Constitutional Law Prof Blog

Court Says Free Speech Trumps Antidiscrimination for Website Designer

The Supreme Court ruled on Friday that Colorado's anti-discrimination law violated the free-speech rights of a website designer who does not wish to create custom wedding websites for same-sex couples.

The ruling leaves the anti-discrimination law in place, but prohibits enforcement that would compel speech.

The Court didn't define "speech," however, at least not with any precision. The case therefore promises to bring new rounds of litigation as individuals and businesses seek to get out from under anti-discrimination laws--including laws that prohibit discrimination by sexual orientation or, apparently, any other characteristic--by defining their products and services as "speech." In short, we don't know exactly how far this ruling extends--to what kinds of objections based on what kinds of characteristics, and what constitutes "speech."

The ruling, while dealing with free speech (not religion), also follows the Court's trend in its Religion Clause cases of inviting and compelling religion and religious beliefs to play a greater and greater role in public life. That's because the plaintiff in the case, Lorie Smith, who owns 303 Creative, objects to creating custom wedding websites for same-sex couples because of her religious beliefs. But just to be clear: nothing in the ruling protects only a person or business who objects based only on religion; instead, the ruling prohibits the government from applying anti-discrimination laws in a way that would compel a speaker to communicate in violation of any of their beliefs.

The case, 303 Creative v. Elenis, tested whether Colorado's anti-discrimination law (which prohibits discrimination by public accommodations because of sexual orientation, among other characteristics) impermissibly compelled Smith, who sought to provide custom wedding websites for customers, to create websites for same-sex couples. The Court said yes: the Colorado law compelled Smith to speak against her beliefs in violation of the First Amendment.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson.

Court Clarifies True Threats, Requires Subjective Recklessness

The Supreme Court today clarified the "true threats" threats exception to the First Amendment, holding that true threats require that a speaker had a subjective understanding of the threatening nature of their statements, under a recklessness standard. In short, "The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening in nature."

In so ruling, the Court rejected an objective standard--that a reasonable person would understand their statements as threats. As a result, the Court narrowed the range of unprotected true threats, and protects more threats, again, so long as the speaker didn't have a subjective understanding of the threatening nature of their statements.

The ruling is consistent with a string of cases in recent years narrowing the familiar "categories" of unprotected speech.

The case, Counterman v. Colorado, arose out of a series of threatening Facebook posts by Billy Counterman and directed at a local singer and musician. As a result of the posts, the recipient "stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain."

Counterman was convicted under a Colorado stalking statute. He raised a free-speech defense, but the Colorado courts rejected it, applying an objective standard and holding that the statements were objectively threatening.

The Court reversed. It ruled that the First Amendment requires a subjective standard--that Counterman had a subjective understanding that his statements were threatening. The Court said that anything else would chill too much otherwise protected speech.

The Court went on to set the subjective bar relatively low, however, at recklessness. Here's why:

In advancing past recklessness, we make it harder for a State to substantiate the needed inferences about mens rea (absent, as is usual, direct evidence). And of particular importance,we prevent States from convicting morally culpable defendants. For reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.

Justice Sotomayor concurred, joined in part by Justice Gorsuch. She wouldn't've "reach[ed] the distinct and more complex question whether a mens rea of recklessness is sufficient for true-threats prosecutions generally," although she agreed with the Court that a subjective, reckless standard was appropriate here. She wrote, "Furthermore, requiring nothing more than a mens rea of recklessness is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines."

Justice Thomas dissented, taking aim at New York Times v. Sullivan and the Court's use of that case in crafting the subjective, reckless standard.

Justice Barrett dissented, joined by Justice Thomas, arguing that the Court's reckless standard "unjustifiably grants true threats preferential treatment" under the First Amendment.

 

Ninth Circuit Upholds Restrictions on Public Employee's Speech During Investigation

The Ninth Circuit ruled that a public agency did not violate the First Amendment when it prohibited an employee from speaking to coworkers on matters related to the employee's alleged misconduct while an investigation was pending.

The case, Roberts v. Springfield Utility Board, arose when SUB initiated an investigation into Todd Roberts's "dishonest related to [his] work attendance." SUB prohibited Roberts from communicating with coworkers regarding the matter while the investigation proceeded. Roberts then sued, arguing that the restriction violated free speech.

The Ninth Circuit rejected the claim. The court ruled that SUB's restriction applied to speech that was not on a matter of public concern, and therefore Roberts didn't clear the first hurdle under Pickering v. Board of Education. The court noted that SUB's restriction permitted Roberts to communicate with coworkers on other matters, and allows his attorney to communicate with coworkers on matters related to the investigation.

Check it Out: Koppelman's Emerging First Amendment Right to Mistreat Students

Check out Andrew Koppelman's Emerging First Amendment Right to Mistreat Students, Case Western L. Rev.:

Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing interest. The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases. But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

Ninth Circuit Rules for Student who Sought to Wear Feather at Graduation

The Ninth Circuit last week ruled in favor of a member of the Sisseton Wahpeton Oyate tribe and graduating high-school student who sought to wear a feather on her cap during graduation ceremonies. The ruling reverses a district court's dismissal of the case and allows it to move forward.

