Civil Rights Law & Policy Blog

"Is It Unconstitutional to Prohibit Faith-Based Schools from Becoming Charter Schools?"

Professor Stephen Sugarman argues that it is in this recent paper now available at SSRN. Here's the abstract:

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

U.K. criminalizes revenge porn

WSJ's Lisa Fleisher reports...

"Church and State in the Founding-Era State Constitutions"

The title of this post comes from this recent legal history paper by Professor Vincent Phillip Munoz, the abstract of which states:

An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.

"Aligning Campaign Finance Law"

The title of this post comes from this recent paper by Professor Nicholas Stephanopoulos, the abstract of which states:

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found.

This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people.

It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

"Professional Speech"

The title of this post comes from this compelling paper by Professor Claudia Haupt, the abstract of which states:

Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

"Religious Exemptions and the Limited Relevance of Corporate Identity"

The title of this post comes from this recent paper by Professors Ira Lupu and Robert Tuttle, the abstract of which states:

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case.

After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you.

"The Two Trends that Matter for Party Politics"

The title of this post comes from this intriguing essay by Professors Joseph Fishkin and Heather Gerken, the abstract of which states:

 

In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

Note: This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

"The Supreme Court Decision in the Hobby Lobby Case: Conscience, Complicity, and Contraception"

The title of this post comes from this recent paper by Professor R. Alta Charo, the abstract of which states:

This publication examines the broad implications the United States Supreme Court's holding in Burwell vs. Hobby Lobby et al. could have on medical care. The Court in Hobby Lobby held the company could sue for an exemption from the contraceptive mandate of the Affordable Care Act on grounds that it was a substantial burden on the company's exercise of religious freedom. The reasoning in Hobby Lobby could extend beyond insurance and parallels to debates over "conscience-based" refusals to prescribe or dispense contraceptives. There is concern that companies may use this same logic to discriminate in the name of religion against same-sex spouses with regard to benefit packages; employers may object to state-mandated coverage of in vitro fertilization; and physicians may be able to withhold information from a patient under a religion based moral objection. Evidence shows the most effective methods of contraception that will lead to fewer unintended pregnancies, and thus, fewer abortions is access to the most effective methods of contraception. Hobby Lobby may well be driving its female employees to less effective methods of contraception, leading to more unintended pregnancies and pregnancy terminations. By its own logic, Hobby Lobby may now become complicit in those additional abortions.

"Compelled Commercial Speech"

The title of this post comes from this recent paper by Professor Robert Post, the abstract of which states:

This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings. 

Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary. 

The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI. 

Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.

"Warning: Contraceptive Drugs May Cause Political Headaches"

The title of this post comes from this paper by Professor R. Alta Charo, the abstract of which states:

The Obama Administration's contraceptive mandate implicates issues of complicity that run through many aspects of civil society, whether it is the police officer told to protect an abortion clinic or the tax exemption granted even to misogynist, homophobic, anti-semitic and racist religious groups such as the Westboro Baptist Church. How should the contraceptive mandate be framed, as a public health measure or as a turf dispute over the public space?

"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"

The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:

The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school. 

In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest. 

Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from. 

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.

'Revenge Porn,' State Law, and Free Speech

The title of this post comes from this recent paper from Paul J. Jenkins arguing that criminal liability can be imposed for revenge porn so as not to violate the First Amendment.

For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.

"Free Speech and Guilty Minds"

The title of this post comes from this recent paper by Professor Leslie Kendrick, the abstract of which states:

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...

...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.

Arizona asks federal judge to dismiss ACLU claim that state's revenge porn law violates First Amendment

The Arizona Capitol Times's Howard Fischer reports:

Assistant Attorney General David Weinzweig is arguing there is no legal basis for the lawsuit. He said the state is looking at a series of defenses, including that no one has been charged with breaking the law or is even being threatened.

 

Weinzweig also told U.S. District Court Judge Susan Bolton there are other legal problems with the claim filed last month by the American Civil Liberties Union on behalf of bookstores. That includes his contention that the lawsuit is about a purely political issue and seeks to involve the courts “in areas of government reserved to the legislative and executive branches.”

 

But ACLU attorney Lee Rowland said it’s not necessary for a bookstore owner, photographer, librarian or newspaper publisher to get arrested to challenge the law. And she brushed aside Weinzweig’s contention that the question is strictly political and beyond the reach of the courts.

 

“This is a First Amendment case,” Rowland said. “This is fundamentally about constitutional rights and whether or not our plaintiffs’ rights are being violated by this broad law. That is emphatically a question for the courts.” 

 

[...]

 

The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.

 

Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.

Did Houston mayor violate First Amendment rights of city pastors?

The Washington Times reports on the outcry from conservative religious leaders over Houston mayor Annise Parker's issuance of subpoenas for the communications of five Houston pastors. The subpoenas come as part of litigation stemming from the disqualification of roughly 70 percent of the signatures on petitions to repeal the city ordinance requiring local businesses to permit transgender persons to use the bathrooms of the gender with which they identify. Mayor Parker claims that the subpoenas are necessary for the discovery of documents pertinent to the controversy, while opponents argue that the subpoenas themselves violate the pastors' First Amendment rights.

Parker already has amended the subpoenas so that the pastors will not be required to turn over copies of their sermons.

Do anti-trolling laws threaten free speech?

RT asked Centre for Investigative Journalism director, Gavin Macfadyen, about recent efforts in the UK and elsewhere to make trolling a crime -- although what's considered "trolling" perhaps isn't so clear.

"This man carries a loaded gun around your children every day..."

