Constitutional Law Prof Blog

Supreme Court Grants Certiorari in First Amendment Rights of Sex Offenders to Access Social Media

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in Packingham v. North Carolina involving the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites.

In its opinion the Supreme Court of North Carolina, reversing the court of appeals, concluded that the statute was constitutional on its face and as applied to Packingham, a registered sex offender, who had a Facebook.com page.

The opinion for the majority by Justice Robert Edmunds,  found that the North Carolina statute was content-neutral.  The court reasoned that the "limitations imposed by the statute are not based upon speech contained in or posted on the site," but simply on the character of the site as one that is available for use by minors.  Thus the court applied "intermediate scrutiny" under United States v. O'Brien (1968), with the O'Brien factors. Perhaps most interesting is the court's analysis of the availability of  ample alternatives for expression:

[t]he Web offers numerous alternatives that provide the same or similar services that defendant could access without violating N.C.G.S. § 14-202.5. For example, defendant would not violate N.C.G.S. § 14-202.5 by accessing the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes and discuss cooking techniques, because its Terms of Service require users to be at least eighteen years old to maintain a profile. Paula Deen Network Terms of Service, http://www.pauladeen.com/terms-of-service/ (last visited 5 November 2015) (“This website is designed for and targeted to Adults. It is intended solely and exclusively for those at least 18 years of age or older.”). Similarly, users may follow current events on WRAL.com, which requires users to be at least eighteen years old to register with the site and, as a result, is not prohibited. Capitol Broadcasting Company Terms of Use, http://www.capitolbroadcasting.com/terms-of-use/ (last visited 5 November 2015) (“[Y]ou must be at least 18 years old to register and to use the Services.”). A sex offender engaging in an on-line job search is free to use the commercial social networking Web site Glassdoor.com, which prohibits use by individuals under the age of eighteen. Glassdoor Terms of Use, http://www.glassdoor.com/about/terms.htm (last visited 5 November 2015) (“To access or use Glassdoor, you must be 18 years of age or older . . . .”). Finally, sex offenders permissibly may access Shutterfly to share photos, because that site limits its users to those eighteen and older. Shutterfly Terms of Use, http://shutterfly- inc.com/terms.html (last visited 5 November 2015) (“In order to create a member account with any of our Sites and Apps, you must be at least 18 years of age.”).

 On the as-applied challenge, the court similarly rejected Packingham's First Amendment claims, finding that the incidental burden on Packingham's speech was no greater than was essential to the furthering the government's interest in protecting children.  Similarly, the court concluded that the statute was not overbroad and that Packingham could not raise a vagueness challenge given that he was within the purview of the statute.

The dissenting opinion, authored by Justice Robin Hudson and joined by Justice Cheri Beasley, contended that O'Brien was not the correct standard because the statute "primarily targets expressive activity usually protected by the First Amendment," and should be more properly considered as content-based under Reed v. Town of Gilbert.  However, Justice Hudson argued that even under O'Brien, the statute burdened substantially more speech than necessary" because it sweeps too broadly in the sex offenders it includes and in the speech (activity) it prohibits, including social networking sites that allow minors (such as newspapers and Amazon). 

Other courts have ruled on the issue of sex offender bans from social media. Recall the Seventh Circuit's opinion finding Indiana's sex offender ban from social media unconstitutional.  And also recall the 2012 decision by a federal district judge finding Louisiana's broad prohibition unconstitutional under the First Amendment.  If one were to make a wager, it would seem that the North Carolina statute would similarly be declared unconstitutional.

[image via -cropped]

 

Supreme Court Grants Certiorari in Glouster County School Board v. G.G.: Transgender School Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court today has granted certiorari in Glouster County School Board v. G.G.  

As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.  

The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration.  The Questions presented in the certiorari petition are:

(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;

(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and

(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

 

image via

Conservatives Make the Case for Obstruction of SCOTUS Nominees

In the wake of Senator McCain's statements last week--first saying that Senate Republicans would block any SCOTUS nominees by a President Clinton, then (kind of) walking it back--conservative scholars are starting to outline the case for absolute obstruction and even permanently reducing the size of the Supreme Court.