The case, Waln v. Dysart School District, arose when the student asked permission to wear an eagle feather on her graduation cap in honor of her religious beliefs and to pay respect to her ancestors. The district denied permission, pointing to a policy that prohibits students from adding any decoration to their cap or gown. The student showed up at graduation with a feather, and school officials denied her entry. She sued, arguing that the district violated her free speech and free exercise rights, given that other students appeared at the ceremony with secular decorations on their caps.

The district court dismissed the case, but the Ninth Circuit reversed.

The court held that the student plausibly pleaded that school officials treated her differently than other students who decorated their caps with secular messages. The court said that this rendered the policy not generally applicable (under free exercise) and viewpoint based (under free speech).

The court then rejected the district's claim that compliance with the Establishment Clause justified its actions. "[T]he District has not sufficiently met its burden, at this stage, to show that accommodating religious dress for an individual student would have any effect on other students' rights."

Digital Millennium Copyright Act Doesn't Violate Free Speech, D.C. Circuit Rules

Steven D. Schwinn, University of Illinois Chicago School of Law

The D.C. Circuit ruled this week that the DMCA doesn't violate the First Amendment rights of an inventor who wanted to create and sell a device that would circumvent technological protection measures for copyrighted digital content.

The case, Green v. U.S. Department of Justice, tests the DMCA's prohibition on "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]," or trafficking in technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work."

Andrew "bunnie" Huang said that he wanted to create and sell a device that would so circumvent, and that he also wanted to publish his computer code to share with others. He brought a pre-enforcement challenge to the DMCA under the First Amendment.

The D.C. Circuit ruled that he's unlikely to succeed on the merits. (The case came to the court on Huang's appeal of the district court's denial of a preliminary injunction.) The court held that Huang's code was, indeed, speech, but that the DMCA was a content-neutral regulation, because the statute "cares about the expressive message in the code 'only to the extent that it informs' the code's function." (Quoting City of Austin v. Reagan National Advertising (2022)). The court then held that the DMCA easily passed intermediate scrutiny: it furthers an important or substantial government interest in protecting copyrighted work; the government interest is unrelated to the suppression of free expression; and the incidental restriction on free speech is no greater than necessary to advance that interest.

Supreme Court to Test Free Speech Against Anti-Discrimination

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Monday in 303 Creative v. Elenis, the case testing whether a website designer's free-speech claim trumps a state's anti-discrimination law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

INTRODUCTION

The First Amendment prohibits government from compelling speech, and from regulating speech based on its content and viewpoint. But on the other hand, the First Amendment allows the government to regulate conduct, even if the regulation has an incidental effect on speech, so long as the regulation is unrelated to the expression of ideas. And it allows the government more freedom to regulate commercial speech. This case pits these First Amendment principles against each other.

ISSUE

Can a website designer refuse to create a website for a same-sex wedding, even though state law prohibits discrimination by sexual orientation?

FACTS

Lorie Smith is a graphic artist and website designer. She is the sole owner of 303 Creative, her custom design studio, where she provides website and graphic design, branding, marketing strategy, and social-media management services to her clients.

Smith will serve any client, regardless of race, creed, sexual orientation, or gender. But she will not create content that contradicts her Christian beliefs. So, for example, she “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Smith expanded her portfolio to include custom wedding content and websites. According to Smith, “[e]very one of [her] wedding websites will not only express messages about the beauty and eternal commitment of the couples, but will also express approval of the couple’s marriage.” Smith designed a sample of a wedding website that includes a Bible passage, but the website doesn’t otherwise reflect the content of potential future websites. Smith says that her websites will bear a notice that reads, “Designed by 303Creative.com.”

Smith also designed a 303 Creative website page that announced her new wedding services. The design includes a statement that God is calling Smith “to explain His true story about marriage, and to use the talents and business He gave [Smith] to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” The statement goes on:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.

Smith says that she “cannot yet share that message,” however, because “Colorado forbids it on pain of investigation, fines, and re-education.” Smith is referring to two provisions in the Colorado Anti-Discrimination Act, or CADA. The first, the Accommodations Clause, prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The second, the Communications Clause, prohibits businesses from “display[ing]” a “notice” that “indicates that the full and equal enjoyment of the goods [or] services . . . will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable” based on a protected characteristic.

Smith brought a pre-enforcement challenge to CADA and sought an injunction halting its enforcements. She alleged that the two provisions violated her free-speech rights because they would require her to create websites for same-sex weddings. The district court ruled against Smith, and the United States Court of Appeals for the Tenth Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case involves several different free-speech doctrines, and pits them against each other. On the one hand, the compelled-speech doctrine says that the government cannot require individuals to communicate a message they do not wish to communicate. In addition, the general rule against content- and viewpoint-based restrictions says that any government regulation of speech based on the content or the viewpoint of the speech must be narrowly tailored to meet a compelling government interest. (That test is called “strict scrutiny.”)

On the other hand, the conduct-as-speech doctrine allows the government to regulate speech that is incidental to conduct at a lower level of scrutiny (“intermediate scrutiny”), so long as the regulation is not related to the expression of ideas. Moreover, the commercial-speech doctrine allows the government to regulate speech promoting a commercial exchange also at a lower level of scrutiny.