...reads the lawnsign Kimberly Edson placed in her yard to inform her neighbors that an area man legally carries a concealed handgun. The sign contains a picture of Matthew Halleck, who Edson says walks by her house everyday when taking his daughters to school. Edson explained:

Since we don't have a way to stop him, we felt it was important to notify the neighborhood and the parents that there is an armed man in their presence...The first couple days of school he had it very visible, we saw it and were quite concerned.

 

I have a responsibility to help create the kind of community I want to see, and I don't want to see a community where there are guns around schools...

 

He has a Second Amendment right to carry the gun, I have my 1st Amendment right to say that I don't like it...

Halleck is considering suing Edson for libel.  

SCOTUS's First Amendment NIMBYism

Yesterday, The NYTimes's Adam Liptak reviewed SCOTUS's supreme hypocrisy on the First Amendment. Liptak observes that SCOTUS has upheld the right of lunatics to protest military funerals and the rights of anti-abortion protesters to approach abortion clinics. Yet, SCOTUS's own stoop is too close for the First Amendment to mean anything. Liptak writes:

[T]he Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.

 

That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Speech activities are relegated to the sidewalk around the court -- where ostensibly messages are less influential. 

Fortunately, as Liptak reports, SCOTUS soon may have an opportunity to reconsider whether to allow speech in front of the court. The D.C. appeals court recently heard arguments in a case arising after Capitol police ordered a man to remove his "U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People" button. The government is appealing a lower court decision striking down the speech-restricted zone as “irreconcilable with the First Amendment.” As Liptak notes:

Such a statement [as that on the man's button] , on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.

 

The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.

 

But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. 

The government argues that extending First Amendment rights to the plaza might affect cases before the Court.  

“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.

That is, the government argues that SCOTUS justices are not so firm of principle as to be free from the overwhelming power of loud voices and poster boards. By moving protesters down the stairs from the plaza to the sidewalk around the court, protesters can protest while the Court's high but unprincipled minds can quietly contemplate the most important legal questions of our day. Yes, it's pathetic. 

The New Yorker profiles professor hoping to create super PAC to end all super PACs

In 'Embrace the Irony,' The New Yorker's Evan Osnos relates Professor Lawrence Lessig's energetic effort to reform post-Citizen United campaign finance through MaydayPAC, a superPAC that funds candidates who support overhauling -- or destroying -- the status quo. This fascinating read begins:

Last spring, Lawrence Lessig, a fifty-three-year-old Harvard legal theorist who opposes the influence of money in politics, launched a counterintuitive experiment: the MaydayPAC, a political-action committee that would spend millions of dollars in an attempt to elect congressional candidates who are intent on passing campaign-finance reform—and to defeat those who are not. It was a super PAC designed to drive its own species into extinction. Lessig adopted the motto “Embrace the irony.”

 

Others had tried pouring money into politics in order to end the pouring of money into politics, but never on the scale that Lessig wanted. In 2012, Jonathan Soros, a son of George Soros, the billionaire and liberal donor, raised and spent $2.7 million to help nine candidates committed to campaign-finance reform. Lessig and his co-founder, the Republican consultant Mark McKinnon, planned to spend more than four times that amount in the six months leading up to midterm elections, on November 4th. If their efforts succeeded, they aimed to raise hundreds of millions of dollars on as many as eighty races in the 2016 election. Lessig believed that the campaign-finance system needed the political equivalent of an “atomic bomb,” he told me. Change would become impossible, he said, “unless we blow it up now and we find some way to make it so that these bones don’t set.”

NSA won't release info already given to media

The NSA rejected a FOIA request for information about authorized leaks to the media. As Wired's Kim Zetter writes:

[O]nce those leaks are made to the media and published, why shouldn’t the public also be able to know when the information came from an authorized source or an unauthorized one?

 

Steve Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, noted in his letter to the NSA appealing its response (.pdf) that “It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA.”

 

[Aftergood] says that even though the statute refers to information that the leaker expects will be made public, the NSA might not want the public to know which information was part of an authorized leak because some might have been provided off the record.

 

“I think it’s more likely that these disclosures were part of a negotiation with news organizations,” he told WIRED. In that case, “the disclosures in question were not actually published, rather they were part of a dialogue with a reporter perhaps in an effort to dissuade her or him from publication.”

 

The very notion of an authorized disclosure of classified information is, of course, a bit of an oxymoron, Aftergood notes in a blog post about the issue. “If something is classified, how can its disclosure be authorized (without declassification)?,” he writes. “And if something is disclosed by an official who is authorized to do so, how can it still be classified?” 

City council meeting cancelled because of attendee's 'F*ck The Police' hat

The man who wore the hat went by the name of "Bijan," and he was politely asked to remove it. But the eponymous villain wouldn't, of course.

 

The mayor's disgust was apparently so complete that he ordered everyone out of the council chambers. But citizens of Santa Ana would not leave him even in his desparate state. According to one local report:  

About 20 people defiantly remained, ready to be arrested if need be. In turn, about 30 police officers swarmed into the chambers, zip-tie handcuffs at the ready. The two sides had a stand-off for more than an hour; ultimately no arrests were made and everyone, including Bijan, left without incident after Pulido officially canceled the meeting. No word yet on when it will be re-held.

 

The city council was set to take up a discussion on decorum this evening stemming from tensions over a meeting last month. Back then, service awards for SanTana officers James Berwanger and John Rodriguez were given. That's what motivated CopWatch Santa Ana to hold protest signs in the audience reading "Berwanger is a bad cop" and "25 years of Terror."

 

Santa Ana Police Officers Association President John Franks complained to City Manager David Cavazos that the CopWatch folks took it too far that night, an opinion that Juarez doesn't disagree with--but with cause.

