state constitution's "Bill of Rights," Art. I §7 provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.

It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground.  To supply such funds, the state officials decided, would violate the state constitution. 

Trinity Lutheran Church articulated the issue in its petition for certiorari as

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

It argues that the Eigth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke.  But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.

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January 16, 2016 in Equal Protection, Federalism, First Amendment, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, January 15, 2016

New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case

In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding.  Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred. 

16yr-logo-2015-revOn the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit.  Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing  Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable." 

Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."

Thus the court rejected the free exercise claims.  Similarly, the court rejected the free speech claims of compelled speech and free association.  On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive: 

Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.

The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.

In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop.  The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend.  Nevertheless, the issue is far from settled and more decisions likely.

UPDATE:  The owners of Liberty Ridge will reportedly not appeal.

January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)

En Banc Ninth Circuit Finds "Stolen Valor" Falsely Wearing Medal Provision Violates First Amendment

In its opinion in United States v. Swisher authored by Judge Sandra Ikuta, the en banc Ninth Circuit found that the provision in 18 USC §704(a) that criminalized the unauthorized wearing of any military medal violates the First Amendment.  Swisher was photographed wearing "the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze “V,” and UMC Expeditionary Medal," none of which he ever received.

The Court's opinion occurs in the shadow of the United States Supreme Court's 2012 decision in United States v. Alvarez which held that 18 USC §704(b) - - - prohibiting false statements about military medals - - - violated the First Amendment.  A panel of the Ninth Circuit had previously held in United States v. Perelman that Alvarez was not dispositive regarding §704(a) because wearing the medal was conduct rather than speech, akin to "impersonation" rather than expression.  The en banc opinion in Swisher explicitly overruled Perelman "to the extent inconsistent with this opinion."  

1024px-Purple_Heart_caseThe en banc opinion in Swisher held that while wearing the medal may have been expressive conduct, the government's purpose in regulating that conduct was aimed at regulating the message conveyed by the expressive conduct rather than the conduct itself.  Judge Ikuta's opinion interestingly relied upon the Court's decision last Term in Reed v. Town of Gilbert as "authoritative direction for differentiating between content-neutral and content-based enactments." 

Thus, Judge Ikuta's opinion determined that the lenient standard of United States v. O'Brien for expressive conduct was not the correct analysis and instead the standard as articulated in Alvarez should apply.  But what is the Alvarez standard, given that Justice Kennedy's opinion for a plurality applied an exacting scrutiny standard and Justice Breyer's concurring opinion applied more of an intermediate scrutiny test?  The en banc Ninth Circuit adroitly circumvented the need to decide the United States Supreme Court's holding by beginning with Justice Breyer's "less demanding standard": consideration of the seriousness of the speech related harm the provision will likely cause; evaluating the nature and importance of the provision's countervailing objectives; and the extent to which the provision will tend to achieve those objectives and whether there are other, less restrictive means, of doing so."  The en banc Ninth Circuit found that the criminalizing of inappropriately wearing military medals failed the intermediate Breyer standard and thus would obviously fail the stricter more exacting scrutiny standard of the plurality.

Not surprisingly Judge Bybee, who wrote a vigorous dissent in 2010 when a panel of the Ninth Circuit held the provision in Alvarez unconstitutional, dissented in Swisher, joined by Judges N.R. Smith and Watford.

The practical consequences of the Ninth Circuit's en banc opinion are marginal: the statute has already been amended and Swisher was also convicted on other provisions including fraud.  However, the doctrinal consequences of the opinion include an important demonstration of an application of Alvarez and the even more important holding clarifying that "wearing" is not always mere conduct evaluated at the lowest levels of First Amendment scrutiny.

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January 15, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Recent Cases, Speech | Permalink | Comments (0)

Wednesday, January 13, 2016

Brennan Center on Campaign Finance

Check out this new Brennan Center report on the recent spate of sharply divided Supreme Court rulings that opened the spigot on money in politics.

In Five to Four, Brennan Center attorneys Lawrence Norden, Brent Ferguson, and Douglas Keith show how "six closely divided Supreme Court decisions in the last decade contributed to some of the most disturbing trends in American elections"--things like super PACs, dark money, unlimited corporate and union spending, and radically increased total contributions to candidates and parties. (Each of these gets its own chapter.)