The parties frame their arguments around these competing doctrines.

Smith argues first that CADA compels her to speak in violation of the First Amendment. She says that her wedding websites amount to “pure speech,” and that CADA, by requiring her to create websites for weddings that contradict her beliefs, impermissibly compels her to speak in violation of her free-speech rights.

Smith points to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in support of her claim. The Court in that case ruled that the First Amendment allowed the organizers of a public parade celebrating Irish heritage to exclude an LGBTQ+ group, even though anti-discrimination law prohibited the organizers from discriminating on the basis of sexual orientation. Smith says that under Hurley when an anti-discrimination law “makes ‘speech itself . . . the public accommodation,’ and forces someone to ‘alter’ their ‘expressive content,’ the government must satisfy strict scrutiny,” which it cannot do here. According to Smith, Hurley applies squarely to her case: “CADA makes an artist’s speech the accommodation, and Colorado’s application of the law to an artist like Smith forces her to alter her expressive content in untenable ways.”

Smith contends that she does not lose her free-speech rights just because she creates speech as part of her business. She says that CADA’s application to her speech is not “incidental” to her conduct; instead, CADA directly regulates her “pure speech.” Moreover, she claims that she is not a “passive conduit” for her client’s messages; instead, she creates the messages herself, and “retains final editorial control over them.” Smith claims this is “[her] speech and her message.”

Smith argues next that CADA’s two provisions impermissibly regulate her speech based on its content and its viewpoint. She says that both provisions require her to promote content and a viewpoint that she finds objectionable—any marriage other than one between one man and one woman. Smith claims that CADA does not serve a compelling interest in enforcing the two provisions, because, while a state may have a general interest in protecting equal access to the marketplace, it has no compelling interest in “ensuring [general] access to a particular person’s unique, artistic product.” Moreover, she contends that CADA is not narrowly tailored, because the state “has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate.” For example, Smith says that “Colorado could interpret CADA to allow speakers who serve all people to decline specific projects based on their message,” it could “enact[] textual exemptions for artists who decline projects based on their messages,” it could exempt services for the “wedding industry,” or it could limit CADA’s reach to “physical spaces.” 

Finally, Smith argues that neither the anti-discrimination context nor the topic of marriage “justifies an exception to th[e] cardinal rule” that government cannot “violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.’”

The state counters that CADA regulates Smith’s business, not her speech. The state says that a business like 303 Creative can decide for itself what it would like to sell. A business can even define its services quite narrowly, for example, “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But the state contends that once a business decides what to sell, CADA requires the business to sell “to all without regard to a customer’s protected characteristic.” In other words, according to the state, CADA regulates sales, not the services or products sold. And “it does not prohibit or compel the speech of any business.”

Moreover, the state says that CADA does not regulate expressive conduct. According to the state, “[r]outine commercial transactions do not become expressive conduct just because the business believes a sale would convey approval of the buyer.” But to the extent that the Court “needs to consider the content of the Company’s websites to determine whether the Company will deny equal access to its services,” the state says that the case is not yet ripe for judicial review. According to the state, that’s because nobody has asked Smith to create a website for a same-sex marriage (although Smith claims that she received an inquiry), and the state has not required her to create such a website.

The state argues next that even if the Accommodations Clause burdens Smith’s speech, the burden is “incidental,” that is, not related to the expression of Smith’s ideas. As such, the state says that the Clause is subject to a lower level of review, intermediate scrutiny, and easily passes.

But even if the Court were to apply strict scrutiny, the state argues that the Accommodations Clause passes muster. The state claims that it has a compelling interest “in ensuring equal access to publicly available goods and services”—an interest that is “rooted in this nation’s history and traditions, which has long recognized both the material and dignitary harms of the denial of service.” Moreover, the state contends that the Accommodations Clause is narrowly tailored to meet this interest, because “[i]t targets only specific commercial conduct: the discriminatory sale of products and services by businesses open to the public.” The state contends that Smith’s proposed exemptions (which purport to show why CADA is not narrowly tailored) “would upend antidiscrimination law—and other laws too”—by “depart[ing] from this Court’s doctrine and creat[ing] an enforcement regime riddled with uncertainty and inconsistency.”

Finally, as to the Communications Clause, the state argues that “[i]t prohibits only commercial speech that facilitates illegal conduct—expression that receives no free speech protection.” The state says that the Communications Clause does not prohibit Smith from expressing her views; it only prohibits her from advertising that she will deny equal access to her services.

The government weighed in as amicus to support the state. It makes substantially similar arguments.

SIGNIFICANCE

If this case seems familiar, that’s because it is. Ever since states started to recognize same-sex marriages, wedding-service providers have challenged state anti-discrimination laws as violating their rights to free exercise of religion and free speech. The Court famously ruled in one of these cases just four years ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 (U.S.)__ (2018), the Court ruled that the Colorado Civil Rights Commission’s application of CADA—the same CADA that’s at issue in this case—violated a cakebaker’s free-exercise right to refuse to bake a cake for a same-sex wedding. The Court held that some of the commissioners’ statements reflected anti-religious animus against the cakebaker, and therefore the Commission’s ruling against the cakebaker violated the Free Exercise Clause.