 

"The police not only have been harassing the community at large but also focusing their attention on certain members of CopWatch Santa Ana," he claims. Juarez says Rodriguez tossed him and another activist in the city jail for a night on loitering and impeding the free flow of traffic charges he claimed are trumped up in retaliation for their on-scene monitoring of Rodriguez last Wednesday. "We were ready to give public comment which is our freedom of speech right."

I guess it's unsurprising that people with the immediate power to restrict speech seem to value it less than those whose speech can readily be restricted - I guess that's the nature of things. But this seems pretty thin-skinned. Worse, it's unconstitutional. The mayor clearly discriminated against the expression of views - namely, F*ucking the Police - based on their content, in clear violation of the First Amendment's protection of speech. If another attendee had worn a hat reading 'Make Love to Police' to the meeting, the response certainly would've been quite different.

(h/t LAist)

Anti-Islam group claims NYC's rejection of bus signs violates its civil rights

The American Freedom Defense Initiative sued NYC's MTA because it determined that the group's "Hamas Killing Jews" ad couldn't be placed on the city's buses. "When our clients run ads exposing this Jew hatred, all of a sudden the transit authorities are worried about the 'tone' of the conversation or conjure up some threat of violence," said the group's attorney.

"How Serious Is the Supreme Court About Religious Freedom?"

Yesterday in The Atlantic Professor Dawinder Sidhu examined Holt v. Hobbs, a First Amendment religious freedom case scheduled for oral argument before SCOTUS early next week. Principally, Sidhu questions whether SCOTUS will extend the same broad protection for religious belief it employed earlier this year in Burwell v. Hobby Lobby to the claims of a less sympathetic group – federal prisoners. He sets it up this way:

Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be “courting anarchy.” In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.

 

But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minorities—not just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.

 

Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.

Woman claims her removal from town council meeting violated her First Amendment speech rights.

Jennifer Jones publishes a newspaper, has run for state office, and just loves dogs. For fun, she likes to sue officials of the town in which she lives - Quartsite, Arizona. She's a troublemaker, but her latest legal foray might actually have some merit. As The Courthouse News Service reports:

Known for its huge outdoor swap meets and gem shows, and as a haven for "snowbirds" in motor homes, the Sonoran desert town of about 3,500 residents entices some 2 million visitors every winter, when the summer's triple-digit temperatures dip down to the 70s.

 

The crowds were long gone at a town council meeting in June 2011 when Jones received a nod from Mayor Ed Foster to speak during the public-comment portion. About a minute into her criticism of the board, then-councilman Joe Winslow interrupted and made an oral motion to have her ejected for an "unidentified procedural violation." Claiming that a majority of council members supported the motion, Winslow told Jones to leave or be escorted out by police.

 

Jones said then-Police Chief Jeffrey Gilbert and police officers Fabiola Garcia and Rick Paterson moved toward her, grabbed the microphone out of her hand and forcibly ejected her from the meeting. She was then arrested for disorderly conduct but the charges were later dropped.

 

Jones sued Quartzsite, Winslow, Gilbert, Garcia, Paterson and others in 2012, but U.S. District Judge James Teilborg ruled found Wednesday that only her First Amendment claim will go forward.

 

"Even if defendants acted solely to cure plaintiff's unidentified procedural violation, defendants' actions may have run afoul of applicable law because plaintiff alleges that she was speaking peacefully about a matter of town-importance after being duly recognized to speak by the moderator of the meeting," Teilborg wrote.

"Making a Home for the Homeless in Hate Crime Legislation"

The title of this post comes from this intriguing paper by Professor Mohamed al-Hakim, the abstract of which states:

Several jurisdictions in the United States (e.g., Florida and Washington) have recently incorporated the status of “homeless” under the protection of hate crime legislation. This was largely promoted by new data and reports by the National Coalition for the Homeless urging added protection for the homeless. The issue of whether the homeless belong under hate crime provisions raises the following question: What criteria must a group meet to be eligible for its inclusion? What similarities do the homeless have with other protected groups? Finally, what implications does the recognition of economic status have on other economic groups, particularity the top wealthy 1%? In this article, I explore some of the issues raised by including the homeless as a protected group. I survey several rationales offered for the selection of protected characteristics. I argue that the rationales currently offered suffer from descriptive inadequacy by either being under- or over-inclusive. I turn instead to the political conception of “disadvantage” for an identity marker that better explains the link between the various protected groups and identities under hate crime legislation. Moreover, the use of disadvantage allows for the inclusion of the homeless without the need for incorporating other socio-economic identities.

"An International Legal Framework for Surveillance"

The title of this post comes from this recent paper by Professor Ashley Deeks, the abstract of which states:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

"Protesting and Policing Boundaries: the Role of Protest in Changing Ethnic Boundaries During the Civil Rights Movement"

The title of this post comes from this recent paper, the abstract of which states:

How are ethnic boundaries altered in the wake of challenges to ethnic hierarchy? While ethnic boundaries may evolve in the longterm, I argue that in moments of rupture boundaries can change quickly. Mass incarceration and police stop-and-frisk policies evidence the fact that the security apparatus of the state can institutionalize racial and ethnic boundaries through the threat of and use of violence. In this paper, I examine how the 1966 Campaign by the Chicago Freedom Movement by Martin Luther King, Jr. and the Southern Christian Leadership Conference altered the police behavior towards, and thus the racial boundary of, the black community in American cities. I use unique data, collected in 1966, on the details of nearly 20000 police-citizen interactions in Chicago, Boston, and DC. In the midst of this data collection, the SCLC began housing demonstrations in Chicago. I exploit this coincidence to test whether the protests led the policing of black communities and the application of state power at the racial boundary, to intensify or abate. By showing how the police responded to protest against the racial status quo, this paper furthers understanding of the intersection of race and criminal law. More generally, this paper employs a strong research design and unique data on ethnic practices at the micro-level to show that the content of ethnic boundaries change quickly during social upheaval.

