Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Thursday, September 19, 2013
The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity. The court reverses in part the grant of summary judgment to the sheriff by the district judge.
As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here, and "the established jurisprudence governing the discharge of public employees, because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980).
An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech." The district court had concluded that “merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection,” but the Fourth Circuit panel disagreed. Its discussion of Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs
did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically warned his employees not to support [his rival] Adams through Facebook." Roberts also seemingly specifically "threatened that Adams supporters would not be reappointed."
Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question. Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.
Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.
The majority concludes that, at the relevant time, “a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons,” and, on this basis, it determines that Sheriff Roberts is protected by qualified immunity with respect to his discharge of [the three plaintiffs]. In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation.
This case will most likely be cited and known for its finding of "like" on Facebook as speech. But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.
Tuesday, September 17, 2013
Mary Beth Tinker - - - of Tinker v. Des Moines Independent Community School District (1969) - - - is going "on tour" to promote "to promote youth voices, free speech and a free press" and the First Amendment. On the Tinker Tour blog, Mary Beth Tinker writes, "I made a difference with just a simple, black armband. Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available? We look forward to encouraging her — and sharing real-life stories about how students are keeping the First Amendment alive today." (italics and bold in original).
The iconic photo of Mary Beth Tinker shows her and her brother holding the black armbands they wore to school that were at issue in Tinker:
For a recent controversy involving students' First Amendment rights to wear expressive items to school, see our recent post regarding the en banc Third Circuit's decision on students' First Amendment rights to wear breast cancer awareness bracelets to school.
Thursday, September 12, 2013
Michigan, like most states, has a vanity license plate program under which residents can apply for a "personalized" letter or number combination rather than being randomly assigned one, upon the payment of an additional fee. Under M.C.L. § 257.803b(1), the secretary of state "shall not issue a letter combination that might carry a connotation offensive to good taste and decency."
In the complaint filed in Matwyuk v. Johnson, the plaintiff, represented by the ACLU of Michigan, alleges that the secretary of state's office denied his application for "INFIDEL" (or some variation) because it was "offensive to good taste and decency." The plaintiff claims the "offensive to good taste and decency" provision on its face and as applied violates the First Amendment as overbroad and the Due Process Clause of the Fourteenth Amendment as vague.
Matwyuk's factual allegations are especially compelling:
Mr. Matwyuk is a retired U.S. Army sergeant who was deployed as an American soldier in Iraq during the height of hostilities in that country. He and his fellow troops were constantly under attack by insurgent extremists whose word for the American soldiers was “infidel.” Seeking to reclaim or reappropriate this term as a source of American pride and patriotism, Sergeant Matwyuk and other soldiers came to embrace their identity as “infidels.” He and other American veterans proudly refer to themselves as “infidels” as a reminder of the bond they share as survivors of a bloody war in a hostile part of the world.
To honor the sacrifices of his fellow soldiers and to express his pride and patriotism as a veteran of the war in Iraq, Sergeant Matwyuk wishes to obtain a personalized Michigan license plate that reads “INFIDEL" . . . .
Unlike other license plate cases involving compelled speech in the usual license plate design or speciality license plate design schemes, here the issue is the very letters and numbers that individualize the identification of the license plate. Nevertheless, some of the same doctrines will be at issue, including the license plate being a "forum" that the government has opened for speech. Additionally, doctrines regarding interpretations of "decency" - - - as opposed to the established meanings of obscenity - - - will also be at issue. These doctrines tend to support the plaintiff's case.
Wednesday, September 11, 2013
Judge Ketanji Brown Jackson (D.D.C.) today denied the American Meat Institute's motion for a preliminary injunction against new meat labeling rules of the Agriculatural Marketing Service. The AMI argued in American Meat Institute v. USDA that the new country-of-origin, or COOL, rules violated the First Amendment, the Agriculture Marketing Act, and the Administrative Procedures Act. When the AMI sought a preliminary injunction, Judge Jackson ruled that it failed to demonstrate a likelihood of success on any of the claims.
The AMS's COOL rule, final and published in May 2013, requires meat labels that designate the country where the animal was born, raised, and slaughtered, in three categories: Category A, "Born, raised, and slaughtered in the United States"; Category B, "Born in Country X, raised and slaughtered in the United States"; Category C, "Born and raised in Country X, slaughtered in the United States"; and Category D, "Product of Country X." In so designating, the 2013 rule does not allow "commingling of muscle cut covered commodities of different origins"--that is, it doesn't allow meat from different countries to be commingled in the same labeled package. (The 2009 rule did allow commingling, but the AMS changed it in 2013 in order to comply with a WTO ruling and to "let consumers benefit from mor especific labels.")