This case is the fully anticipated follow-up to Masterpiece. But unlike Masterpiece, this case comes to the Court as a free-speech case. (The cake-baker in Masterpiece also raised a free-speech claim, but the Court did not take it up.) It thus gives the Court yet another chance to test individual constitutional rights against a state’s anti-discrimination laws, albeit under a different doctrine.

As a free-speech case, 303 Creative will force the Court to navigate some distinctive landmines with roundly discredited historical antecedents. For example, Smith’s proposed statement echoes and amplifies earlier statements by many commercial establishments that they will not serve individuals of a particular race, ethnicity, or nationality. Similarly, Smith’s proposed exception from anti-discrimination laws echoes and amplifies earlier statements by many commercial establishments and individuals that they have a free-speech or free-association right to discriminate, anti-discrimination laws notwithstanding.

Smith tries to provide the Court with a roadmap through these landmines. She does this by focusing narrowly on her work as an “artist” with a creative message (and not just an ordinary business), who proposes to work in a particular area, weddings, where views can be strong and mixed. It’s not at all clear that Smith’s roadmap actually dodges the landmines, though. As the state contends, her efforts to narrow her case and distinguish her work may simply create confusion and uncertainty as to the application of anti-discrimination law.

This could mean that any ruling for Smith would open the door wide for other exemptions from anti-discrimination laws. For example, even a narrow ruling for Smith could invite other individuals and businesses to cast themselves as “artists,” or define their work as serving a particular market that is inextricably tied up with speech. (It’s easy to see how any variety of individuals and businesses could lodge these claims.) It could also invite individuals and businesses to seek exemptions from anti-discrimination laws for those discredited historical practices, mentioned above. Given the nature of this case (in contrast to Masterpiece, where there was a record of enforcement), there may be no obvious way for the Court to rule for Smith while not effectively drilling a tunnel through anti-discrimination laws.

One final observation. The Court’s jurisprudence in this area—testing First Amendment rights against anti-discrimination laws—seems to treat laws protecting against LGBTQ+ discrimination less favorably than it treats laws protecting against other kinds of discrimination. The Court doesn’t specifically acknowledge this, however, much less provide a principled reason for the difference.

If the Court rules for Smith, it may have to say that quiet part out loud. In other words, it may have to explain why free speech protects Smith’s statements that she won’t create websites for same-sex weddings, even if free speech would not protect her statements that she won’t create websites for, say, Black weddings. Any attempt to explain this difference could prove exceedingly embarrassing (and uncomfortably revealing) for the Court. Yet a ruling for Smith without this explanation will simply invite the next inevitable case, testing whether free-speech protects a business’s announcement that they will not serve Black people.

 

Second Circuit Says University Officials Get QI for Revoking Scholarship

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled this week that University of Connecticut officials enjoyed qualified immunity from a UConn soccer player's free-speech and due process claims after the officials terminated the player's scholarship for raising her middle finger on camera after a nationally broadcast game. At the same time, the court ruled that there was sufficient evidence to allow the player's Title IX claim to move forward.

The case, Radwan v. Manuel, arose when Noriana Radwan, a UConn soccer player, raised her middle finger on camera after a nationally televised game. UConn officials suspended her from further tournament play and later revoked her one-year scholarship. Radwan sued, arguing that the move violated the First Amendment, due process, and Title IX.

The Second Circuit ruled that UConn officials enjoyed qualified immunity against the free-speech claim, because "the right of a student-athlete at a university, while in public and on the playing field, to make a vulgar or offensive comment or gesture without suffering disciplinary consequences" wasn't clearly established. The court explained:

Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university's uniform as part of an extracurricular activity.

As to the due process claim, the court held that a fixed-term athletic scholarship terminable only for cause gave rise to a constitutionally protected property right. But it said that this right wasn't clearly established when officials revoked Radwan's scholarship.

The court ruled for Radwan on her Title IX claim, however, saying that "taken as a whole and construed most favorably to Radwan as the non-moving party, [the evidence] is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender." That's not a final ruling on the Title IX claim; it only allows the claim to move forward.

High Court Allows January 6 Committee to Obtain AZ GOP Head's Phone Records

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today rejected an attempt by Kelli Ward, the chair of the Arizona Republican Party, to stop the January 6 Committee from obtaining her phone records around the time of the insurrection.

The ruling means that Ward's phone provider must turn the records over. (The subpoena seeks telephone numbers, not the content of the conversations.)

The Court didn't provide an explanation for denying Ward's application. Justice Thomas and Alito would have granted it, but they provided no explanation, either. (That's not unusual for this kind of request. The Court often issues a decision on an emergency application without an explanation.)

The Committee subpoenaed Ward's provider after Ward, who played an instrumental role in various efforts to reverse the election and prevent the peaceful transition of power, repeatedly invoked the Fifth Amendment when she testified to the Committee earlier this year. Ward then sued, seeking to quash the subpoena. The district court and the Ninth Circuit both rejected her motion; today the Supreme Court rejected it, too.

