Tuesday, September 29, 2015

Daily Video: Chemerinsky & Volokh Discuss the First Amendment and the Roberts Court

Worth a watch:

A dialogue between ConLawProfs Erwin Chemerinsky & Eugene Volokh on the topic of  "THE FIRST AMENDMENT & THE ROBERTS COURT," moderated by Kelli Sager, and sponsored by The First Amendment Salon, spearheaded by ConLawProf Ron Collins and in association with the Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Chemerinsky and Volokh agree with each other more than might be anticipated.


The First Amendment and the Roberts Court


September 29, 2015 in First Amendment, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0)

Monday, September 28, 2015

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

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

Photo by Steve Rhodes via

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

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

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

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

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

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

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

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

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

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

Thursday, January 29, 2015

Salaita Files Federal Complaint Over University of Illinois Actions

Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials  to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.

Salaita has now filed a 39 page complaint in federal court.  The first count of the complaint alleges the First Amendment violation:

In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.

Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.

The second count alleges a procedural due process violation.  Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.

ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.

January 29, 2015 in Current Affairs, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Daily Read: Ron Collins' Tribute to First Amendment Lawyer Al Bendich

Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.

" Cadets at VMI reading HOWL" Gordon Ball, 1991  via

Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.

UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.

January 7, 2015 in Courts and Judging, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Daily Read: Will Supreme Court Hear NSA Challenge in 2015?

Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court. 

Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts.  And as he implies, regardless of the status of these particular cases, there are plenty more percolating:

Case name: N/A
Status: Ongoing

Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.

ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.


[image via]

January 2, 2015 in Criminal Procedure, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

Robson on Teaching the Religion Clauses

Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.

RobsonRobson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"

The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."

Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.

For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.

This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.

Check it out; give it a try; tell us how it works for you.

December 17, 2014 in Establishment Clause, Free Exercise Clause, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

First Amendment Exam Question on Ferguson Protest Prompts Controversy

Writing exam questions that engage with current controversies can themselves cause controversy.

Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical.  Reportedly, this was the question:

"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."

This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class).  The controversy sparks in part from the exam's role assignment to work for the prosecutor.  (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")

However, the question's task (at least as I'm reading it) is to objectively discuss the merits.  Would such a charge contravene the First Amendment?  The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests.  It also would call for an application of cases, depending on which cases were covered,  such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one. 


This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions.  Indeed, the report does suggest that the controversy is simply not this exam.  There seem to be other issues including the lack of diversity at the law school.  A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not.  The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam. 

Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.

[image via]

(h/t Leis Rodriguez)

December 11, 2014 in Current Affairs, First Amendment, Race, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 2, 2014

Daily Read: Gabriel Arkles Talking to (Con)LawProfs Talking to Trans* Students

Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.

ArklesPublished in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes.  In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change.  Here's one of special note for ConLawProfs:

Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.

This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.

Arkles' essay is a thought-provoking and must-read this semester.

September 2, 2014 in Gender, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

CALI for Constitutional Law: New Lesson on Same Sex Marriage, Windsor, and Perry

CALI has been updating its lessons this summer, including its Constitutional Law lessons.

There is an entirely new one "Marriage and Same-Sex Marriage in Constitutional Law" covering the basic constitutional issues and arguments in marriage with an emphasis on same-sex marriage litigation. It emphasizes understanding the Supreme Court's 2013 decisions in Hollingsworth v. Perry and United States v. Windsor, involving the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act (DOMA), respectively. The last section includes questions concerning the arguments in the issue of state bans on same-sex marriage that will be reaching the Court soon.



Other ConLaw Lessons of interest:


Contemporary Commerce Clause

The Early Commerce Clause

Eleventh Amendment

Marbury v. Madison

Ripeness and Mootness


State Action



August 18, 2014 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Academic Freedom in Saskatchewan

Can a tenured professor, serving as a dean (or executive director) of the university's school of public health be terminated for publicly criticizing the university's restructuring plans?

University of saskatchewan logoThis does not involve the new Kansas social media policy for academics, but the question that arose at the University of Saskatchewan this week;  there's a good overview and links to the letter itself in this article from the Globe & Mail.