Four of the nine justices strongly disagreed with these decisions, and if one more justice had joined them, our ability to regulate big money in politics, and to give ordinary Americans more of a voice in the political process, would be very different today.

In other words, the last few years of campaign financing are not "normal," or "inevitable," or "just the way things are." To the contrary, in the modern era, they are the aberrant result of a single swing vote on the Supreme Court, which upended decades of carefully crafted campaign finance laws, and they can be reversed.

January 13, 2016 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0)

Tuesday, January 12, 2016

The Demise of Public-Sector Fair Share

The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Ass'n, the case testing whether a state's public-sector union fair-share requirement violates the First Amendment.

Answer: Almost certainly yes.

Few cases are predictable as this one, given the Court's lead-ups in Harris and Knox (both sharply criticizing Abood, the 40-year-old case upholding fair-share requirements against a First Amendment challenge). And few oral arguments foretell the Court's and the dissent's analyses and split so clearly as yesterday's argument.

The conservative justices, including Kennedy, have made up their minds against fair share (and in favor of overruling Abood). The progressives have made up their minds in favor of fair share (and keeping Abood on the books). Both sides rehearsed the arguments that we'll see when the opinion comes out later this year.

All this made the oral arguments seem unnecessary. And maybe they were. After all, those opposing fair-share didn't seem at all troubled by the absence of a factual record in this case--even though some amici briefed significant practical labor-relations problems that arose without fair share. Instead, those opposing fair share seemed perfectly willing to rely on their own intuition about how public-sector labor relations work.

The facts don't really matter, so why should the legal arguments, when everybody's minds are made up, anyway?

Some of the early discussion focused on the extent of fair-share opponents' First Amendment claim: does it apply only to public-sector unions, or also to private-sector unions? Michael Carvin, attorney for the fair-share opponents, was clear: it only applies to public-sector unions. That's because collective bargaining for public-sector unions inevitably involves public issues--so a fair-share requirement compels non-union-members to pay for public advocacy (with which they disagree). (Private-sector collective bargaining, in contrast, involves only private employment issues.) Moreover, Carvin said that it's not always so easy to sort out what union speech goes to collective bargaining issues, and what goes to other public advocacy--a problem administering Abood that goes to its stare decisis staying power (see below).

And that leads to Carvin's next point, a clever twist on the concern about free-riders: fair-share requirements don't serve the interest of avoiding free-riders (as conventional wisdom and Abood would have it); instead, fair-share requirements let the union free ride on non-members' fair-share contributions. Carvin turned the traditional free-rider concern on its head.

And the conservatives, including Justice Kennedy, accepted all this. (Chief Justice Roberts even added at one point that if unions are so popular, the traditional concern about free riders is "insignificant.") Indeed, Justice Kennedy stated the opponents' case as clearly (and certainly as concisely) as anyone yesterday:

But it's almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are -- strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?

And you -- the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.

Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it -- correct me if I'm wrong -- agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.

The progressives pushed back with stare decisis: shouldn't the Court give some weight to Abood? Carvin said that overruling Abood would actually better square the jurisprudence. But that didn't sit well with Justice Kagan:

So really what your argument comes down to is two very recent cases, which is Harris and Knox. And there you might say that Harris and Knox gave indications that the Court was not friendly to Abood. But those were two extremely recent cases, and they were both cases that actually were decided within the Abood framework. . . .

So taking two extremely recent cases, which admittedly expressed some frustration with Abood, but also specifically decided not to overrule Abood, I mean, just seems like it's nothing of the kind that we usually say when we usually say that a precedent has to be overturned because it's come into conflict with an entire body of case law.

Some on the left also wondered whether striking Abood also mean striking mandatory bar fees and mandatory student fees (previously upheld by the Court), and whether it would disrupt reliance interests (in the form of the thousands of public-sector union contracts that rely on it).

Look for all these points in the opinion, when it comes down. And look for the conventional 5-4, conservative-progressive split. If the result in this case wasn't clear going into arguments yesterday (though it was), then arguments yesterday certainly clarified it.

(The second question in the case--whether non-chargeable expenses need to follow an opt-in rule, instead of an opt-out rule, got very little attention. This issue, too, is all but decided, by the same split: the Court will almost certainly require opt-in.)