"Why More Americans Should See the Beheading Videos"

The American public must see images of violence from military engagements and terrorist attacks in which lives - even American lives - are lost, writes The Intercept's Peter Maass. Because images of dead Americans have been kept from the public, we have not yet had to fully deal with the "depravity of war." According to Maass: 

This censorship has spawned an odd blowback. By shielding us from disturbing imagery, our government (and editors who shy away from gore) may have made us all the more vulnerable when we finally see dead Americans. This is not an abstract theory. The two disastrous invasions of Falluja during the Iraq War were sparked by pictures of the bodies of four American contractors hanging from one of the town’s bridges in 2004. It wasn’t the event itself so much as the pictures that launched such destructive fury. Confronted with these stark but complicated images, we tend to respond with a primal scream, as The New York Post did with its identical headlines for both the Falluja desecrations in 2004 and the Islamic State beheadings a decade later: “Savages.”

 

In the case of the Islamic State, some of the outrage is explained by the perverse pride the killers take in distributing the evidence of their crimes. But we are on a slippery slope with this indignation, because we have our own macabre mechanism for broadcasting the deaths of our supposed enemies — Central Command recently began tweeting out links to videos of air strikes in Iraq. As human rights groups have amply documented, a large number of civilians have been killed by American drones. Many Americans look at those videos and think, Got the bad guys, job well done. How many Iraqis, Afghans, Pakistanis or Yemenis look at those same videos, remind themselves of the women and children killed, and say, What savages?

 

In the end, it is a strange twist: Instead of pushing us away from war, as the Vietnam generals feared, images of American casualties are now driving us into the vortex. Would seeing more of it really help? Instead of reasoned discussion, might there be more howls for revenge? Or might there be shrugs of seen-it-before indifference, as Susan Sontag warned in her 2002 New Yorker essay, “Looking at War?” I wish we didn’t have to ask these questions — that there were no loathsome images to flash on our screens — and I wish we didn’t have a responsibility to look and think deeply. But we do, if the depravity of war is to be understood and, hopefully, dealt with.

"The Evolution of First Amendment Protection for Compelled Commercial Speech"

The title of this post comes from this essay by Professor G. Edward White, the abstract of which states:

This essay in an exercise in responding to the question “how did we get here” with respect to a contest contemporary issue in First Amendment jurisprudence. As late as the early 1970s no one would have thought that compelling speakers in the marketplace to propose a commercial transaction would have raised any First Amendment issues, because no one considered commercial speech to merit any protection under the First Amendment. In the New Deal period regulation of economic markets became relatively common, and was challenged on a number of constitutional grounds, the challenges typically invoking commerce power, federalism, or delegation arguments. No one suggested that efforts on the part of states to affect the content of advertisements for commercial products raised free speech concerns. Moreover, advertising itself was regarded as a suspect activity, inclined to create false or misleading expectations among consumers, and was thought eminently suitable for regulation. 

Thus in order to imagine cases such as United States v. United Foods, where in 2001 a majority of the Court struck down, on First Amendment grounds, a federal program assessing handlers of fresh mushrooms with fees to promote generic mushroom sales, one has to reckon with a sea change in attitudes toward speech, commercial speech, and commercial advertising between the early 1940s and the present. This essay, emphasizing developments in First Amendment cases and commentary, as well as changing cultural attitudes, attempts to trace that sea change.

"Hobby Lobby and the Dubious Enterprise of Religious Exemptions"

The title of this post comes from this upcoming paper by Professor Ira Lupu, the abstract of which states:

The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption -- federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend to be rhetorically strong and experientially weak, with an occasional outburst of religion-protecting vigor. Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to infinite, result-oriented manipulability. Part IV concludes with a prediction that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemptions. Ultimately, it will wither on a malnourished vine.

"Free Speech and Guilty Minds"

The title of this post comes from this recent paper by Professor Leslie Kendrick, the abstract of which states:

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

More than 1/3 of Americans believe First Amendment grants too much freedom

The First Amendment Center brings us this and other sad findings regarding Americans' (mis)understanding of First Amendment protections. 

(h/t Josh Blackman)

Police order woman to remove 'Unmarked police car' bumper sticker

Professor Jonathan Turley lays out the basics of this disappointing story:

The two cars pulled over Konchinsky and one officer ordered her to stay in her vehicle. An officer then asked if the minivan was her vehicle and demanded her license and registration.” He then reportedly stated “With that bumper sticker, someone could think you’re impersonating a police officer.’” He then allegedly added that she could even be shot by someone who didn’t like police officers. They ordered her to pile off the bumper sticker if she wanted to go. She was late for work and later contacted the ACLU. She is the mother of one adult and one school-age child.

Read Prof. Turley's full post here.

'The Supreme Court Was Right to Allow Anti-Abortion Protests'

The LATimes may not have liked SCOTUS's decision in McCullen v. Coakley, but renowned constitutional scholar Laurence Tribe finds the decision "unquestionably" correct. In his NYTimes op-ed, he writes:

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

He later adds:

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

 

Justice Antonin Scalia, the most forceful of the conservatives, correctly criticized this sleight-of-hand in his concurrence with Chief Justice Roberts, arguing convincingly, as did Justice Samuel A. Alito Jr., that the law at issue was anything but neutral toward the content of the speech at issue but represented a form of censorship. Justice Scalia and the justices joining him, Anthony M. Kennedy and Clarence Thomas, worried that a spurious unanimity by the court would encourage other jurisdictions to attempt, and get away with, similar sorts of discrimination favoring some kinds of speech over others.

