Tuesday, June 28, 2022

Court Rules in Favor of Praying Football Coach

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.

June 28, 2022 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, May 2, 2022

High Court Says Boston Discriminated by Religious Viewpoint in Flag Dispute

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.

May 2, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, March 24, 2022

High Court Rebuffs Free Speech Claim of Censured Official

The Supreme Court ruled today that the Board of Trustees of the Houston Community College System did not violate the First Amendment when it censured a member for misconduct. The ruling is narrow: it only means that an elected body can censure (without further punishment) a member of the body (but not necessarily a non-member) without violating free speech.

The case, Houston Community College System v. Wilson, arose when the HCC Board censured member David Wilson for various antics that were "not consistent with the best interests of the College" and "not only inappropriate, but reprehensible." Wilson sued, arguing that the censure and related actions by the Board violated the First Amendment. The Court only addressed the censure, however, and not related actions.

Justice Gorsuch wrote for a unanimous Court that legislative bodies have a long tradition of censuring members, and that there's "little reason to think the First Amendment was designed or commonly understood to upend this practice." Moreover, the particular facts of this case counseled against Wilson's claim. For one, he was an elected official, and "[i]n this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers--and to continue exercising their free speech rights when the criticism comes." For another, the only adverse action that Wilson suffered was . . . free speech by his colleagues on the Board. "The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy." But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same."

March 24, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, November 10, 2021

Court Hears Arguments in Austin Sign Case

The Supreme Court will hear arguments this morning in a case testing Austin's sign code, which allows digitization of on-premises signs, but not of off-premises signs. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Issue

Does Austin’s city code, which distinguishes between on-premises signs (which may be digitized) and off-premises signs (which may not), constitute an impermissible content-based regulation of speech, in violation of the First Amendment?

Case at a Glance

The Austin Sign Code allows sign owners to digitize their on-premises signs (those that are located at the same site as the business or activity to which they relate). But it forbids owners from digitizing their off-premises signs (those that are not located at the same site as the business or activity to which they relate). Applying those regulations, the City denied permission to two corporations to digitize their off-premises signs.

INTRODUCTION

Government speech regulations that are based on the content of the speech are subject to strict scrutiny, and are presumptively invalid, under the First Amendment. But it’s not always clear when a government regulation is content based. The Court sought to clarify this in Reed v. Town of Gilbert, 576 U.S. 155 (2015). In Reed, the Court held that a government speech regulation is based on content if the plain text of the regulation discriminates by the content of speech, or if the government cannot justify the regulation without reference to the content. Applying the first part of test, the Fifth Circuit held that Austin’s sign regulations were content based, because a person would have to read the sign (and its content) in order to determine whether the sign was on premises or off premises.

ISSUE

Is Austin’s distinction between on-premises signs and off-premises signs facially unconstitutional under Reed?

FACTS

The City of Austin regulates signs within its jurisdiction based on their location. Under City regulations, the owner of an “on-premises” sign—a sign that advertises a business or activity that is located on the site where the sign is located—can digitize the sign. But the owner of an “off-premises” sign—a sign that “advertises a business, person, activity, good, products, or services not located on the site where the sign is installed”—cannot. Austin says that these rules protect the aesthetic value of the City and protect public safety.

In April and June 2017, Reagan National Advertising of Austin and Lamar Advantage Outdoor Company filed separate applications to digitize their off-premises billboards. The City denied the applications, citing its sign policy.

Reagan sued the City in state court. Reagan argued that Austin’s sign policy amounted to content-based discrimination of speech, and that it was facially unconstitutional. Austin removed the case to federal court, based on the federal constitutional question.

Then, in August 2017, Austin amended its Sign Code. The amended Code defines an “off-premise sign” as “as sign that displays any message directing attention to a business, product, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located.” The regulations define an “on-premise sign” as “a sign that is not an off-premise sign.”