For Americans the situation seems close to the famous letter to the editor protected by the First Amendment in  Pickering v. Board of Education.  But recall Mr. Pickering was merely a teacher while Professor Buckingham at University of Saskatchewan was a dean charged with implementing the very policies he was criticizing, a situation akin to the one the Sixth Circuit confronted in Dixon v. University of Toledowhen considering a university human resources officer who made public statements inconsistent with the university's anti-discrimination policy that she had to enforce.

In recognition of this distinction, it seems now Buckingham has only been relieved of his duties as an administrator and may return to campus, seemingly complete with tenure.

Canadian ConLawProf Michael Plaxton (at the University of Saskatchewan) has a nuanced discussion in the Globe and Mail today.


May 15, 2014 in Comparative Constitutionalism, First Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Academic Freedom in Kansas

Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.

An amended policy has finally been adopted.

It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment. 

LogoAdditionally, the new policy also attempts to digest the current state of First Amendment law:

3.  The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:

i.  is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;

ii.  when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;

iii.  discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or

iv.  subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.

In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.

While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues.  The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.  

Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined?  Or will the policy merely chill speech?


May 15, 2014 in Current Affairs, First Amendment, Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 


May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional

Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.

One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate."  But, the Third Circuit stated, that is not a "constitutional flaw."

"A Funeral" by Anna Archer via

The challenged statutory provisions included ones that:

(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.

The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.

In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:

The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names.  A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.

 [citation omitted]

ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case.  It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.

February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

The Supreme Court's Heavy First Amendment Docket this Term

Last Term, the United States Supreme Court's First Amendment docket was decidedly light.  This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.

Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here.  The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas).  The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.


 This Term, there is a bounty of First Amendment cases before the Court.

In alphabetical order, they include:

  • Conestoga Wood Specialties Corporation v. Sebelius &  Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act.  The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine.  Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.

  • Harris v. Quinn
    The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers.  Our extensive coverage of the issues is here.  Oral arguments were held January 21 and our analysis is here.

  • Lane v. Franks
    The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator.  Our discussion of the grant of certiorari January 17 is here
  • McCullen v. Coakley  
    This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.

  • McCutcheon v. Federal Election Commission
    This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees.  Oral arguments were held October 8, 2013 and our analysis is here.

  • Susan B Anthony List v. Driehaus 
    This case is a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.

  • Town of Greece v. Galloway  This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.  The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity."   The Solicitor General filed a brief supporting the town.  Oral arguments were held in early November and our analysis is here.

  • United States v. Apel  
    Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction.  At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.

  • Wood v. Moss
    Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue.  The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators.  Oral argument is scheduled for March 26, 2014.

ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term.  And First Amendment watchers, scholars, and practitioners may see some important changes.

January 23, 2014 in Association, First Amendment, Religion, Reproductive Rights, Speech, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 1, 2014

Happy New Year! Happy Grading!

Wishing everyone "grading zen."



[image via]

January 1, 2014 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, December 1, 2013

Sunday Dress: Protesting "Obamacare" Wearing a Guy Fawkes Mask

Fawkes maskWhile the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.

As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.  

For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood,  including Judge Rovner's hypotheticals.

More about the arrest and Florida statutory scheme is here. 

December 1, 2013 in Current Affairs, First Amendment, Religion, Speech, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 26, 2013

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

Supreme Court Justices by Donkey Hotey


In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby  essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees. 

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

RovnerFor those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.


Continue reading

November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, November 4, 2013

Daily Video: After Shelby County v. Holder

The Court's decision last Term on the constitutionality of the Voting Rights Act in Shelby County v. Holder is noteworthy for its impact (see our posts here and here).

Here's a terrific exploration in video form of the decision and its impact on Pasadena, Texas, by Kali Borkoski of SCOTUSBlog. 


This short clip would be an excellent in-class introduction to the issues - - - and could be updated depending on the outcome of the local election.


November 4, 2013 in Reconstruction Era Amendments, Supreme Court (US), Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

What the Best Law Teachers Do

Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding 9780674049147 volume, What the Best Law Teachers Do (Harvard).  As the title says, the book is a compilation of the best practices of the best teachers in our field.  It should be at the top of the reading list of any law professor.


RobsonWe're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book.  (Other con-law-familiar names include Julie Nice and Heather Gerkin.)  Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof.  Check it out.

September 30, 2013 in Books, News, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)