Ward argued that the subpoena violated her First Amendment associational rights under Americans for Prosperity Foundation v. Bonta. In that case, the Supreme Court struck a California requirement that charitable organizations that solicit contributions in the state must disclose to the state attorney general the identities of their major donors. The Court applied "exacting scrutiny," and ruled that the disclosure regime wasn't sufficiently tailored to meet the state's asserted interests. Ward claimed that "exacting scrutiny" should apply to the Committee's subpoena, too, as a form of compelled disclosure that interfered with her associational rights.

The Ninth Circuit flatly rejected that argument. The court said that Americans for Prosperity didn't even apply, because unlike the disclosure requirement in that case, the Committee's subpoena was targeted at a particular person, Ward, for particular and relevant information to the Committee's investigation, and because Ward made no allegation that disclosure would lead to any harassment (which would interfere with Ward's associational rights). The court noted that the subpoena sought "to uncover those with whom [Ward] communicated in connection with" the January 6 attack, not members of a political party. It also noted that Ward's theory would allow anyone to "raise a First Amendment objection to any subpoena for records of calls that included discussions of politics--or, presumably, of 'social, economic, religious, [or] cultural' matters. (Narcotics traffickers, or anyone else who might face such subpoenas, would be well advised to make at least a few calls to their preferred political party.)"

The court held that even if Americans for Prosperity's "exacting scrutiny" applied, the subpoena met it. That's because it's "narrowly tailored" to get only the information that the Committee needs, and because the Committee already tried to get this information from Ward when she testified, but she invoked the Fifth.

Judge Ikuta dissented from the Ninth Circuit ruling.

Ward's application to the Court is here; the Committee's opposition is here.

Second Circuit Sends Measles Vaccine Mandate Case Back for Trial

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled that a district court improperly granted summary judgment to the Rockland County Department of Health (NY) and its officials in a claim by parents of minor children that the Department's order excluding unvaccinated children from school violated their right to free exercise of religion.

The ruling means that the district court must hold a trial to resolve disputed facts surrounding the claim before ruling on the free exercise issue.

The case, M.A. v. Rockland County Department of Health, arose when the Department excluded children who were not vaccinated against measles from attending school. The Department issued the order in response to a measles outbreak.

Parents sued, arguing that the order violated free exercise, among other things. The district court ruled that the order was neutral with regard to religion and generally applicable. It applied Smith's rational basis review and granted summary judgment to the district.

The Second Circuit reversed. The court said there were facts in dispute as to the order's neutrality and general applicability that made the case inappropriate for summary judgment.

While a reasonable juror could conclude that [a Department official's] statements [about individuals who oppose vaccines] evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County's purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court's grant of summary judgment on the Plaintiffs' Free Exercise Claim was erroneous.

The case now goes back to the district court for a trial on these questions.

Sixth Circuit Says No Right to Record Police Misconduct Investigations

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit ruled this week that the First Amendment doesn't protect a right to record police misconduct investigations.

The case, Hils v. Davis, arose when the president of the police union sought to record Citizen Complaint Authority interviews of an officer in a police-misconduct investigation. The union president alleged that the Authority wasn't recording the entire interviews, so he sought to fill the gaps. The Authority prevented him from recording, and he sued.

The court examined the "many potential ways to think about this claim," including text and history of the First Amendment, precedent involving press access to public proceedings, government-employee speech, and forum analysis. It rejected the claims under them all. The fundamental problem according to the court: Authority interviews are part of non-public government investigations. The court said that the Authority has a legitimate interest in keeping the interviews under wraps while the investigation is pending, and that interviewees have other ways of voicing their concerns that the Authority is selectively recording the interviews: Say so.

Ninth Circuit Says Pageant Can Exclude Transgender Woman Under Free Speech

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit ruled yesterday that the Miss United States of America Pageant can exclude a transgender woman as a matter of free speech. The court said that the Pageant was inherently expressive, and that requiring it to include a transgender woman would impermissibly interfere with its message.

The case, Green v. Miss United States of America, arose when Anita Noelle Green, a transgender woman, sued the Pageant for excluding her in violation of the Oregon Public Accommodations Act. The Pageant claimed that it declined to include Green because she failed to meet its "natural born female" eligibility criterion, and that the Oregon Act violated the First Amendment insofar as it required the Pageant to include her. The district court ruled for the Pageant, and the Ninth Circuit affirmed (though for a slightly different reason).

The Ninth Circuit held that the Pageant was an expressive activity, protected by free speech, and that forcing it to accept a transgender woman would fundamentally alter its expressive message. The court said that compelling the Pageant to include the woman would amount to a content-based regulation on speech, triggering strict scrutiny--a standard the government couldn't meet. According to the court, that's because eliminating discrimination against LGBTQ individuals isn't a compelling government interest, at least in the speech context.

Judge VanDyke concurred and argued that requiring the Pageant to include Green would also violate the Pageant's First Amendment right to expressive association. (That was the basis of the district court's ruling.)

Judge dissented. She argued that the court should first figure out whether the Oregon Act even applied to the Pageant. But if it did, she argued that Green should prevail: the Oregon law compels neither speech nor association.

