Monday, August 29, 2016
The University of Arkansas at Little Rock Law Review
call for papers for its 2017 Symposium:
“Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election,”
to be held on February 16th and 17th, 2017.
Deadline for submissions of article proposals is Oct. 7, 2016.
Elections leave open the possibility for the corrupting influence of dark money. “Dark money” controversy figured prominently in the last Arkansas judicial elections, so much so that the Arkansas Supreme Court and General Assembly have studied the issue of campaign financing, and the Arkansas Bar Association created the Task Force on Maintaining a Fair and Impartial Judiciary, which issued a report in June recommending appointment of judges and other reforms. Judicial appointment, however, is not without its critics, who contend among other arguments that appointment is undemocratic, and that appointed judges lack authority and legitimacy and are less accountable.
The broad goal of this symposium is to debate the strengths and weaknesses of judicial election systems versus judicial appointment systems, with an eye toward the best solution for Arkansas. Topics of interest include, for example, whether an appointment process would be appropriate for all appellate judges or only Supreme Court Justices; the most effective and bipartisan types of appointment processes; issues surrounding recusal from cases involving contributors; and reforms to protect the election process from the influence of “dark money.” We anticipate panels comprising a mix of academics, judges, and legislators, both Arkansans and out-of-state speakers and contributors.
More submission details at the law review website here.
Wednesday, August 24, 2016
Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections
In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.
The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar. In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive. The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.
In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:
- The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad. Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party. The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
- The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored. The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
- The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld. Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo. The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
- The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional. Again, the court stressed the quid pro quo nature of endorsements.
- The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser. The fundraiser, the court reasoned, brings the judge's impartiality into question.
- The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result. The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates. However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional. The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
- The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded. This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be. The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."
The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns. The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results. It does seem that the court will be visiting this terrain again.
Thursday, August 11, 2016
The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.
The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.
The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.
Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.
The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.
But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.
The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.
Monday, August 8, 2016
Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.
The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.
The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.
Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).
Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).
Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.
Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.
Thursday, July 14, 2016
Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).
But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce. The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries. Both Scalia and Kennedy dissented. Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC.
Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:
General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.
That... that is prohibited by this.
But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.
Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?
A few moments later, Kennedy follows:
Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.
Louis J. Caruso: Well, the thing of it is--
Anthony M. Kennedy: And it has to be answered in the terms of a compelling interest that is narrowly tailored.
Did Justice Kennedy actually call Donald Trump a "danger" in 1989?
h/t Navid Khazanei
July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)
Monday, July 11, 2016
In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert.
Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.
The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles. Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe. Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.
Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based. The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty. Moreover,
The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.
[ellipses added; citations omitted]. Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.
The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.
As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary. Additionally, the panel found that there were ample alternative channels for communication, including advertising.
Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”
The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied. However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.
This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.
If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).
Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was. Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.
Monday, June 20, 2016
On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.
Central to the First Amendment claim is the contention that the "event zone" is far too large and
apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.
Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time. ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."
The Cleveland regulations ban a host of dangerous items within the zone. This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC. However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls. There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.
Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government. Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance. While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.
Wednesday, June 8, 2016
Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.
While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech." This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement - - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”
But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007). Soon thereafter, the BOP had instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.
McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.
McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:
We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).
In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."
The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.
Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.
Thursday, June 2, 2016
The Ninth Circuit yesterday revived a student group's First Amendment retaliation complaint against the Arizona Board of Regents for pulling the plug on the group's funding in response to the group's public advocacy.
The ruling keeps this free speech case alive and sends it back to the district court.
The case arose when the Arizona Students' Association used its student-generated fees to push a ballot initiative that would increase funding for public education. In response, the state Board of Regents, which collected the fees and distributed them to the ASA, decided to withhold the fees that it already collected for the Spring 2013 semester and to make it harder for the ASA to collect future fees.
The ASA sued, but the district court dismissed the case. The court said that the Board enjoyed immunity under the Eleventh Amendment and, in any event, the complaint failed to state a claim.
The Ninth Circuit reversed. The court ruled that the ASA could (and did) state a Young claim for injunctive relief, but that the group failed to name individual Board members, as required under Young. The court said that the lower court should have granted ASA's motion to amend its complaint in order to name individuals and to comply with Young.
As to the merits, the appeals court ruled that ASA stated a plausible First Amendment retaliation claim. The court rejected the arguments that the Board had no obligation to pay for ASA's speech in the first place and that the fees were not a valuable government benefit:
ABOR had no affirmative obligation to collect or remit the ASA fee, but having done so for fifteen years at no cost, ABOR could not deprive the ASA of the benefit of its fee collection and remittance services in retaliation for the ASA's exercise of its First Amendment rights. ABOR's fee collection falls within the range of government benefits we have previously recognized as sufficiently valuable to give rise to a retaliation claim. Indeed, the ASA alleged that its student fees were allocated to its efforts to exercise core political speech. As we have previously held in other First Amendment retaliation cases, and as we now hold in this case, the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment.