January 12, 2016 in Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (1)

Tuesday, December 22, 2015

En Banc Federal Circuit Holds "Disparaging" Trademarks Ban Violates First Amendment

In its more than 100 page opinion today in In Re Simon Shiao Tam, the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment.  

The central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band" (pictured below).

The United States Court of Appeals for the Federal Circuit, established in 1982 by a the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims, was reviewing the denial of the trademark by the Patent and Trademark Office (PTO).  A panel of the Federal Circuit rejected Tam's First Amendment arguments, finding that it was bound by circuit precedent from 1981 that held that the First Amendment was not implicated by the denial of trademark registration. 

BoiseThe Circuit sua sponte ordered rehearing en banc.  The majority opinion, authored by Judge Kimberly Moore (who was formerly a law prof at George Mason School of Law), was joined by 8 other judges, including Chief Judge Sharon Prost, reasoned that much had changed since the 1981 circuit precedent - - - including the jurisprudence offering protections for commercial speech under the First Amendment - - - and that the First Amendment should apply.

Not only should the First Amendment apply, it is violated in the most egregious manner: viewpoint discrimination. Moore's opinion for the majority stresses that the "disparagement" provision "discriminates against speech because it disapproves of the message conveyed by the speech" and is therefore subject to strict scrutiny.  That the government might itself not disapprove but "claims that some part of the populace will disapprove of the message" is irrelevant.  When the PTO refuses to register a trademark under this provision,"it does so because it believes the mark conveys an expressive message—a message that is disparaging to certain groups."  Mr. Tam was undoubtedly engaging in expressive speech:

Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech.

The court rejected the government's three arguments, including its argument that the First Amendment did not apply since no speech was prohibited.  The government's second argument - - - that trademark registration is government speech - - - was likewise rejected.  Here, the court distinguished last Term's decision in Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not).  As for public perception, the court used a copyright analogy: just as the public does not associate copyrighted works such as Fifty Shades of Grey with the government, "neither does the public associate individual trademarks such as THE SLANTS with the government."  

The court likewise rejected the government argument that § 2(a) merely withholds a government subsidy for Mr. Tam’s speech and is valid as a permissible definition of a government subsidy program: "Trademark registration does not implicate Congress’s power to spend or to control use of government property."  Further, the "benefits of trademark registration, while valuable, are not monetary, and are "unlike a subsidy consisting of, for example, HIV/AIDS funding," as in the Court's 2013 decision in USAID v. Alliance for an Open Society.

The majority's opinion clearly rests on its conclusion that the disparagement provision of § 2(a) is viewpoint discrimination that cannot survive strict scrutiny.  But it also provides the fall-back rationale of commercial speech.

Even if we were to treat § 2(a) as a regulation of commercial speech, it would fail to survive. In Central Hudson, the Supreme Court laid out the intermediate- scrutiny framework for determining the constitutionality of restrictions on commercial speech.  First, commercial speech “must concern lawful activity and not be misleading.”  If this is the case, we ask whether “the asserted governmental interest is substantial,” id., and whether the regulation “directly and materially advanc[es]” the government’s asserted interest and is narrowly tailored to achieve that objective.

[citations omitted].  But the court's rationale circles back.  The court finds that 2(a) fails at the second step: the government interest cannot be substantial because it is based on viewpoint discrimination.  This is certainly predictable in light of IMS v. Sorrell (2011).  The court finds that the government's asserted interest in "fostering racial tolerance" cannot support a speech regulation. "The case law does not recognize a substantial interest in discriminatorily regulating private speech to try to reduce racial intolerance."  The cases relied upon are outside the commercial speech realm.

This tension between commercial speech and non-commercial speech permeates some of the opinions by Judges who did not join the majority.  Perhaps most persuasive is the dissenting opinion by Judge Jimmie Reyna, arguing that §2(a) survived commercial speech's intermediate scrutiny:

The marketplace of ideas differs dramatically from the marketplace of goods and services. While the marketplace of ideas may tolerate or even benefit from the volatility that accompanies disparaging and insulting speech, the marketplace of goods and services is a wholly different animal. Commerce does not benefit from political volatility, nor from insults, discrimination, or bigotry. Commerce is a communal institution regulated for the mutual economic benefit of all. Commercial speech that discredits or brings reproach upon groups of Americans, particularly based on their race, has a discriminatory impact that undermines commercial activity and the stability of the marketplace in much the same manner as discriminatory conduct.