Ilya Shapiro makes the case at The Federalist; Michael Stokes Paulsen makes the case at the National Review. Both argue that the Constitution doesn't require the Senate to consider, much less approve, any nominee; and both note that nothing in the Constitution sets the number of justices at 9. Beyond those points, their arguments turn on politics alone--that obstruction will give the advantage to conservatives, at least until the 2020 election, and maybe beyond.

This flies in the face of Senate Republicans' stated reason for refusing to give Judge Garland a hearing (let the people decide, through the presidential election). When that explanation wears out, expect them to adopt these new, "constitutional" arguments.

Divided Eighth Circuit Upholds Nursing Student's Dismissal for Facebook Posts

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Keefe v. Adams, a divided panel of the Eighth Circuit upheld the dismissal of a student from the Associate Degree Nursing Program at Central Lakes College (CLC) in Minnesota.  Other students had complained about posts on Craig Keefe’s Facebook page and he was eventually removed from the program for :behavior unbecoming of the profession and transgression of professional boundaries."  Keefe challenged the constitutionality of the dismissal based on the First Amendment and procedural due process.  The district judge granted summary judgment for the university officials and the majority opinion, authored by Judge James Loken for the Eighth Circuit panel, affirmed.

The concerning posts involved other students in the class and group projects, including his objection to a fellow student changing the group presentation - "Not enough whiskey to control that anger" and calling another student a "bitch" for presumably reporting his Facebook posts.

There was also this:

Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management.

In a footnote, the court helpfully explains:

a hemopneumothorax is a “trauma” where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure.

College officials discussed the posts and Keefe originally deflected.  He was dismissed from the program under specific provisions in the Nursing Program Student Handbook which also refers to the Nurses Association Code of Ethics, including professional boundaries and "behavior unbecoming."  He appealed within the the college, citing failures of procedural due process, but his appeal was denied.

On the procedural due process issue, the majority concluded:

Viewing the summary judgment record as a whole, we conclude that Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision. Nothing in the record suggests that Keefe’s removal from the Nursing Program was not a careful and deliberate, genuinely academic decision.

Dissenting in part, Judge Jane Kelly argued that the dismissal decision was not "academic."  Instead, it was a disciplinary dismissal for which he argued the due process standard should be higher.  Judge Kelly highlighted one of the meetings with Keefe in which he was not given all the posts beforehand with "time to review the posts and formulate a response."  However, Judge Kelly contended that the college administrators were entitled to qualified immunity on the due process claim.

The First Amendment issue is the central one.  As Judge Loken's opinion for the majority notes, Keefe frames the issue categorically: "a college student may not be punished for off-campus speech," unless that speech is "unprotected by the First Amendment."  Judge Loken characterized this as an "extreme position" not adopted by any court.

The Eighth Circuit majority rehearsed some of the cases involving academic requirements for professionalism and fitness, including cases such as Ward and Keeton involving professional students' failure to comply with anti-bias requirements.  These principles, the court held, were equally pertinent to off-campus speech, especially given that the off-campus speech was "directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies."

For the dissenting judge, it was important that Keefe's Facebook posts "were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules."  As to the "threat," the dissenting judge argued that the district judge had failed to make findings that Keefe's statement qualified as a true threat.  For the dissenting judge, summary judgment was improper.

The split opinion might indicate that the case is a good candidate for en banc review and there were First Amendment groups as amici on behalf of the dismissed student.  Nevertheless, the Eighth Circuit opinion does comport with the trend of allowing professional educational programs latitude to "professionalize" students and to dismiss those who do not conform.

Federal Judge Enjoins Michigan's Ballot-Selfie Ban

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her order in Crookston v. Johnson, Federal District Judge Janet Neff has issued a preliminary injunction regarding Michigan's ban on the so-called ballot-selfie.  Michigan's ban is expressed in two statutes, MICH. COMP. LAWS §§ 168.579, 168.738(2), which require rejection of the ballots for "exposure" and Secretary of State rules prohibiting photographs and use of cell phones by voters in the voting station.