The AMI alleged that the 2013 COOL rule violated free speech, but Judge Jackson disagreed. The court wrote that Zauderer rationality rule applied (and not the Central Hudson intemediate scrutiny test), because the COOL rule is a disclosure requirement that deals with only "purely factual and uncontroversial" disclosures about where the animal was born, raised, and slaughtered, and because the 2013 rule targeted "deceptive speech" insofar as the earlier rule would have caused confusion about the origin of commingled meat.
The court held that Zauderer's rationality was easily met here: "there is clearly a reasonable relationship between the government's interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other."
The ruling comes on the heels of two cases from the D.C. Circuit addressing when Zauderer or Central Hudson applies. In one, R.J. Reynolds Tobacco Co. v. FDA, the D.C. Circuit held that Central Hudson applied to FDA regs requiring certain textual warnings and graphic pictures on cigarette packages, because the pictures weren't designed to correct consumer confusion or otherwise correct deceptive speech. But in the other, Spirit Airlines v. USDOT, the D.C. Circuit held that Zauderer applied to a DOT rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites. The court said that DOT's regs required factual information and was directed at possibly misleading commercial speech.
Saturday, September 7, 2013
In its opinion in Demers v. Austin, a panel of the Ninth Circuit this week explicitly ruled that First Amendment claims concerning "teaching and writing on academic matters by teachers employed by the state" are not governed by the Court's decision in Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Garcetti has made First Amendment claims arising from a course of employment exceedingly difficult to sustain, a situation the Court seems disinclined to revisit.
The Ninth Circuit held that rather than being subject to an analysis under Garcetti, "teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968)."
Under Pickering, the employee's speech must be a matter of "public concern." Professor Demers' speech, for which he alleged he was retaliated against, consisted (at least in part) of a two page pamphlet, "The 7-Step Plan for Making the Edward R. Murrow School of Communication Financially Independent."
Named for the famous journalist (pictured above), the school as part of the Washington State University system, was in flux; Demers distributed the plan while he was a on the Murrow School’s “Structure Committee,” which was actively debating the issues. The Ninth Circuit stated:
protected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring. Depending on its scope and character, such writing may well address matters of public concern under Pickering.
Because Demers' pamphlet "made broad proposals to change the direction and focus of the School," rather than voicing "personal complaints," and because Demers' widely disseminated the document (including sending it to newspapers [as in Pickering] and posting it on his website), the panel found it was a matter of public concern.
Nevertheless, Demers was entitled to scant relief because the Ninth Circuit panel also held that the Defendants were entitled to qualified immunity: the Defendants certainly reasonably could have believed that their conduct was lawful “in light of clearly established law and the information [that they] possessed.” Indeed, because the panel acknowledged it was breaking new ground, it could not have held otherwise. But the panel did note that qualified immunity did not preclude injunctive relief.
This is an important opinion recognizing academic freedom under the First Amendment. At a relatively brief 26 pages, it is nevertheless closely reasoned both doctrinally and in its application.
And its sure to be at issue should the disciplining of the professor for a political "rant" we discussed earlier this week be litigated.
Thursday, September 5, 2013
As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.
Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity. For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award.
Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos, Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection. Indeed, the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."
However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it opined that such a concept is limited to universities and does not extend to high schools. As a university professor, Penn may have a better chance at making an academic freedom argument.
This could make a terrific in class exercise for ConLawProfs teaching First Amendment.
UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti. This would substantially improve Penn's position if adopted by the Sixth Circuit.
UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation).
Sunday, September 1, 2013
Texas Penal Code 21.15 seeks to do just that, providing:
A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person’s consent; and (B) with intent to arouse or gratify the sexual desire of any person.
While Texas courts had previously upheld the statute, the Texas Fourth Circuit Court of Appeals, sitting in San Antonio, ruled on a pretrial writ of habeas corpus that the statute was unconstitutional in its opinion in Ex Parte Thompson.
In its relatively brief discussion, the unanimous three judge panel held that "the statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment, but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is 'wholly inconsistent with the philosophy of the First Amendment.'" [citations omitted].
The court, however, rejected the argument that the statute was a content restriction, instead finding that it was "imposing time, place, and manner restrictions that are unrelated to content," and thus merited "intermediate scrutiny" under United States v. O’Brien. While O'Brien - - - the draft card burning case - - - is generally thought to be applicable to expressive conduct, the panel here uses O'Brien's factors to ultimately conclude that the statute is facially overbroad "reaching a substantial amount of constitutionally protected conduct," and relying in part on the Supreme Court's 2010 opinion in United States v. Stevens, declaring the federal "crush porn" statute unconstitutional.The opinion's analysis and use of precedent might trouble some First Amendment scholars and it will be interesting to watch whether the case reaches the Texas Court of Criminal Appeals [thanks to commentator for clarifying Texas court system].