As the court notes numerous times throughout its opinions, the disparagement provision has long been contentious, including the notorious "Dykes on Bikes" trademark dispute (which I wrote about here). 

But currently - - - and looming largely - - - the ongoing litigation currently before the Fourth Circuit regarding the PTO's cancellation of the trademark of a football team with the name many believe disparages Native Americans.

Moreover, given that a circuit court has declared a portion of a federal statute unconstitutional, this issue could well be going to the United States Supreme Court.

December 22, 2015 in First Amendment, Opinion Analysis, Race, Recent Cases, Speech | Permalink | Comments (0)

Sunday, November 29, 2015

Ruling Moves Soft-Money Ban One Step Closer to Doom

Judge Christopher Cooper (D.D.C.) ruled last week that a constitutional challenge to the federal restrictions on soft money by state and local political party committees will be heard by a three-judge district court. The ruling puts the case on the fast-track to the Supreme Court, whose plurality ruling last year in McCutcheon puts the federal soft-money restrictions on extremely shaky ground. The net result: this case, Republican Party of Louisiana v. FEC, will likely go to the Supreme Court; the Court will almost surely strike the soft-money restrictions; and the ruling will open yet another spigot for vast amounts of money to flow in politics.

The case involves BCRA's limits on soft money by state and local political parties. "Soft money" is a contribution to a political party for state and local elections and for "issue advertising," but not for influencing federal elections. (Money for federal elections is subject to other restrictions.) The 2002 Bipartisan Campaign Reform Act flatly prohibits national political parties from raising or spending soft money. But as to state and local party committees, BCRA permits them to use soft money for state and local elections and issue ads, but not for federal election activities. As a result, state and local political party committees use (1) a federal fund, consisting of contributions at and below federal (FECA) limits, for federal elections, and (2) nonfederal funds, consisting of soft-money contributions, for state and local elections and issue ads. (There is a third category, too: Levin funds. Levin funds are a type of nonfederal fund that can be used for some federal election activity. They don't appear to be a game-changer in this case, though.)

The plaintiffs in this case, state and local committees of the Republican Party in Louisiana, challenged BCRA's limits on soft-money. In particular, they challenged (1) BCRA's prohibition on the use of soft-money for federal election activity, (2) BCRA's requirement that state and local committees pay direct costs of fundraising activity for funds used for federal election activity, and (3) BCRA's monthly reporting requirement disbursements and receipts for federal election activity. (BCRA defines "federal election activity" as voter registration, voter identification and GOTV, in addition to campaign communications that refer to a clearly identified candidate for federal office.) The plaintiffs claim these restrictions violate the First Amendment.

The plaintiffs moved to convene a three-judge court to hear their claims. BCRA authorizes such a court to hear constitutional challenges to BCRA, and allows the loser to take the case directly to the Supreme Court. (Constitutional challenges to FECA, on the other hand, go first to an en banc court of appeals. The plaintiffs wanted to by-pass this step and fast-track the case to the Supreme Court, so, learning a lesson from earlier cases, they challenged BCRA's restrictions, not FECA's limits on contributions. Still, a successful challenge would effectively erase FECA's contribution limits.) In this way, the plaintiffs will get the case to the Supreme Court, and quickly.

And that matters, because the Supreme Court has signaled that it's ready to strike at least some soft-money restrictions. In McCutcheon, a plurality defined "corruption"--the only justification for contribution limits that will withstand constitutional scrutiny--quite narrowly, as "quid pro quo corruption or its appearance," or vote-buying. By that definition, the Court is almost sure to strike soft-money restrictions for things like voter registration, GOTV, and issue ads, and maybe others. (How do these things lead directly to quid pro quo corruption?) Even as the Court said in McCutcheon that it wasn't disturbing prior cases upholding restrictions on soft money, its cramped definition of corruption almost surely rules some or all of those restrictions out.

At least the uncertainty created by the Court's definition in McCutcheon caused Judge Cooper to conclude that the plaintiffs' constitutional challenge was "substantial"--a trigger for the three-judge court.