Tuesday, May 10, 2016
The D.C. Circuit ruled in Jankovic v. International Crisis Group that a supporter of former Serbian Prime Minister Zoran Djindjic failed to make out a defamation case against the International Crisis Group for critical statements in an ICG report.
The ruling means that plaintiff Milan Jankovic's case against the ICG is dismissed. (Jankovic is also known as Philip Zepter.)
Zepter, a prominent Serbian businessman, sued the ICG for defamation after the organization published a report that said that Zepter was a member of the "New Serbian Oligarchy" and that he was "associated with the Milosevic regime and benefited from it directly." The ICG report also said that individuals like Zepter continued to be in positions of power and to enjoy access to public resources, and that few of the "crony companies" had been subject to legal action, despite promises by post-Milosevic reformers. The district court concluded that a reasonable reader could construe the statements as saying that Zepter was a crony of Milosevic and supported the regime in exchange for favorable treatment.
As an initial matter, the D.C. Circuit applied its three-part rule and concluded that Zepter was a limited-purpose public figure. The court said that (1) the controversy was public, (2) Zepter played a significant role in it, and (3) the defamatory statement was germane to Zepter's participation. As to (2), the court said that "[t]he evidence . . . shows that [Zepter] was an outspoken supporter, financial backer, and advisor of Prime Minister Djindjic [who] paid over $100,000 to a lobbyist to support [Djindjic's] effort to improve relations between the United States and Serbia." "The evidence shows that Zepter had voluntarily thrust himself into ensuring that Serbia underwent reforms in the post-Milosevic era."
If there seems to be a disconnect between Zepter's role as a Djindjic supporter and a Milosevic crony, here's what the court said: "Yet even if Zepter was an important figure in the Serbian reform effort mainly due to his relationship with Prime Minister Djindjic, his relationship to Milosevic is relevant to Zepter's role in the controversy. Linking Zepter to Milosevic would be relevant to understanding Zepter's role and why he wanted to be involved in the reform effort led by Prime Minister Djindjic."
The court went on to say that Zepter failed to show evidence of actual malice. "What is still missing is evidence that ICG had 'serious doubts' about the truth of the defamatory statement or that it published the statement with a high degree of awareness of its probable falsity, such that ICG acted with reckless disregard for the statement's truth."
The ruling ends Zepter's case against the ICG.
Tuesday, May 3, 2016
Congressional Research Service Reports are almost always a terrific resource and this new one - - - Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court by Andrew Nolan, Kate M. Manuel, and Brandon J. Murrill - - - is no exception. At almost 80 pages, with numerous footnotes, as well as two tables and an appendix, it is a wealth of information and analysis.
For example, here's an excerpt regarding Garland's views on campaign finance and the First Amendment:
While serving on the D.C. Circuit, Judge Garland has ruled in a number of major free speech cases. In particular, because the D.C. Circuit has exclusive jurisdiction over certain election law appeals,454 the bulk of these matters have involved free speech issues arising in the context of campaign finance regulations and rules governing political parties.455 Perhaps most significantly, Judge Garland wrote the opinion for a unanimous en banc court in Wagner v. FEC,456 upholding the prohibition on campaign contributions by certain federal government contractors457 against a challenge under the First Amendment and the Equal Protection clause of the Fifth Amendment.. . . Perhaps revealing aspects of Judge Garland’s views on the constitutionality of campaign finance regulation more broadly, the opinion deferred to Congress’s judgment on how best to serve the government’s interests. . . . . In contrast, judicial deference to congressional determinations has arguably not been as evident in the Supreme Court’s more recent campaign finance jurisprudence.463 At the same time, because of the unanimity of the Wagner decision and the decision’s relatively narrow scope, it may be difficult to draw any firm conclusions regarding Judge Garland’s views on judicial deference toward congressional determinations respecting campaign restrictions from the Wagner decision, in and of itself.
Nonetheless, in another context, Judge Garland generally took a favorable view of the regulation of federal lobbyists. Specifically, in National Association of Manufacturers (NAM) v. Taylor,464 he authored a unanimous opinion rejecting a First Amendment challenge to a federal lobbying disclosure law. The court found no evidence of harassment connected to lobbying disclosures465 that might justify more skepticism with regard to the disclosure requirements, and, in a display of deference to Congress arguably like that in Wagner, ultimately concluded that there was “no reason why Congress cannot enact a scheme that plausibly yields a significant portion of the information it seeks.”466
On the other hand, during Judge Garland’s tenure on the D.C. Circuit, the appellate court issued a well-known campaign finance ruling that resulted in the establishment of super PACs, political committees that spend independently of any candidate or party and are permitted to receive unlimited contributions.467 In SpeechNow.org v. FEC,468 Judge Garland joined, but did not author, a unanimous en banc opinion holding that limits on contributions to groups that make only independent expenditures are unconstitutional.469
[footnote text omitted].