Not surprisingly, Judge Neff relied on the First Circuit's opinion last month in Rideout v. Gardner invalidating New Hampshire's prohibition of the ballot-selfie. Judge Neff assumed that the Michigan scheme was content-based - - - prohibiting only speech about marked ballots - - - and that even if there were compelling government interests such as coercion, the means chosen was not narrowly tailored. However, even if the Michigan scheme was deemed content-neutral, Judge Neff found that it failed intermediate scrutiny.  Again, part of the problem is that there is little if anything to show that the coercion and vote-buying is related to the ballot-selfie, and even if there were a sufficient interest, Michigan's ban is not sufficiently focused.

Image by Andreas Schwarzkopf via

One relatively novel government interest raised by Michigan is protection of  “the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls.”  This interest is not extensively discussed Judge Neff, but the specter of long lines caused by "photographers" could be important.  However, in North Carolina where early voting has begun, the lines are reportedly related to the decrease in voting places rather than to voter-conduct.

With the election imminent, Michigan may spend its time seeking review from the Sixth Circuit - - - or it may simply concede that the trend seems to be toward ballot-selfies as protected by the First Amendment.

 

State Court Judges Politically Biased in Election Disputes

Profs. Joanna Shepherd and Michael S. Kang (both of Emory), in cooperation with the American Constitution Society, recently published a comprehensive empirical study of state-court decisions in election cases. The result: State court judges are politically biased in these cases and thus favor their own party's interests in election disputes.

The study provides yet one more reason not to elect judges, especially in partisan elections.

The study, Partisan Justice: How Campaign Money Politicizes Judicial Decisionmaking in Election Cases, forthcoming in the Stanford Law Review, is based on data from over 500 election cases from all 50 states from 2005 to 2014, including over 2,500 votes from more than 400 judges in state supreme courts.

The upshot:

Analyzing a new dataset of cases from 2005 to 2014, this study finds that judicial decisions are systematically biased by these types of campaign finance and re-election influences to help their party's candidates win office and favor their party's interests in election disputes.

The study finds that judicial partisanship is significantly responsive to political considerations that have grown more important in today's judicial politics. Judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.

But "[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about."

Backpage Lacks Standing to Challenge Ban on Advertising Sex Trafficking

Steven D. Schwinn, John Marshall Law School

Judge Reggie B. Walton (D.D.C.) ruled today in Backpage.com v. Lynch that Backpage lacked standing to challenge a federal law criminalizing ads for sex trafficking.

The ruling ends this case, unless and until Backpage successfully appeals.

Backpage, an on-line classified ad service that hosts an "adult services" section, challenged the Stop Advertising Victims of Exploitation Act of 2015, which amended the existing sex-trafficking prohibition and created a criminal penalty for advertising sex trafficking, including trafficking of minors. Backpage brought a pre-enforcement challenge to the SAVE Act, arguing that it was unconstitutionally vague and overbroad, and that it violated Backpage's free speech. To establish standing, Backpage argued that it intended "to engage in a course of conduct arguably affected with a constitutional interest."

The court rejected that argument. The court said that Backpage only "intends to continue hosting third party advertisements, including advertisements that are adult-oriented and concern escort services," but not advertisements that (even arguably) violate the SAVE Act (which, according to the court, wouldn't be constitutionally protected, anyway). Because Backpage didn't "allege[] an intention to engage in a course of conduct arguably affected with a constitutional interest," and that is "proscribed by [the] statute [it] wishes to challenge," it lacked standing for its pre-enforcement challenge.

The court distinguished the several other cases that Backpage won, writing that those cases were different.

No Political Question Bar for Abu Ghraib Torture Victims

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.

The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.

The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.

The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)

As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)

In short:

Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.

As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.

In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.

Brennan Center on Secret Laws

The Brennan Center released a new report, The New Era of Secret Law. Here's from the introduction:

Most of all, there is scant public understanding of the depth and scope of the problem. OLC opinions and FISA Court opinions are the only two manifestations of secret law that regularly make headlines. But OLC and the FISA Court are not the only government entities that make law. Moreover, the factor driving secrecy in OLC and FISA Court opinions--namely, a dramatic increase in the scope of national security activities and authorities--is a potent force throughout much of government. How common is security-driven secret law, and where else is it occurring?