(One potentially complicating factor: The Court is now considering when a complaint is "substantial" so that it triggers a three-judge court, in Shapiro v. McManus. Judge Cooper wrote that if the Court's ruling in Shapiro alters his analysis of "substantial," the three-judge court could dissolve itself. That wouldn't end the case (necessarily), but it would require the plaintiffs to appeal through the D.C. Circuit.)

Judge Cooper's ruling did not address the merits (except to say that the challenge was "substantial"). Still, the ruling puts the case on the fast-track to the Supreme Court (subject to any potential speedbumps from Shapiro), where some or all of the soft-money restrictions on state and local political party committees will likely meet their doom.

November 29, 2015 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Thursday, October 29, 2015

En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival

The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment.  The en banc court also found that the government was liable and that there was no qualified immunity.

Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.

The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head

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Repin, Demontsration 1905, via

on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."  A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.

The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker. 

The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words.  The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual."  In the context of the facts here, these principles deserved further exploration.

After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine.  Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and  it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of  a"few verbal warnings and a single arrest.  The court advised:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim."  As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:

The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.

The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established.  On these issues, there were vigorous dissents.  And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:

In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.  . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.

Yet in the discussion of qualified immunity, the en banc court reasoned:

To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.

That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases.  (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).

On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers.   As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise.  The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.

October 29, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, First Amendment, Free Exercise Clause, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (0)

Thursday, October 1, 2015

Court Grants Certiorari in First Amendment Political Activity by Public Employee Case

The United States Supreme Court has granted certiorari in Heffernan v. Paterson in which the Third Circuit's opinion affirmed summary judgment for the City of Paterson against a First Amendment claim for retaliatory action against police officer Jeffrey Heffernan. 

At issue is whether the mistaken belief of a supervisor that an employee was engaging in political activity.  The police officer was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn."  Heffernan insisted that he was not involved in the campaign and actually did not support the same candidate as his mother.

The petition for certiorari argues that there is a split in the circuits on this issue.

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October 1, 2015 in First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, September 30, 2015

California Court Upholds Anti-Paparazzi Law Against First Amendment Challenge

California's so-called anti-paparazzi law has been upheld against a facial First Amendment challenge by a state appellate court in its opinion in Raef v. Superior Court of Los AngelesRecall that Paul Raef was charged under California Vehicle Code, section 40008, subdivision (a) which increases the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording, or other physical impression of another person for a commercial purpose for his  "alleged high-speed pursuit of pop star Justin Bieber and failure to stop when police attempted to pull him over."  The court concluded that the Vehicle Code provision is a law of general application that does not single out the press for special treatment, does not target speech, and is neither vague nor overbroad.

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Banksy, "Photo Rat" via

The court reasoned that Vehicle Code section 40008 is not limited to paparazzi chasing celebrities or reporters gathering news. Instead, the statute targets “any person” who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of “another person” for a commercial purpose.  The court distinguished both Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue (1983), finding a paper and ink tax unconstitutional,  and Simon & Schuster, Inc. v. Members of New York State Crime Victims Board (1991), holding NY's "Son of Sam" law unconstitutional. 

In considering the expressive activity of taking photographs, the court considered ACLU v. Alvarez in which the Seventh Circuit held unconstitutional a broad anti-eavesdropping statute prohibiting video recording of police officers.  But  the court reasoned that even assuming "that the intent to take a photograph or make a recording of another person generally is entitled to First Amendment protection as a speech-producing activity, we are not persuaded that section 40008 punishes that intent per se or that the commercial purpose requirement imposes a content-based restriction on speech."

Instead, the court relied on Wisconsin v. Mitchell (1993) - - - even as it recognized the differences in the enhanced penalties for a bias crime - - - to conclude that it is the conduct not the intent that is being punished:

the conduct which section 40008 targets is not garden-variety tailgating, reckless driving, or interference with the driver’s control of a vehicle. It involves “relentless” pursuits of targeted individuals on public streets, as well as corralling and deliberately colliding with their vehicles. Such goal-oriented conduct hounds the targeted individuals, causing them to react defensively and escalating the danger to the violators, the targeted individuals, and the public. Because the predicate statutes do not require that the traffic offenses be committed with a specific intent and for a particular purpose, it cannot be said that the conduct they punish is indistinguishable from that subject to section 40008.