Thursday, August 29, 2013
Ninth Circuit Upholds California Ban on Reparative (Sexual Orientatation Conversion)Therapy Against First Amendment Challenge
A panel of the Ninth Circuit today upheld the validity of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.
In its 36 page opinion in the consolidated cases of Pickup v. Brown and Welch v. Brown, the court reversed the senior district judge's opinion in Welch v. Brown enjoining the statute, and affirmed the opinion of a different district judge in Pickup v. Brown that had found the statute constitutional, and dissolved its own injunction pending appeal issued last December.
Judge Susan Graber, writing for the unanimous panel also consisting of Chief Judge Alex Kozinski and Judge Morgan Christen, Judge Graber summarized the holding thusly:
SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.
(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself;
(2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and
(3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.
(emphasis in original). The panel concluded that there is a continuum between speech and conduct, and that SB 1172 landed toward conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The court quickly dispatched the remaining arguments including that SB 1172 violated the right of "expressive association" as between counselors and clients, that SB 1172 was void for vagueness, that SB 1172 was overbroad, and that SB1172 violated the parents' fundamental due process rights over their children.
This is an important and well-reasoned decision likely to be persuasive to other courts, including the federal district judge deciding the constitutional challenge to New Jersey's similar statute.
Wednesday, August 14, 2013
In its opinion today in Speet v. Schuette, the Sixth Circuit, affirming the district court, held that Michigan's so-called "anti-begging" statute is unconstitutional. The Michigan statute, Mich. Comp. Laws § 750.167(1)(h), defines a "disorderly person," as a "person found begging in a public place."
The court notes that "Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects." The court rejected this contention and stated that "begging, by its very definition, encapsulates the solicitation for alms." And while the court agreed that the United States Supreme has never squarely ruled that an individual soliciting for alms is engaged in expression,in an interesting twist of the usual analogizing, the Sixth Circuit noted that the Court "has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations." The court engages in extensive discussion of precedent as well as cases in other circuits including the Fourth Circuit in Clatterback which we discussed here. The Sixth Circuit found that there was indeed protected expression in "begging" sufficient to invoke the First Amendment.
It then turned to the question of whether the statute was "overbroad." Although it recognized that "overbreadth" was "strong medicine," it determined it was warranted:
Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty- three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”
It further determined that it could not "read the statute to limit its constitutional effect," : instead, the "statute simply bans an entire category of activity that the First Amendment protects." While Michigan could regulate "begging," it may not simply prohibit it by its criminal laws.
Although relatively brief at 17 pages, this is a well-reasoned opinion in conformance with the weight of authority and First Amendment doctrine.
Tuesday, August 6, 2013
The Sixth Circuit ruled last week in McGlone v. Cheek that the University of Tennessee's speech policy was unconstitutionally vague and violated the First Amendment.
The case arose when the University denied permission to McGlone, a self-described "committed Christian," to share his religious beliefs with students in an open-air amphitheater on campus. Campus authorities told him that he needed a University sponsor. In particular, they told him that University policy required speakers not affiliated with the University receive sponsorship from "students, faculty, or staff." But they also told him that he needed to be "sponsored by a registered student organization, staff, or faculty." McGlone couldn't get a sponsor, so he didn't speak. But he sued.
The Sixth Circuit seized on the different articulations of the policy--one requiring sponsorship from "students, faculty, or staff," and the other requiring sponsorship from "a registered student organization, staff, or faculty"--to rule that the policy was unconstitutionally vague. The court said that a person of ordinary intelligence wouldn't know the University policy's meaning, that University officials had applied it differently, and that it left open the possibility of arbitrary and discriminatory enforcement.
The court remanded the case to the district court with instructions to grant a preliminary injunction against the University.
Monday, August 5, 2013
The students' bracelets proclaimed "I ♥ boobies (KEEP A BREAST)." The Easton Area School District banned the bracelets as not suitable for school. In an en banc opinion today in B.H. v. Easton Area School District, the Third Circuit upheld the First Amendment rights of the students, affirming the district judge's injunction against the school.
The bracelets were clearly speech and the school's attempt to ban the expression brought the Supreme Court's student speech cases into play: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988) and Morse v. Frederick (2007).
The school district relied most heavily on Fraser, defending the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech allowable under Fraser. However, in the en banc opinion joined by 9 judges, the Third Circuit held that although under Fraser, "a school may categorically restrict plainly lewd, vulgar, or profane speech that offends for the same reasons obscenity offends," Fraser "does not permit a school to categorically restrict ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning and could plausibly interpret as commenting on a social or political issue." (emphasis added).