Solving the problem of secret law raises its own set of questions. Are there cases in which disclosure of rules or legal interpretations, even with sensitive facts redacted, could harm national security? How great is that risk, and how does it compare with the harms of secret law? What procedural and substantive reforms could help ensure that the public's interests in both transparency of laws and the security of the nation are best served?

This report attempts to shed light on these questions, beginning with the foundational inquiry into what secret law is.

Ninth Circuit Upholds California's Disclosure Statute Regulating Crisis Pregnancy Centers

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion.  Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.

Recall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions.  In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.  The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County,  affirmed a finding that one of the mandated disclosures was constitutional and the other was not.

The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice")  should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding  the United States Supreme Court's decision in Reed v. Town of Gilbert (2015).  Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":

We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.

Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least.  It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.

 In applying intermediate scrutiny, Judge Nelson found that

California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *

We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.

Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.

The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.

There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.

[image via]

Gerhardt and Painter on Senate Obstruction of Judicial Nominees

Michael Gerhardt (UNC) and Richard Painter (U. Minn.) recently released The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change, an ACS Issue Brief that criticizes Senate obstruction of judicial nominees and proposes a solution.

Gerhardt and Painter argue that the majority and minority leaders in the Senate should enter into a pact "to keep their respective members completely committed to the objectives of allowing every judicial nomination the opportunity to receive a hearing and making public the reasons for any opposition." "An agreement between the majority and minority is the same mechanism that was used in 2013 to fix the problem with anonymous holds over judicial nominations, and it is the only kind of mechanism that can guarantee that our federal courts, including the Supreme Court, will be fully staffed and capable of exercising their constitutional functions as the third branch of government."

Gerhardt and Painter's latest solution complements their earlier ones, from this 2011 ACS Issue Brief. There the authors prescribed this four-part plan:

1.    Nominees should get a Judiciary Committee hearing within 90 days of nomination;

2.    The Senate should bar the use of anonymous holds;

3.    Every nominee should come to the Senate with a presumption that the nominee will get a prompt Judiciary Committee hearing, with the burden falling on any senators who oppose the nomination "to make their case publicly"; and

4.    When a nominee is reported out of committee, there's a presumption "that a majority 'yes' votes are needed to confirm the nominee," with an up-or-down vote within 120 days of the nomination.

D.C. Circuit Hands Victory to Unitary Executive Theory, Defeat to CFPB

Steven D. Schwinn, John Marshall Law School

In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.

The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.

In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:

The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.

Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).

After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.

Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.

Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).

This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.

Federal Judge Extends Florida Voter Registration Because of Hurricane

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an Order in Florida Democratic Party v. Scott, United States District Judge Mark Walker extended the voter registration until Wednesday, October 12, at 5:00pm and also scheduled a hearing for that afternoon for further determinations.

As Judge Walker explained the facts:

Florida’s voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian’s had other avenues to ensure that their right to vote was protected.

Judge Walker first considered whether the Florida Democratic Party had standing to assert the rights of voters, quickly concluding it had.  Judge Walker next decided that while the second named defendant, Ken Dentzer, as Secretary of State was a proper defendant, Governor Scott was not.  Judge Walker concluded that while Governor Scott had statutory general emergency management powers, this did not include extending voter registration.  Thus, the judge held that Governor Scott has no power in this regard and is not a proper defendant.

 

Hurricane Matthew approaches Florida 7 October 2016 NASA via

 

On the merits in the context of the Temporary Restraining Order (TRO), Judge Walker applied the well-established test of Burdick v. Takushi (1992) regarding challenges to state election laws: courts considering a challenge to state election laws “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” 

 

Judge Walker concluded there was a severe burden on voting rights.  He noted that Florida's statutory framework includes no provision that extends the voter registration in an emergency.  Given the hurricane, "Florida’s statutory framework completely disenfranchises thousands of voters, and amounts to a severe burden on the right to vote."  A severe burden warrants strict scrutiny.  Judge Walker concluded that even if Florida could articulate a compelling state interest - - - adding in parenthesis ("and this Court doubts that it can") - - - it "is nonsensical to argue that it is narrowly tailored to that interest."  Further, even if more lenient scrutiny was afforded, Florida's statutory scheme would be unconstitutional.