Other sections relating to the constitution include the Religion Clauses, Second Amendment, Separation of Powers, Federalism, Substantive Due Process, and Criminal Law and Procedure.
While the Report cautions "that, at least as a historical matter, attempting to predict how particular Supreme Court nominees may approach their work on the High Court based on their previous experience is a task fraught with uncertainty," since Garland's nomination there has been reference to his opinions on the DC Circuit.
This CRS Report provides a wealth of information should Garland's nomination be subject to Senate hearings.
Wednesday, April 27, 2016
The D.C. Circuit ruled today in Holmes v. FEC that a lower court erred in not certifying a challenge to federal base contribution limits to the en banc D.C. Circuit.
The ruling means that the full D.C. Circuit will take up the question whether federal base contribution limits violate the First Amendment.
The case arose when the plaintiffs challenged the federal base contribution limit of $2,600 "per election" as violating free speech. They wanted to contribute $5,200 to a congressional candidate in the general election, but the "per election" limit prohibited this. (They could have contributed $2,600 in the primary, then another $2,600 in the general, but they didn't want to contribute in the primary.) They argued that language in the plurality opinion in McCutcheon supported their claim: "Congress's selection of a $5,200 base limit [the combined limit for a primary and general election, according to the plaintiffs] indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption."
The district court declined to certify the question to the D.C. Circuit, because the plaintiffs' argument contradicted "settled law," that is, Supreme Court precedent.
The D.C. Circuit reversed. The court said,
We therefore do not think a district court may decline to certify a constitutional question simply because the plaintiff is arguing against Supreme Court precedent so long as the plaintiff mounts a non-frivolous argument in favor of overturning that precedent. That the plaintiff will be fighting a losing battle in the lower courts does not necessarily make the question "obviously frivolous," or "wholly insubstantial," or "obviously without merit." The plaintiff has to raise the question to ensure that it is preserved for Supreme Court review. And certifying the question fulfills Section 30110's evident purpose of accelerating potential Supreme Court review.
At the same time, the court declined to order certification for a related Fifth Amendment claim against base limits. The court said that this claim was based on regulations, not the Act, and therefore not subject to certification.
Tuesday, April 26, 2016
Supreme Court Decides First Amendment Protects "Mistaken" Perception of Political Activity by Public Employee
In its relatively brief opinion in Heffernan v. City of Paterson, NJ, the Court decides that the First Amendment is applicable when a government employer takes an adverse employment action against an employee for perceived (but not actual) political activity. 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.
The majority opinion, authored by Justice Breyer, began by noting that the First Amendment "generally prohibits"government officials from "dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity" and posing the question of whether "the official’s factual mistake makes a critical legal difference."
In determining that the factual mistake is not a critical legal difference, Breyer's 8 page opinion for the Court concludes that it is the "government's reason" that "counts." Supporting this conclusion is the language of the First Amendment itself:
Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.”
(This point was made by Justice Ginsburg in oral argument). Additionally, the conclusion focusing on the government's rationale supports the underlying rationale of the rule:
The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities . . . . The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.
Finally, Breyer's opinion for the Court noted that the recognition of mistaken employer beliefs will not open the floodgates (or as the Court phrases it "impose significant costs on the employer"), because "the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities."
In remanding the case, the Court did recognize that Heffernan may have been dismissed under a "different and neutral policy," but did not express its views on that issue.
Dissenting, Justice Thomas joined by Justice Alito - - - in an opinion as long as the one for the Court - - - stressed that Heffernan did not have a constitutional right that had been violated: "The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured."
In oral argument, Justice Alito had described the issue as being "like a law school hypothetical." The Court, however, has decisively answered the question in favor of construing the First Amendment to prohibit government "wrongs" rather than requiring the actual exercise of individual "rights."
Monday, April 18, 2016
In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.
The rule provides:
During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.
In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys.
During the trial, one of the defendant attorneys "suffered from a self-inflicted gunshot wound." The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets." Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.
The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available." The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.
While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.
Friday, March 11, 2016
The Eighth Circuit ruled today that the ACLU lacked standing to bring a case against the director of the Missouri Department of Corrections to stop him from enforcing the state's ban on revealing the identities of execution team members. The ruling is a set-back for the ACLU and its efforts to disclose information about the state's executions, and, in particular, who provides the drugs. (Publicizing the providers has been an effective strategy by anti-death-penalty advocates to get those providers to stop providing.)