The court also rejected the argument that the statute made a content-based distinction of "commercial purpose", based in last Term's opinion in Reed v. Town of Gilbert. Relatedly, the court found that Reed's language did not support any finding that the California statute was targeted at First Amendment activity.  "Since the legal sanction is triggered by the noncommunicative aspects of the violator’s conduct, any incidental effect on speech does not necessarily raise First Amendment concerns."  And finally, the court found that any incidental burden on speech survives intermediate scrutiny.

As to overbreadth and vagueness, the court reiterated the standard for a facial challenge and noted that

   To the extent that Raef and amici are concerned about “the possibility of overzealousness on the part of the arresting officer and not vagueness in the criminal statute,” their concerns “can be adequately dealt with in the course of prosecution of individual cases on their individual facts.” . . . . Hypothetical concerns over potential misuse of the statute to unfairly target the press do not justify invalidating it on its face.

Thus it seems Paul Raef may be raising the as-applied challenges to his prosecution under the statute.

September 30, 2015 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, September 28, 2015

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

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Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Thursday, September 17, 2015

Sixth Circuit Finds Standing in "Juggalo" Constitutional Challenge to Gang Designation

In its opinion in Parsons v. Department of Justice today, a panel of the Sixth Circuit reversed the district judge's dismissal of a complaint for lack of standing by individuals who identify as "Juggalos"  a group the FBI's National Gang Intelligence Center (NGIC) has identified as a "hybrid gang."  The individuals alleged that "they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang."

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                                                                                                                 image via

As the court explained, Juggalos are fans of Insane Clown Posse, a musical group, and its record label, Psychopathic Records, who often wear or display Insane Clown Posse tattoos or insignia, as well as paint their faces. The complaint alleged various actions by law enforcement, including detentions and inference with performances, as a result of the gang designation.

The court found that while their allegations of chilled expression were insufficient to rise to the requisite "injury in fact" required under standing doctrine,

The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.  As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action.

[citations omitted].  Thus, the court held that the injury in fact requirement was satisfied as to the First Amendment and due process claims.

As to causation, the court held that the Juggalos’ allegations "link" the gang report to their injuries "by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question."   Thus, at this initial stage of the case, the Juggalos’ allegations sufficed.

On the question of redressibility, the remedy sought included a finding that the gang report is invalid.  The court rejected the government's argument that such information about the Juggalos was available from other sources by stating that the test is not that the "harm be entirely redressed." "While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of" the government report.  The court seemingly found it pertinent that the DOJ's report gave the gang designation an impressive "imprimatur" of government authority.

As the Sixth Circuit made clear, the complaint remains subject to the motion to dismiss on other grounds, but this is an important victory for the Juggalo quest to remove its gang-identification.

September 17, 2015 in Due Process (Substantive), Fifth Amendment, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, September 16, 2015

Federal Judge Finds Arrest for Obscenity Violates First Amendment - - - and Denies Prosecutorial Immunity

In her decision from the bench in Barboza v. D'Agata, federal district judge Cathy Seibel has not only found that the arrest of William Barboza violated the First Amendment but has granted summary judgment against a state prosecutor for a First Amendment violation and allowed a claim against the village to proceed.

0b0d6031e6e41dfbaf5986c2c98f3915After Barboza received a speeding ticket from Liberty, New York, he not only paid the fine but returned the form with "Liberty" in "Liberty Town Court" crossed off and replaced with "tyranny" and with the phrase "fuck your shitty town bitches" written in all caps and underlined.  (photo here).  An assistant district attorney, Robert Zangala, made a decision that the statement constituted "aggravated harassment" under NY Penal Law 240.30 (1) (a). While New York courts had rejected facial challenges to the subsection,  New York's highest court had found the statute unconstitutional as applied in a 2003 case in which the defendant had "left five voice messages on the Village of Ossining Parking Violations Bureau's answering machine in which the defendant rained invective on two village employees, wished them and their family ill health, and complained of their job performance as well as the tickets that she had received."  Judge Seibel found that decision was "on all fours" with the present case.