 

This is not to say that other rights can never outweigh free speech. In 1992, the court upheld a buffer zone limiting political speech around a polling place. Thursday’s opinion sensibly distinguished between voting booths and abortion clinics, focusing on the difficulty of detecting low-visibility voter intimidation as compared with the “anything but subtle” harassment of women seeking abortions.

 

It focused as well on the deliberate exclusion of police officers near polling places in order to avoid the reality or appearance of official pressure on voters, an issue absent with abortion clinics, where the police are free to protect women from being pressured by others. The state has many alternative measures available to protect patient safety and autonomy, and the court’s decision rightly insists that the state must exhaust those alternatives before resorting to a blanket restriction of free speech.

 

Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.

LATimes editorial laments SCOTUS decision to strike down buffer zones around abortion clinics

Yesterday, SCOTUS announced its decision in McCullen v. Coakley striking down Massachusetts' law banning anti-abortion protesters from coming within 35 feet of abortion clinics as violative of the First Amendment. The LATimes Editorial Board isn't pleased. It writes:

The 1994 shootings may have been the impetus for Massachusetts to write its first law on the subject, but the Guttmacher Institute, a research organization that supports the right to abortion, notes that clinics across the country continue to report bombings, vandalism, blockades, arson and violent protests. Just because some opponents of abortion are peaceful doesn't mean women don't need protection from others.

 

You'll hear no argument from us about how vital the right to free speech is. But that does not mean that all other rights must yield to it at all times.

Few protections exist for the victims of online harassment

One needs to spend little time online to experience the wrath of easily and oft-slighted morons. Say something about anything on a message board and you're bound to draw the attention of someone looking for space and a target for their frustrations. Such tirades are usually humorous in their simplicity, but occasionally their authors cross the line. However, as The Atlantic's Noah Berlatsky reports, a notable study by the Center on Law and Information Policy at Fordham Law School finds that victims of online harassment find little relief from the law. Berlatsky writes:

[The study's authors] point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, [Alice] Marwick and [Ross] Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.

 

Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.

 

So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do? 

 

Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)

 

Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."

 

Marwick added that Lori Stewart's threat to reveal Robin King's identity didn't end his harassment. Stewart had to actually get a restraining order, and press charges. 

 

Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.

 

Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.

'When it comes to politics, there's no need to outlaw lying'

The Los Angeles Times's editorial board today summarily dismisses the constitutionality of laws criminalizing false statements about political candidates. It claims that such laws chill speech otherwise protected by the First Amendment, writing:

In more than a dozen states it can be a criminal offense to make a false statement about a candidate for public office. But such laws are unnecessary, and open to abuse. On Monday, the Supreme Court handed down a unanimous decision that could be the first step in doing away with them.

 

The justices ruled in favor of the Susan B. Anthony List, an antiabortion group that wants to challenge an Ohio law making it a crime to utter a false statement "concerning the voting record of a candidate or public official." The issue before the court was whether the group had suffered a sufficient injury to have standing to sue.

 

During the 2010 election campaign, the Susan B. Anthony List planned to post an ad on billboards accusing then-Rep. Steven Driehaus (D-Ohio) of voting "for taxpayer-funded abortion" when he supported the Affordable Care Act. After plans for the ad were reported in the news, Driehaus filed a complaint with the Ohio Elections Commission, a panel of which determined that there was "probable cause" that the ad was false.

 

The ad never went up because the owner of the billboard space feared legal reprisals. Driehaus withdrew his complaint after losing the election and before final commission action or referral to prosecutors. But the Susan B. Anthony List persisted in challenging the constitutionality of the law. A federal appeals court ruled that the suit couldn't proceed because the issues were now moot and the plaintiffs no longer faced an "imminent threat" of prosecution.

 

The Supreme Court's decision to overturn that ruling is welcome because citizens who believe their freedom of speech is being chilled by an unconstitutional law shouldn't have to wait until they are prosecuted to challenge the law. Furthermore, the decision increases the likelihood that the court will eventually rule on whether laws like Ohio's violate the 1st Amendment.

 

We think they do. No one condones lying about (or by) politicians. But the price of criminalizing false statements in political campaigns is that candidates and citizens alike may be deterred from engaging in the "uninhibited, robust and wide-open" debate that the court has said is protected by the Constitution. And often it will be a matter of debate whether a characterization of a candidate's record is false or merely misleading.

 

In 2012, the justices struck down a federal law making it a crime for a person to falsely claim to have received military honors. Justice Anthony M. Kennedy wrote: "The remedy for speech that is false is speech that is true." That observation is especially applicable to the cut-and-thrust of a political campaign. The veracity of statements about a candidate's record is best policed by his opponents and by fact-checkers in the media, not by prosecutors.

'The public’s right to know'

The Boston Globe lauds the First Circuit's recent decision confirming the right of citizens to videotape police officers as falling under the protection of the First Amendment in this editorial, writing:

Given the rash of canceled commencement speeches, it has been a tough season for free speech advocates. So a recent federal appeals court ruling that reaffirmed a First Amendment right to record a police traffic stop is reason to cheer.

 

The case goes back to the night of March 24, 2010, when Carla Gericke of Lebanon, N.H., was following an acquaintance in another car. A Weare police officer drove up behind them with lights flashing. When the officer started questioning the other driver, Gericke pointed a video camera at him. She was subsequently charged with violating New Hampshire’s wiretapping law, among other offenses.