Fifth Circuit to Reconsider Whether Officers are Immune for Arresting Journalist for, well, Doing Journalism

The full Fifth Circuit on Friday agreed to rehear a ruling by a three-judge panel that rejected qualified immunity for officers enforcing a Texas law that criminalizes solicitation of information from a public servant with intent "to obtain a benefit." The full court also vacated the panel ruling.

In other words, it's now not clearly unconstitutional to arrest and charge a person for doing journalism in the Fifth Circuit.

The full court's move is just the latest in this long-running case. It started when Priscilla Villarreal, a Facebook journalist, posted a story about a man who committed suicide and another story with the last name of a family involved in a fatal car accident. Villarreal confirmed the names with local authorities. After she posted, she was arrested.

Authorities charged Villarreal with violating Texas law that criminalizes the solicitation of non-public information from a public servant with intent "to obtain a benefit." (Villarreal's "benefit" was gaining more Facebook followers.) The state trial court quite predictably tossed the case, ruling that the Texas law was unconstitutionally vague.

Villarreal then sued authorities in federal court for various violations of her constitutional rights, including First Amendment rights. The district court dismissed the case, but a three-judge panel of the Fifth Circuit reversed. Noting that "[i]t is not a crime to be a journalist," the court said that authorities violated Villarreal's clearly established constitutional rights.

Then on Friday the full Fifth Circuit vacated the panel ruling and agreed to rehear the case. The Friday ruling included no opinions, so we don't really know where the Fifth Circuit's ultimately going with this.

But in the meantime, if you're a journalist in Texas, beware. You apparently have no clearly established constitutional right to do your job.

Drop-Box Monitoring: Voter Intimidation, or Free Speech?

Steven D. Schwinn, University of Illinois Chicago School of Law

A federal district court declined to stop an organization from "monitoring" and photographing voters at Arizona voting drop-box locations, in part because the court said that the organization's activities are protected under the First Amendment. The ruling means that Clean Elections USA and its "monitors" can continue watch voters at the drop-boxes and photograph voters.

The case, Arizona Alliance for Retired Americans v. Clean Elections USA, tests Clean Elections' practice of posting volunteers at voting drop-box locations to monitor voters and take pictures of them and their license plates. According to the court, "[m]any voters have filed official complaints . . . and have even sought out law enforcement assistance." Plaintiffs sued, arguing that the practice violated the Voting Rights Act and the Ku Klux Klan Act. They sought a temporary restraining order to stop the practice.

The court declined. The court held that Clean Elections' practices were not sufficiently intimidating to violate the VRA, despite the fact "that Plaintiffs and many voters are legitimately alarmed by the observers filming at the . . . early voting drop boxes." Alternatively, the court held that it couldn't stop Clean Elections "without violating the First Amendment." (How? Several ways, according to the court. For one, "the Court finds that a reasonable observer could interpret the conduct as conveying some sort of message, regardless of whether the message has any objective merit." For another, there's a "First Amendment right to film matters of public interest." For a third, there's "a right to gather news." And for a fourth, there's a "right to receive information.")

As to the Ku Klux Klan Act, the court held that the plaintiffs failed to show that Clean Elections intended to intimidate or threaten voters (intent being a requirement under the Act).

You Might Find This Interesting: The Dueling First Amendment Claims in the Ninth Circuit's Cancer-Warning Case

Steven D. Schwinn, University of Illinois Chicago School of Law

A Ninth Circuit case over California's cancer-warning requirement raises interesting competing First Amendment claims. In particular, the case tests free-speech rights of businesses against government compelled warnings versus the right-to-access rights of private litigants who sue to enforce those warnings. In the latest chapter, the full Ninth Circuit today leaned in favor of the businesses.

The case, California Chamber of Commerce v. Council for Education and Research on Toxics, tests California's Prop 65, which requires "clear and reasonable warning" on any "chemical known to the state to cause cancer or reproductive toxicity." The law authorizes government officials and private litigants to sue to enforce it.

The California Chamber sought a preliminary injunction to stop the state AG and CERT, a private organization, from suing to enforce Prop 65 as applied to foods and drinks that contain acrylamide. The district court granted the injunction, and a three-judge panel of the Ninth Circuit affirmed. The court affirmed the district court findings that there's a "robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans," that the warning for acrylamide was misleading, and that defendants who used an alternative warning system faced a "heavy litigation burden" in Prop. 65 lawsuits. For these reasons, the court held that Prop. 65 likely violated the commercial-speech rule under Zauderer v. Office of Disciplinary Counsel.

Today the full Ninth Circuit declined to review the ruling. The dissent argued that the panel ruling violated a different, competing First Amendment right, CERT's right to access to justice under the Petition Clause. The dissent claimed that the panel impermissibly expanded the "illegal objective" exception to the right to access to justice. That exception, from a footnote in Bill Johnson's Restaurants, Inc. v. NLRB, says that the NLRB could enjoin suits that have "an objective that is illegal under federal law." For example, the NLRB could halt lawsuits by unions for enforcement of fines that could not lawfully be imposed under the National Labor Relations Act. Today's dissent argued that the earlier panel impermissibly expanded the exception in two ways: (1) it expanded the exception to non-labor cases, beyond how any other circuit court has ruled; and (2) it expanded the exception based only on a prediction (not a final merits determination) that the underlying lawsuit pursued an "illegal objective" (here, a violation of the Zauderer rule, because the earlier panel ruling only held that Prop. 65 was likely to violate free speech).