Importantly, the prosecutor not only charged Barboza, but participated in the plan to arrest Barboza when he came to court about the speeding ticket; a judge having ordered Barboza to appear. While Judge Seibel found that the prosecutor was entitled to absolute immunity for the decision to charge Barboza, he was not entitled to absolute immunity for the decision to have him arrested.  Moreover, Judge Seibel found that the prosecutor was not entitled to qualified immunity.  However, she did find that the police officers who actually made the arrest were entitled to qualified immunity.

Regarding the reasonableness of their actions, Judge Seibel's discussion about the differences between the police officers executing the arrest and the prosecutor is illuminating.   She stated that the precedent "distinguishing police officers from lawyers, which helps the officers, hurts Zangala," the prosecutor.

If cops are not expected to know what a lawyer would learn or intuit from researching case law, an assistant district attorney certainly is. And  there surely is nothing unfair or impracticable about holding a trained lawyer to the standard of trained lawyer. While it is reasonable for a police officer to rely in certain circumstances on the legal advice of a prosecutor, the prosecutor himself must be held to the standard of a trained lawyer.

And given that the assistant district attorney was a "trained lawyer," she held that he is "not saved by his getting approval from the District Attorney in the way that the officers are saved by complying and getting approval from an assistant district attorney."  Indeed, the prosecutor's actions are not reasonable "given that he had the time to do the relatively simple legal research but did not."  Additionally, Judge Seibel intimates that the prosecutor may have known that the arrest suffered from First Amendment infirmities and simply chose to continue.

Finally, Judge Seibel decided that the claim against the village could proceed on the issues of whether there was a sufficient pattern of similar violations, the obviousness of the risk of a violation (under a single incident theory), and whether the village's failure to train caused the arrest.

She also directed the parties to discuss settlement.

September 16, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, September 11, 2015

Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

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Masonry circa 1425 via


After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

September 11, 2015 in Cases and Case Materials, Equal Protection, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Monday, September 7, 2015

Third Circuit Finds Teacher's Blog Comments About Students Not Protected By First Amendment Issue

In its opinion in Munroe v. Central Bucks School District, a divided panel of the Third Circuit found that a public school teacher's blog posts about students did not "rise to the level of constitutionally protected expression" under the First Amendment and thus they could be the basis of her termination.  Agreeing with the district judge, the majority thus concluded that the balancing test of  Pickering v. Board of Education (1968) was not satisfied.

The majority's opinion, authored by Judge Robert Cowen and joined by Judge Jane A. Restani of the United States Court of International Trade, sitting by designation, details the offending blog posts including one in which Munroe stated she was "blogging AT work," (capitalization in original), and offered alternative "canned" comments for student evaluations including:  "Sneaking, complaining, jerkoff"; "Whiny, simpering grade-grubber with an unrealistically high perception of own ability level"; and "Am concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)"  

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Schoolroom circa 1896 via

Later posts were equally unflattering about students and teaching.  And while the blog was originally subscribed to by a handful of people, some posts circulated and attracted the interest of the press.  Termination was contemplated, Munroe took a scheduled maternity leave, and also did her own interviews with the press. 

The majority's opinion "reluctantly" concludes that Munroe's speech implicated a matter of public concern, but then diminishes any public concern, and then reinstates it and states that: 

Given our assessment of the interests of Munroe and the public in her speech, Defendants were not required to make an especially vigorous showing of actual or potential disruption in this case. However, even if we were to assume arguendo that her speech “possesses the highest value,”  we would still conclude that Defendants met their burden. Simply put, “Plaintiff’s speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected.”

Interestingly, the majority also seems to hold teachers to a higher standard - - - despite the fact that Pickering itself involved a school teacher.  While recognizing that the parents objecting to Munroe's speech cannot constitutionally be a "heckler's veto" to protected speech, the court states:

However, there is a special (perhaps even unique) relationship that exists between a public school teacher (or other educators, like a guidance counselor), on the one hand, and his or her students and their parents, on the other hand. Simply put, neither parents nor students could be considered as outsiders seeking to “heckle” an educator into silence—“‘rather they are participants in public education, without whose cooperation public education as a practical matter cannot function.’”

 This notion could seriously erode teachers' First Amendment rights.   