 

Gericke was not prosecuted, but she sued the Town of Weare, its police department, and the arresting officers. She argued that police retaliated against her for exercising her First Amendment rights. The officers said they were entitled to immunity because there was no clearly established right to record the traffic stop.

 

The Court of Appeals for the First Circuit agreed with Gericke, relying on a prior First Circuit case upholding a plaintiff’s right to film police officers who were arresting a man on the Boston Common. In the earlier case, the court ruled that gathering information about government officials “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ” With Gericke, the court said, the key question is whether a traffic stop puts the attempted filming “outside the constitutionally protected right to film police” — and concluded, “It does not.”

 

The ruling gave Gericke the right to pursue a civil rights action against the police, but, according to her attorney, Seth Hipple, the case was settled. The larger message, however, goes on, and it is encouraging: While police may not like to be filmed or recorded, they can’t use their law-enforcement powers to try to stop it.

(h/t ABA Journal)

First Amendment right to post mugshots online?

The First Amendment is the subject of considerable dispute, particularly as it relates to freedom of speech. The Founders left very little guidance as to what qualifies as speech, and thus SCOTUS and academics have been left to debate the merits of certain conduct as speech under the First Amendment on mostly theoretical grounds. Technological advances have drastically changed methods of communication, which, in turn, have made these inquiries even more difficult.

The Internet of course has increasingly drawn the attention of First Amendment scholars. The constitutionality of laws criminalizing revenge porn, for example, appears increasingly as the subject of debate. Many believe that these laws can be written narrowly enough so as to avoid infringing on otherwise valid First Amendment activity, while others feel that the very existence of such laws inevitably chills speech. 

Similarly, the propriety of posting mugshots online is being questioned, which some websites claim is protected First Amendment speech. The websites that publish the mugshots usually don't differentiate between persons convicted of crimes and those whose charges were later dropped. As Fox News's Dan Gallo reports:

At least seven states...recently pass[ed] laws to restrict websites from profiting off mugshots: Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming. Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional and violate his client's First Amendment rights.

 

"Unpopular speech, unpopular actions are generally protected under the First Amendment, provided they're not illegal in other ways," Epstein said. "It's uncomfortable, perhaps. But it doesn't rise anywhere near the level of extortion. We threaten nobody."

 

Consumer attorney Brian Kabatek is suing one of the websites, which he accuses of legalized extortion.

 

"They're putting it out there not for some great public purpose," he said. "They're putting it out there for economic gain. And that's the only reason they're doing this."

Justice Stevens says "money is not speech."

The AP reports:

"While money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive precisely the same constitutional protections as speech itself," Stevens said. "After all, campaign funds were used to finance the Watergate burglary, actions that clearly were not protected by the First Amendment."

N.Y. limit on contributions by independent groups violates First Amendment, says federal judge

A federal judge in New York did precisely what many knew he would do - he struck down the state's limit on campaign contributions by independent groups. According to the NYTimes:

In a five-page opinion, Judge Crotty lamented the influence of outsize donations in today’s political system. He wrote that the voices of regular citizens “are too often drowned out by the few who have great resources,” and disagreed with some of the Supreme Court’s analysis in the recent case, McCutcheon v. Federal Election Commission.

 

But despite his concerns, Judge Crotty wrote that he had no choice but to follow the Supreme Court’s lead in that case and in the landmark Citizens United campaign finance case, as well as the guidance of the Second Circuit.

 

“Our Supreme Court,” he wrote, “has made clear that only certain contribution limits comport with the First Amendment.” 

"The First Amendment Guide to the Second Amendment"

The title of this post comes from this recent article by Professor David Kopel, the abstract of which states:

As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many SecondAmendment questions.

Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the SecondAmendment. Part III outlines some general First Amendment principles that are also valid for the SecondAmendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendmentcases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendmentjurisprudence.

Oregon judge holds flashing headlights to alert other drivers of law enforcement is protected under First Amendment

The AP reports that an Oregon judge has ruled that the First Amendment protects drivers who flash their headlights to alert other drivers of the presence law enforcement as free speech. According to the judge,  "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct." 

As the article explains:

Hauling a truckload of logs to a Southern Oregon mill last fall, Chris Hill noticed a sheriff's deputy behind him and flashed his lights to warn a UPS driver coming the other way.

 

The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling.

 

Outraged, Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution.

 

Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy.

First Amendment protection of such conduct seems entirely reasonable to me. SCOTUS has routinely extended speech protection to generalized expressions, even when the reasoning for such expressions is not known. For example, it has protected signatures on referendum petitions, the wearing of black armbands in protest of the Vietnam War, and political yard signs. The Fourth Circuit recently even granted speech protection to support for a political candidate's campaign on Facebook by clicking the "Like" icon. Flashing one's headlights at another driver (for whatever reason) seems no less worthy of protection. 

The most compelling detail in this story is that the driver who originally received the ticket represented himself.  

As the article notes, Mr. Hill is an experienced driver who decided to fight the citation to protect himself against an increase to his insurance rate. So, he researched the issue and decided the free speech argument was applicable to the conduct for which he was ticketed. And the judge agreed.

Nicely played, sir! Nicely played indeed.

A brief summary of the development of campaign finance laws

Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC. 

After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.

Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:

[T]hat  on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.

Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:

To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.

CRL&P related posts:

• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Facebook "like" and First Amendment protection for the right to vote
• Remembering Tinker: The right to vote as expressive conduct
• Felon disenfranchisement, political power, and the First Amendment right to vote

"The law need not choose between protecting religious and secular convictions."

University of Virginia law professor Micah Schwartzman has two new essays exploring the propriety of giving special treatment to religion. In Religion as a Legal Proxy, he argues:

The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.

Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:

A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.

"Race To Stop 'Revenge Porn' Raises Free Speech Worries"

The title of this post comes from this NPR article describing the concerns of some free speech advocates that states' efforts to criminalize revenge porn threaten First Amendment rights. The ACLU, for example, has expressed concerns that such laws "tread[] on very thin ice constitutionally." As CRL&P has observed, only two states -- California and New Jersey -- have enacted laws criminalizing the non-consensual, retaliatory posting of nude and pornographic images, but states are increasingly undertaking efforts to criminalize such conduct. The article states: 

Many states, according to NCSL data, already have laws on the books that prohibit "taking nude or sexually explicit photographs of a person without a person's knowledge or consent." The issue of malicious online posting or distribution of such photos or videos, however, including "selfies" and other material that may have been initially shared with full consent, had not been widely addressed.

 

The panoply of revenge porn bills that have been introduced range from those that would make such posts a misdemeanor that carries a fine, to those that would make it a felony. Some legislation also targets with civil penalties websites that post the images, including those that attempt to extract payment from the subjects to take down the offending photos or videos.

Despite concern over such laws, constitutional scholars have said that laws criminalizing revenge porn could be crafted so as to conform with the First Amendment. NPR asked the ACLU's Lee Rowland about this, who offered the following:

Legislation that can withstand court scrutiny, Rowland says, should include four main elements: It must designate that the perpetrator had malicious intent, that his or her action caused actual harm, that he or she acted knowingly without consent, and that the victim had an expectation of privacy.

 

"Without those safeguards," she said, "these laws face an uphill battle in the courts. Not only are they unconstitutional, they are unwise — there simply isn't another example I'm aware of where there are criminal penalties for sharing otherwise lawful speech."

 

Rowland gives this example: If an Arizona bill currently being considered were to pass, a person who receives an unsolicited text of a nude selfie and shows it to a friend could be charged with a crime.

 

But the California bill, signed into law last October and on which the ACLU took a neutral position, has been criticized by revenge porn activists as not going far enough. Perpetrators can be charged with disorderly conduct for posting or distributing intimate photos, videos and recording to intentionally inflict emotional harm on the victim. The law, however, doesn't apply to photos the victim has taken him- or herself and shared — so-called sexual "self-portraits" — and does not address revenge porn websites.

 

The revenge porn problem can be tackled, but carefully, constitutional experts advise, with full attention given to the two constitutional values at play: privacy and free speech.

 

Easing the sting of some of the repercussions of the Internet, Rowland says, is desirable but a very tricky thing to do.

CRL&P related posts:

• Man's revenge-porn plot against ex-lover rebuffed by court order
• California law enforcement arrest operator of revenge porn site
• Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn
• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment

Personal drone gets off-duty journalist suspended and violates the First Amendment, journalist says

The story of Pedro Rivera and his personal drone is in full swing with The Courthouse News Service bringing more today. In his suit, Rivera claims that a police lieutenant called his boss claiming "he had interfered with the police department's investigation of the accident, and had compromised the crime scene's 'integrity.' " He says the lieutenant suggested that he be suspended; or, perhaps he exchanged Rivera's suspension for his continued "goodwill." CNS's report begins:

In a bizarre twist to a civil rights issue, a news photographer claims in a federal lawsuit that Hartford police wrongfully arrested him for using a drone to photograph a fatal car accident - at an elevation of 150 feet, far too high to interfere with police, as officers claimed.     Pedro Rivera, a photographer and editor for a local television news station, claims he was not breaking any laws or hindering emergency operations by recording police activity after a Feb. 1 fatal car accident.

 

"On February 1, 2014, the plaintiff heard on a police scanner that there was a serious motor vehicle accident in the City of Hartford. He responded to the scene of the accident, where he operated a remote-controlled model aircraft, colloquially known as a 'drone,' he owns to hover over the accident scene and to record visual images of the accident scene. His device was hovering at an altitude of 150 feet. At all times relevant to this action, the plaintiff was standing outside of the area denoted as the crime scene by officers responding to the accident. He was standing in a public place, operating his device in public space, observing events that were in plain view," Rivera says in his brief, 5-page lawsuit.

 

It continues: "Although the plaintiff is employed as a photographer and editor at a local television station, he was not acting as an employee of the television station at the time, a fact he made clear to police officers who were also at the accident scene, including defendant [police Sgt.] Yergeau and others.

 

"The plaintiff did acknowledge to defendant Yergeau and others that he does, from time to time, forward the video feed from his drone to the television station for which he works."

 

Rivera claims that Yergeau "and other uniformed officers of the Hartford Police Department surrounded the plaintiff, demanded his identification card, and asked him questions about what he was doing. The plaintiff did not feel as though he were free to leave during the course of this questioning."

 

He claims the police "demanded that the plaintiff cease operating the device over the accident scene, and that he leave the area."

 

But Rivera's attorney, Norman Pattis, claims his client wasn't breaking any laws.

Man's revenge-porn plot against ex-lover rebuffed by court order

The Maine Supreme Court has refused the plea of a man who sought to expose his ex-lover bare on the internet. It upheld the lower court's order of protection against the would-be revenge porn distributor's upcoming site, finding the would-be revenge porn distributor's threats to "constitute abuse." He had commenced to threaten his ex-lover after she met with his wife and exposed their affair. The Courthouse News Service reports: 

A married man who threatened to disseminate naked photos of his former mistress online must face an order of protection, the Maine Supreme Court ruled.

 

Ellen Clark and John Brian McLane had an affair for several months from 2011 to 2012, according to the decision, which notes that the "facts are undisputed." After the relationship ended, Clark told McLane's wife about the affair.