Well, anyway, I thought this was kinda interesting, and I thought you might, too.

UPDATE: AZ GOP Chair Asks SCOTUS To Block January 6 Committee Subpoena for Cell Phone Records

Steven D. Schwinn, University of Illinois Chicago School of Law

Arizona GOP Chair Kelli Ward filed an Emergency Application for Stay with Justice Kagan (as Ninth Circuit Justice), seeking to halt a subpoena by the January 6 Commission for her cell-phone records.

UPDATE: Justice Kagan issued a stay and ordered the Committee to respond by Friday.

After the Committee subpoenaed Ward's cell-phone provider, Ward filed for an injunction. The district court dismissed her case, and rejected her motion for an injunction pending appeal. A divided panel of the Ninth Circuit affirmed. The two rulings meant that Ward's cell-phone provider would have to comply with the subpoena pending her appeal on the merits.

Ward argued that the subpoena violates her First Amendment associational rights. Here's what the district court said about that, in its denial of Ward's motion for an injunction pending appeal:

[T]he Court finds Plaintiffs have not presented a serious legal question regarding the merits of Plaintiffs' First Amendment claims. Although Plaintiffs discuss at length the application of the exacting scrutiny standard in their briefing and how this case mirrors Republican National Committee v. Pelosi, the Court already found Plaintiffs failed to raise a viable First Amendment claim because of the speculative nature of their alleged harm. Indeed, the Court noted that Plaintiffs "provided no evidence to support their contention that producing the phone numbers associated with this account will chill the associational rights of Plaintffs or the Arizona GOP" and that "'absent objective and articulable facts' otherwise, the Court finds Plaintiffs' arguments constitute 'a subjective fear of future reprisal' that the Ninth Circuit has held as insufficient to show an infringement of associational rights."

Ward contends that the lower courts didn't properly account for Americans for Prosperity v. Bonta. (Bonta struck a state law requiring charitable organizations to disclose their "major donors.") In short, she says that under Bonta, disclosure requirements are subject to heightened scrutiny even if a plaintiff demonstrates no burden. According to Ward, that means that a majority of justices would likely vote to reverse the lower courts. And she says that she meets the other requirements for emergency relief, too.

Justice Kagan could order the Committee to respond, and she could rule on the motion herself, or she could refer it to the entire Court. A ruling could come sooner, or later.

First Circuit Rejects Defamation Claim by Conspiracy Theorist and January 6 Attendee

Steven D. Schwinn, University of Illinois Chicago School of Law

The First Circuit flatly rejected a defamation case filed by a conspiracy theorist and attendee at the January 6 insurrection against an online media outlet. The reason: the defendant's claims about the plaintiff were true, according to her own statements.

The case, Cheng v. Neumann, arose when the online media outlet Beacon published a piece that identified Dana Cheng as "a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6." The Beacon piece also referenced related statements by Cheng and linked to a podcast where she said them. Cheng and her own media group sued for defamation.

The First Circuit flatly rejected the claim. Without even considering "First Amendment principles concerning public figures and the pleading requirements for actual malice," the court held that Cheng had no claim, because the Beacon piece was accurate. The court said that the piece simply placed Cheng at the insurrection, where she in fact was (as she herself said). Contrary to Cheng's claims, the Beacon piece simply did not imply that she was a "full, enthusiastic, and partisan participant in the violence of January 6, 2021" and that she "was present as a violent participant in the January 6 violent assault on the Capitol." The court wrote, "A complaint cannot plausibly allege falsity where, as here, materials incorporated into the complaint refute that very assertion." (Pro tip: If you're going to sue for defamation, try not to admit the truth of the alleged defamatory statements in your own complaint.)

The court also held that other Beacon statements that Cheng's media company "has promoted anti-vaccine misinformation and . . . QAnon" were non-actionable opinions.

Ninth Circuit Says Planned Parenthood Can Collect Damages for Surreptitious Recordings

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit last week ruled that Planned Parenthood could collect compensatory damages from an organization that used illegal means to infiltrate conferences and record Planned Parenthood staff without their consent. The ruling rebuffs the organization's argument that free speech protects against such damages, and reminds under the First Amendment, journalists are just like the rest of us.

The case, Planned Parenthood v. Newman, arose out of anti-choice activists' efforts to infiltrate conferences that Planned Parenthood attended or hosted and to surreptitiously record conversations with Planned Parenthood staff. Planned Parenthood sued for trespass, fraud, conspiracy, breach of contract, unlawful and fraudulent business practices, civil RICO, and various state and federal wiretapping laws. The district court ruled for Planned Parenthood and awarded statutory, compensatory, and punitive damages. The defendants appealed, arguing that compensatory damages violated the First Amendment.

The Ninth Circuit rejected the claim. The court said that even if the defendants were acting as journalists, they're bound by facially constitutional statutes that apply to everyone. In other words, the First Amendment applies the same to journalists; they don't get a free pass just because they're journalists.