 The dissent of Judge Thomas Ambro from the affirmance of summary judgment in favor of the defendant school district concludes:

In short, I have no doubt the School District was well aware that firing Munroe for her blog posts and media tour would land it in constitutional hot water. More than enough evidence suggests that firing her on performance grounds was a pretext for its real reason—she had spoken out to friends on a blog, it became public, School District officials were upset and proposed her termination, they decided to wait, the once- sterling evaluations of Munroe immediately became negative, and she was fired. The bottom line: too many signs suggest this was all a set-up that a jury needs to sort out.

A petition for en banc review is presumably forthcoming.

September 7, 2015 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 28, 2015

DC Circuit Finds No First Amendment Violation in Statute Limiting Expression at Supreme Court

In its substantial opinion in Hodge v. Talkin, a panel of the United States Court of Appeals for the DC Circuit upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza.  

40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

Hodge image
image of SCOTUS Building included in the opinion

Recall that almost two years ago, district judge Beryl Howell had found the statute unconstitutional in a well-reasoned and extensive opinion.  Judge Howell's ruling prompted the United States Supreme Court to swiftly respond by promulgating a new regulation that seemingly responded to at least some of the more problematical examples that Judge Howell identified such as preschoolers wearing a tee-shirt.  However, the DC Circuit's opinion reverses Judge Howell's decision without reliance on the limitations in the new policy.

Writing for a unanimous panel, Judge Sri Srinivasan notes that the United States Supreme Court's decision in United States v. Grace (1983) left the constitutional status of the plaza, when it decided that the sidewalks surrounding the perimeter of the Supreme Court building are public forums. However, Srinivasan relies on Grace for the distinction between the plaza and the sidewalks to conclude that the plaza is a nonpublic forum:

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” [Grace.; Id. at 183.].  The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

The opinion devotes attention to architectural description, which it admits in one case has "perhaps" a "degree of romanticism," and also likens the public forum characterization of the Supreme Court plaza to "the treatment of courthouses more generally" and to the controversial Lincoln Center plaza case; interestingly now-Justice Sotomayor was a judge on that panel.

As a nonpublic forum subject to the "lenient" First Amendment standard of reasonableness, the DC Circuit has little difficult in finding that the statute is "reasonable."  Interestingly, the United States Supreme Court's closely divided opinion last Term in Williams-Yulee v. The Florida Bar occupies a prominent role in this reasoning.  The opinion is discussed numerous times to support a conclusion that the government interests put forward here - - -  "the decorum and order befitting courthouses generally and the nation’s highest court in particular" and "the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure" - - - are both valid and being appropriately served.  Essentially, the DC Circuit's opinion embraces the "judiciary is special" sentiment and correctly notes that this prevailed in the strict scrutiny context of Williams-Yulee, so should suffice under the reasonableness standard.  

The DC Circuit's opinion similarly rejects the overbreadth and vagueness arguments that the statute is unconstitutional.

In essence, the DC Circuit finds the inclusion of the "grounds" in the statute as a place where assembly or "display" of opinion can be prohibited is appropriate line-drawing:

In the end, unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. But where? At the front doors themselves? At the edge of the portico? At the bottom of the stairs ascending from the plaza to the portico? Or perhaps somewhere in the middle of the plaza? Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza, where the “physical and symbolic pathway to [the] chamber begins.” [citation to architectural work]

While the odds are increasingly low that the United States Supreme Court will accept any case on certiorari, the odds seem to approach nil that the Court will exercise its discretion to review this opinion.

August 28, 2015 in First Amendment, Opinion Analysis, Speech, Standing, Supreme Court (US) | Permalink | Comments (0)

Sunday, August 23, 2015

D.C. District Applies Reporter's Privilege to Non-Confidential Information

Judge Amit Mehta (D.D.C.) on Friday granted a reporter's motion to quash a subpoena by a drug manufacturer for non-confidential information related to the reporter's article recounting a critical study on one of the manufacturer's cancer drugs. (This was a bit piece of a larger shareholder class-action against the manufacturer, Amgen.)

The ruling applied the reporter's privilege under the First Amendment to non-confidential information in a civil suit. That part of the ruling aligns with other circuits that have ruled on the issue, even though the D.C. Circuit has yet to rule on it.

Judge Mehta also concluded that Amgen did not sufficiently seek the information through other sources before it issued its subpoena to reporter Paul Goldberg.

August 23, 2015 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)