The Third Circuit noted that the Tinker disruption standard remained as a "backstop" to the school's argument, but held that here it was not effective. Tinker, the court asserted "meant what it said: ―a specific and significant fear of disruption, not just some remote apprehension of disturbance," and in the case of the Easton School District's ban on the bracelets the "record of disruption is even skimpier" than it was in the case of the Des Moines school district's ban on the black armbands at issue in Tinker.
For the 5 dissenting judges,there was some doctrinal disagreement over the controlling rationale of Morse (the "Bong Hits 4 Jesus" case), but the central issue was the applicability of Fraser. For the dissenters, the balance tips toward deference to the school and the fact that the phrase "I ♥ boobies! not only expresses support for those afflicted with breast cancer, but also conveys a sexual attraction to the female breast," allows the school to ban the bracelets. This is true even if "certain facts indicate that a sexual interpretation of the ―I ♥ boobies bracelets may be at the outer edge of how a reasonable observer would interpret speech."
In a very short separate dissenting opinion, but signed by all 5 dissenters, Judge Greenaway, Jr. makes the point that the majority opinion provides little guidance to school districts. Thus, the "I ♥ boobies" Third Circuit opinion joins the "My Space" off campus school speech Third Circuit en banc opinion in 2011, which provided just a little guidance. Yet perhaps the guidance is this: school officials seeking to restrict student speech do so at their own peril.
More on "Dressing Constitutionally" blog here
Tuesday, July 30, 2013
NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions. His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006. Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” On remand, the case was reassigned to a different judge, discovery ensued, but Matthews was again unsuccessful.
Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.
While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen. Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti. But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne, a rare post-Garcetti case finding for the employee. The judge distinguishes Jackler on specific facts:
Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.
Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding whether Matthews' complaints were made "pursuant to his official duties." It is definitely a careful and considered opinion, yet it is sure to be appealed. With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.
Monday, July 22, 2013
In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information. As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,
Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.
While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective. The majority opinion was unequivocal:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes. It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear. Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need." The majority stated that just as in Branzburg, Risen has
“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
That the crime is the leak itself does not seem to be noteworthy. The majority likewise rejected the notion that there was any common law privilege.
For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:
Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.
For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg. Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test." He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters." Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."
While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution. The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .
Friday, July 19, 2013
First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos
While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.
The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti.
[image of Trayvon Martin by Shepard Fairey via]
Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland. After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records. Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.
The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper. Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.
[Rolling Stone Cover via]Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending. Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.
Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.
Wednesday, July 17, 2013
The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved. The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.
We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.
Monday, July 15, 2013
Amy Feldman over at Constitution Daily writes that flashing headlights enjoy some First Amendment protection. In particular, Feldman says that courts in Florida, Utah, and Tennessee have all ruled that flashing headlights are protected speech, and that a headlight flasher can't be prosecuted for obstructing justice for flashing headlights to alert oncoming traffic of a speed trap.
Still, Feldman says that headlight flashers' civil claims against the police for money damages for violating their First Amendment rights have been far less successful.
Monday, July 8, 2013
A Fourth Circuit panel issued its opinion in Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia holding that Lexington's "flag pole" ordinance limiting flags to that of the nation, state, and city was constitutional under the First Amendment. The Sons of Confederate Veterans argued on appeal that the City was motivated in enacting the ordinance by its desire to bar the Confederate flag from its flagpoles. For the court, even if that were true, it was of no constitutional moment. The flag poles had been a "designated public forum," but the
Ordinance has the effect of closing a designated public forum — the perpetual availability of which was never guaranteed — to all private speakers. The City was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate.
The court quickly added, however, that
the Ordinance specifies that it does not “prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” Lexington City Code § 420-205(C) (2011). As a result, all private groups and individuals remain free to express their flag-bound messages in other ways.
The limitation of the flag poles - - - or flag standards - - - may or may not be operative in a reported plan by a Louisiana legislator to ban the rainbow flag (aka LGBT pride flag) from government property. The prompting incident was reportedly a rainbow flag that was "hoisted" on a government flag pole to less than universal acclaim.
If the Louisiana legislators need some advice about drafting a constitutional ordinance, they might have a look at Sons of Confederate Veterans. A ban on all nongovernmental flags, including the rainbow flag, on government property? Violative of the First Amendment. A ban on all nongovernmental flags on Government-owned flag poles? Likely to survive a First Amendment challenge. And - - - just to be clear - - - a ban on rainbow flags while allowing Confederate flags? Not constitutional.
And a government ban specifically on the "rainbow Confederate flag" ???
Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge. HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization." The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.
Planned Parenthood v. Rounds. Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota. One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.
Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message." In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing. The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site. Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine. And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago). UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.
A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.