Even assuming that Florida’s statutory framework was subject to a more flexible Anderson–Burdick test, it still would be unconstitutional. In no way could Defendants argue that there is some sort of limitation that requires them to burden the constitutional rights of aspiring eligible voters. Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day.  There is no reason Florida could not do the same. In so ruling, this Court is not suggesting that Florida has to allow voter registration up to Election Day. Rather, it simply holds that the burden on the State of Florida in extending voter registration is, at best de minimis. . . .

Finally, Florida’s statutory framework is unconstitutional even if rational basis review applied (which it does not). Quite simply, it is wholly irrational in this instance for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.

[citations omitted].

    After finding that the TRO criteria supported the restraining order, Judge Walker added that the order was necessary state-wide because "Hurricane Matthew’s effects are not circumscribed to one region of the state." He reasoned that it "would be grossly inappropriate, for ex- ample, to hold that aspiring eligible voters in Jacksonville could register later than those in Pensacola."  

Therefore, this Order holds that Florida’s current statutory framework is unconstitutional. That unconstitutionality is not limited to those in the areas most affected by Hurricane Matthew. It extends to the entire State of Florida.

Thus, Floridians have at least one additional day to register to vote for the November 9 election.

UPDATE: 

In a brief Order after the hearing on October 12, Judge Walker granted the preliminary injunction "for the same reasons" articulated in the TRO order and extended the deadline to Tuesday, October 18, 2016.

Is New York's Loitering for Prostitution Statute Unconstitutional?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a nearly 100 page complaint filed in the federal court in D.H. v. City of New York, the plaintiffs argue that New York's Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], is unconstitutional on its face and as applied.  Represented by The Legal Aid Society, the central constitutional claims are that the statute is unconstitutionally vague under the due process clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

The intersections and distinctions between vagueness under the Due Process Clause and overbreadth under the First Amendment were elucidated by the United States Supreme Court in Holder v. Humanitarian Law Project (2010) and the complaint in D.H. might serve as a textbook example of these issues.  Essentially, the complaint alleges that the NY Penal Code section, §240.37[2] , does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The "black pea coat" as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant "wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes."  

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City's practice of stop and frisk.  Recall that a federal judge found NYC's practices violated equal protection in her opinion in Floyd v. City of New York, later stayed - - - and thereafter clarified - - - by the Second Circuit, followed by the City's new administration agreeing with the decision and abandoning the appeals.  One of the complaint's pendent state law claims is a violation of the city's own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor's veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish "probable cause" or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

 [image: Moulin Rouge by Toulouse Latrec via]

 

 

Ninth Circuit Denies En Banc Review in Sexual Conversion Ban Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law.  Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.

The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:

Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.

[Added language underlined; italics in both opinions].

With such a small revision, it would seem there was little contention about the case.  Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute.  The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.

 [image via]

 

 

Seventh Circuit Reality Checks Mike Pence on Syrian Immigrants

The Seventh Circuit upheld a preliminary injunction against Indiana Governor Mike Pence's program to halt federal resettlement funds to a private organization that resettles Syrian immigrants. The smack-down ruling was hardly a surprise after the brutal oral arguments, just last month.

The ruling means that Indiana cannot stop payment of federal funds for Syrian resettlement, at least for now. But if the courts' actions so far are any indication, this preliminary injunction will quickly turn to a permanent one.

The case arose when Governor Pence announced that he would stop payment under the federal Refugee Act for resettlement of Syrians, and Syrians alone. But there was a problem: The Refugee Act bans discrimination by nationality, among other characteristics. And that's exactly what Pence did in denying payment for Syrian resettlement.

The Seventh Circuit rejected Pence's argument that he wasn't really discriminating by nationality:

But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

The court also schooled Pence on some basics of refugee screening (it's thorough, and the federal government does it, without the second-guessing of the likes of Pence), and called him on his empty claims and baseless fears:

The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this believe has been presented, however; it is nightmare speculation.

The ruling only affirms the lower court's grant of a preliminary injunction, so theoretically doesn't end the case. But the handwriting is on the wall: This program violates the terms of the federal Refugee Act.