The case arose when the ACLU realized that it may have posted information about Missouri's executions (obtained under the Missouri Sunshine Law) that included "the identity of a current or former member of an execution team" in violation of a state law that prohibits revealing this information. The organization only realized the potential violation after it saw how the Department defined the members of the team--to include "anyone selected by the department director who provides direct support for the administration of lethal chemical, including individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals for use in the lethal injection procedure." So the organization removed the material from its web-site and moved quickly to sue the director for declaratory and injunctive relief, arguing that the law violated free speech, free press, and due process.
The director moved to dismiss, claiming that he was immune under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.
The Eighth Circuit today sided with the director on immunity and standing (and didn't say anything on the merits). The court ruled that the director was immune, because under the law he has no role in enforcing the prohibition, even if he has authority to define the members of the execution team. But the court said that defining the members wasn't an enforcement action within the meaning of Ex Parte Young.
The court also ruled that the ACLU lacked standing. That's (again) because the director has no authority to enforce the prohibition. (Instead, the law provides for a civil cause of action by any execution team member against anyone who reveals his or her identity.) The court said that this means that the director's action (defining the execution team) didn't cause the ACLU's injury, and an injunction against the director wouldn't redress it.
But the court did recognize that the ACLU suffered an injury--an objectively reasonable fear of legal action that chills its speech. Because this fear derives from the possibility of a team member's suit, the organization could probably could sue a team member who appears in its materials for the same relief. Or it could post the material, wait to be sued, and then raise the constitutional defenses.
Wednesday, March 2, 2016
The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.
The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.
The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.
At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.
In her extensive opinion in Wandering Dago, Inc. v. Desito, United States District Judge for the Northern District of New York Judge Mae D'Agostino granted summary judgment for the government against the First Amendment and Equal Protection claims of "Wandering Dago" resulting from the denial of a permit to operate a food truck at the Empire State Plaza in Albany (pictured below), a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito.
In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" - - - known as The Egg - - - and various monuments and memorials in New York's capital city. As the list of applicants was being processed, the name "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.
The First Amendment claims were primary; the Equal Protection Clause claims having been previously dismissed and warranting little more analysis when re-plead. On the First Amendment, Judge D'Agostino identified the problem common to so much free speech litigation: this case does not fit neatly into any particular First Amendment "framework." Thus, Judge D'Agostino engaged in several strands of analysis, most prominently being "forum" analysis, but also government speech, employee (contractor) speech, and commercial speech.
As to forum doctrine, Judge D'Agostino rehearses the well-know different types of forum, ultimately deciding that the forum is a "nonpublic forum." Key to this conclusion, as is so often true, is the definition of the forum. For Judge D'Agostino, the forum is not Empire State Plaza, but the lunch program - - - "which happens to take place within the grounds that comprise the Empire State Plaza." That OGS required permits and controlled the "forum" contributes to this view.
Yet even under a nonpublic forum, the government must be "reasonable" and content/viewpoint neutral. As to the reasonableness, Judge D'Agostino discounted the fact that the policy was not written or even previously articulated. Somewhat confusingly, the judge decided that the owners of Dago did not intend to express anything particular by the name, and therefore there could be no viewpoint/content discrimination and similarly found that there was no problem with unbridled discretion. The judge rejected the applicability of In Re Simon Shiao Tam, in which 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 because it did not involve a forum, but an application of strict scrutiny. Judge D'Agostino also distinguished cases in which the proprietor was denied the entire opportunity to sell the goods rather than simply not allowed to participate in a particular program.
The particular program aspect supports the judge's conclusion that "government speech" was at issue, relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech.
While Judge D'Agostino's opinion is well-structured and comprehensive, the analysis regarding content/viewpoint discrimination, no matter the forum type, will most likely be fertile ground for appeal. On government speech, the case may provide the Second Circuit with an opportunity to clarify the limits of Walker.
Thursday, February 25, 2016
Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama? Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement.
In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants. In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend. Judge Rogers's decision included several grounds.
First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.
Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing. Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists. However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity." She thus dismissed the complaint for lack of standing.
Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity. Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.
Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails. However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."
Fifth and finally, was the First Amendment claim. The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360. Judge Rogers framed the issue thusly:
(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,
(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?
The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.
Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.
Thus, it seems we will never be have an opportunity to read the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge. Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion, any appeal would have much to overcome in order to be successful.
Tuesday, February 23, 2016
In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government."
For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive. It is not within the First Amendment unless the observers are "members of the press."
Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff." Even if valid, this distinction is problematical. It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party. However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.
Judge Kearney thus granted the motion for summary judgment on the First Amendment claims. The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci). Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.
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.
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."