[W]e repeat today that journalists must obey laws of general applicability. Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society. None of the laws Appellants violated was aimed specifically at journalists or those holding a particular viewpoint. The two categories of compensatory damages permitted by the district court, infiltration damages and security damages, were awarded by the jury to reimburse Planned Parenthood for losses caused by Appellants' violations of generally applicable laws.

Court Rules in Favor of Praying Football Coach

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court on Monday ruled in Kennedy v. Bremerton School District that a public-school district violated the Free Exercise and Free Speech rights of a football coach who prayed at the 50-yard line after football games, and that the district could not justify its violations under the Establishment Clause.

The ruling is yet another move by the Court to expand free-exercise rights at the expense of anti-establishment concerns, and thus to allow and require religion to play a larger role in public life.

Still, it's not clear exactly how far this ruling will extend. That's because Court took pains to describe the coach's prayers as private religious exercises, contrary to the facts. By one reading, then, the case only allows a public employee to engage in private religious exercise that doesn't impede their job or coerce others to join. But don't expect the Court to limit this case to its facts. This is part of a larger move to expand free-exercise rights and limit the Establishment Clause, and we can expect the Court to use this case as a building block as it moves forward in this effort.

As part of the ruling, the Court abandoned the three-part Establishment Clause test under Lemon v. Kurtzman and replaced it with a "historical practices and understandings" test that "faithfully reflec[ts] the understanding of the Founding Fathers." (The Court acknowledged that this test includes an anti-coercion component, but it didn't specify exactly what coercion means.) It's not at all clear what that test means, or how lower courts will apply it. But again: this is part of the Court's larger move to expand free-exercise rights and limit the Establishment Clause, so we can expect the Court to apply this "historical practices and understandings" test consistently with that trend.

Justice Gorsuch wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh (except the part on the coach's free-speech claim), and Barrett. The Court held that the district violated the Free Exercise and Free Speech Clauses for disciplining the coach for "offer[ing] a quiet personal prayer" at the 50-yard line after football games. It went on to hold that the district couldn't justify its violations under any standard of scrutiny. It said that the district lacked a sufficient anti-establishment concern under its "historical practices and understandings" test, including that the district failed to demonstrate that the coach's prayers were impermissibly coercive.

Justice Sotomayor dissented, joined by Justices Breyer and Kagan. She argued that the Court got the facts wrong--this was no private prayer, but rather a very public exhibition--and that

Today's decision goes beyond merely misreading the record. The Court overruled Lemon v. Kurtzman and calls into question decades of subsequent precedents that it deems "offshoot[s]" of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new "history and tradition" test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state.

High Court Says Boston Discriminated by Religious Viewpoint in Flag Dispute

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today in Shurtleff v. City of Boston that the City violated free speech when it refused to permit an organization to fly a religious flag on one of its flagpoles. The ruling is a victory for the organization. Going forward, however, the City can either permit organizations to fly religious flags as part of its third-party-flag-flying program, redesign the program so that flag-flying amounts to government speech, or drop the program entirely and fly only U.S., state, and city flags.

The case raised religious-freedom issues, but only in the context of viewpoint discrimination (by religion) of free speech, not as separate religion-clause questions. Still, three Justices weighed in on the Establishment Clause, one (Justice Kavanaugh) to promote a neutrality approach, and two (Justices Gorsuch and Thomas) to denounce the Lemon test.

The case arose when Harold Shurtleff, director of an organization called Camp Constitution, requested permission to fly a Christian flag on one of the three flagpoles outside Boston City Hall. Although the City had long permitted various outside organizations to fly their own flags on one of the flagpoles, it declined Shurtleff's request out of fear of violating the Establishment Clause. Shurtleff sued, arguing that the denial violated free speech.

The Court today agreed. Justice Breyer wrote for the Court and first said that an outside flag flying on the city's flagpole did not amount to government speech. (The First Amendment does not restrict the government in its own speech. So if the flagpole amounted to government speech, the City would've prevailed against Shurtleff's free speech claim.) The Court looked to three types of evidence, drawn from Pleasant Grove City v. Summum and Walker v. Texas Div., Sons of Confederate Veterans, Inc., to determine whether the flag was government speech: (1) the history of flag-flying at City Hall; (2) the public's likely perception about whose speech (the City, or the private organization) a flag represented; and (3) the extent to which the City "actively shaped or controlled the expression." The Court held that the evidence went both ways, but "[a]ll told, Boston's lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech."

The Court went on to hold that the City's denial amounted to impermissible viewpoint discrimination, on the basis of religion.

The Court pointed out that the City could change its policies going forward and turn its flagpoles into pure government speech, thus dodging any free-speech restrictions on its program.

The ruling was unanimous, but four Justices added their own views. Justice Kavanaugh, writing only for himself, argued that the whole dispute "arose only because of a government official's mistaken understanding of the Establishment Clause." He wrote: "As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."

Justice Alito, joined by Justices Thomas and Gorsuch, argued that the Court's three-factor test for determining when speech is government speech was wrong. He pushed for this test: "government speech occurs if--but only if--a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech."

Finally, Justice Gorsuch, joined by Justice Thomas, took aim at the Lemon test. He said that Boston's conclusion that flying Camp Constitution's Christian flag would violate the Establishment Clause rested on this flawed--and "abandoned"--test.