 

In early 2013, McLane sent Clark an email "containing a litany of insulting and derogatory remarks," Justice Ellen Gorman wrote for the court.

 

McLane also told Clark that he had obtained websites in her name on which he would post videos and nude photos of her. He said he was also setting up accounts with major search engines so the website would come up when Internet users searched for her name.

 

In addition, Clark told her that he had collected the email addresses of at least 18 of her colleagues, with whom he planned to share links to the websites.

 

"Guys will have your cell number, as well as your work number to get a hold of you and ask you out," McLane wrote.
 

He included a link to the website which read: "The naked pictures of EJ Clark will be coming soon ... along with her cell phone number and her work number for you to call and arrange a date."

 

Clark obtained a year-long protection order against McLane from a district judge in Biddeford after she said that she believed McLane would follow through with the website plan.

 

The court order prohibited McLane from contacting Clark, and directed McLane to take the websites down.

 

The Maine Supreme Court refused to disturb that order last week, concluding that McClane's conduct did in fact constitute abuse.

 

"Abuse comes in many forms, and neither the plain language of the protection statute nor our prior interpretations of it requires evidence of physical abuse or the risk of physical harm to sustain a finding of abuse," Gorman wrote.

 

The definition of abuse includes intimidation designed to prevent someone from engaging in activities which they have they right to pursue. In this case, the activity is Clark's right to go to work, according to the ruling.

 

"Clark testified that McLane's threats, which focused in large part on Clark's work colleagues and future employment prospects, were an attempt to humiliate her an cause her to avoid going to work," Gorman wrote. "Given the liberal construction of the statute that the legislature directs us to apply, the evidence Clark presented is sufficient as a matter of law to support the court's finding of abuse."

CRL&P daily reads:

• California law enforcement arrest operator of revenge porn site
• Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn
• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment

Judge considering First Amendment right to record public police activities with drones

Pedro Rivera was suspended for a week from his job at a local television station in Connecticut after police ordered him to pack up his drone and go home. At just two-and-half pounds, the device had been poking around--hovering somewhere around 150 feet. The police felt intruded upon--perhaps by the noise, or by its shadow, or perhaps even out of concern that drones would disrupt the common grackles soaring towards Maine. Regardless, practical or sentimental,  the police tattled to Rivera's employer, who sent him to his sofa for a week. Rivera sued. Now, a federal judge will consider whether there is a First Amendment free speech right to record police activities in a public space using drones.  ABC brings us the story, which states:

A journalist filed a lawsuit Tuesday alleging that Hartford police officers violated his free-speech rights by questioning his use of a remote-controlled aircraft to record images of a car wreck.

 

Pedro Rivera asked a federal court to weigh in on the appropriate uses for aerial drones as policymakers try to catch up with technology that has made them far more versatile.

 

His complaint says that officers demanded that Rivera stop flying the remote-controlled aircraft, asked him to leave the area and told his employer that he had interfered with a police investigation.

 

"I told them I was there on my personal time," said Rivera, who was suspended for a week from his on-call job with a Connecticut television station. "They went to my employer and caused a lot of problems for me and my job."

 

The lawsuit, which was filed in U.S. District Court against the Hartford Police Department, seeks damages for Rivera but also asks the court to declare that he did not break any laws by operating the 2 1/2-pound, four-rotor aircraft above the scene of the fatal Feb. 1 wreck. It says that Rivera made clear he was not working for the television station, WFSB-TV, although he acknowledged that he occasionally sent the video feed from his drone to the station.

 

"The suit is as much about trying to make sure police officers don't legislate from the beat as it is about getting a court to weigh in and say what the standards are," said Norm Pattis, the attorney for Rivera.

 

Rivera, 29, of Hartford, argues in the lawsuit that police violated his First Amendment right to free expression as well as his Fourth Amendment right to be free from unreasonable seizures. Although his device was hovering at an altitude of 150 feet, he said he was operating in public space and observing events that were in plain view.

 

Lt. Brian Foley, a Hartford police spokesman who is named as a defendant in the suit, said he could not comment on pending litigation.

 

Foley said earlier this month that police questioned Rivera but said officers did not ask him to ground the drone. At the time, he said the only concerns for police were for the safety of the officers and the privacy of the victim, whose body was left hanging out of a mangled car.

 

The Federal Aviation Administration, which is investigating Rivera's use of an aerial drone, has discouraged their use for commercial purposes, including journalism.

 

A law passed by Congress two years ago requires the FAA to integrate unmanned aircraft of all sizes into the domestic airspace by late 2015, but it's clear the agency won't meet that deadline. The FAA has been working for more than four years on regulations to permit small drones — those weighing less than 55 pounds — to be used for commercial purposes, but it repeatedly has missed deadlines for proposing those regulations.

 

Last month, the FAA again moved back the date it expects to propose those regulations to November of this year. Even then, it will be just a proposal. It takes months and often years before proposed regulations become final.

 

The FAA is tackling small drones that are flown under about 400 feet — below where most manned aircraft fly — first because they're the easiest. Regulations to permit commercial use of larger drones are even further behind.

There are, of course, significant policy considerations as to whether and under what circumstances the use of commercial drones should even be permitted. However, I'm particularly interested in considering the propriety of distinguishing between on-the-job journalists' and private citizens' use of drones. ABC reported that the plaintiff in this case was not on-the-job at the time he employed the drone, but I'm not convinced that this ought to be an important distinction--particularly as an advocate of citizen journalism. Thankfully, the trend seems in favor of protecting citizens' right to record police activities in public spaces. As it should be.