The amended Code also includes a new provision, dealing with non-commercial signs. It reads:

(A) Signs containing noncommercial speech are permitted anywhere that signs regulated by this chapter are permitted, subject to the same regulations applicable to the type of sign used to display the noncommercial message. No provision of this chapter prohibits an ideological, political, or other noncommercial message on a sign otherwise allowed and lawfully displayed under this chapter.

(B) The owner of any sign allowed and lawfully displayed under this chapter may substitute noncommercial speech in lieu of any other commercial or noncommercial speech, with no permit or other approval required from the City solely for the substitution of copy.

(C) This section does not authorize the substitution of an off-premise commercial message in place of a noncommercial or on-premise commercial message.

In October 2017, Lamar joined Reagan’s suit as a plaintiff. The district court ruled for the City, but the United States Court of Appeals for the Fifth Circuit reversed. This appeal followed.

CASE ANALYSIS

The Court has long held that government regulations of speech that discriminate based on the content of the speech are subject to strict scrutiny and presumptively invalid. But determining whether a speech regulation discriminates based on content turns out to be much harder than it would seem. For decades, lower courts struggled with this.

In particular, in order to assess the question, lower courts before 2015 applied two different, and sometimes inconsistent, tests to determine whether a law restricted speech based on its content. One test looked to the plain text of a law or regulation and asked whether it discriminated on its face, based on the content or subject-matter of the speech. The other test looked to the purpose of the law or regulation and asked whether the government could justify its restriction “without reference to the content of [the] speech.” Hill v. Colorado, 530 U.S. 703 (2000).

Then, in 2015, the Court sought to clarify the confusion. The Court in Reed v. Town of Gilbert 135 S. Ct. 2218 (2015), adopted a two-part test to determine when a speech regulation is based on content. First, courts must read the text of the regulation to determine whether it distinguishes between speech based on its content, or message. Under Reed, a speech regulation that discriminates based on content on its face is automatically subject to strict scrutiny and presumptively invalid. This holds even if the regulation is based on a content-neutral purpose.

Next, if the facial text of the regulation is content-neutral, courts must examine the purpose of the regulation. If the regulation “cannot be ‘justified without reference to the content of the regulated speech,’” or if the government adopted the regulation “because of disagreement with the message [the speech] conveys,” then the court must treat the regulation as content based. Such a regulation is subject to strict scrutiny, and it is presumptively invalid.

The parties frame their arguments around Reed.

Austin argues first that its distinction between on-premises signs and off-premises signs is content neutral on its face. The City says that its distinction draws on a long, well recognized, and validated (even “ubiquitous”) tradition in zoning and sign-code practices, in which all levels of government distinguish in different ways between on-premises and off-premises signs. It claims that this traditional distinction is based upon the substantial government interests in regulating off-premises signs (like highway billboards), which pose especial traffic, safety, and even aesthetic concerns. Austin contents that digital billboards only add to those concerns. On the other hand, the City claims that on-premises signs are generally smaller, less distracting, and well-integrated into the existing property; it says that they also “implicate the compelling interest of businesses and property owners to advertise their goods and services on their own property.”

Austin contends that laws and regulations distinguishing between off-premises and on-premises signs, including its own, are content neutral. According to the City, that’s because the distinction is based on a sign’s location, not its content, subject, or viewpoint. It says that its sign regulation “singl[es] out no subject or viewpoint as a regulatory target.”

Austin argues next that the Fifth Circuit wrongly applied Reed in striking this provision of its Sign Code. The City claims that the lower court interpreted Reed to require a “read the sign” test, where a sign regulation is content-based if a person must read the sign itself in order to know if the regulation applies. But Austin contends that Reed does not support this test. It points to Justice Samuel Alito’s concurrence in Reed, joined by Justices Anthony Kennedy and Sonia Sotomayor, which provided examples of “some rules that would not be content based,” including “[r]ules distinguishing between signs with fixed messages and electronic signs with messages that change” and “[r]ules distinguishing between on-premises and off-premises signs”—exactly the rules at issue in this case.

Moreover, Austin contends that Reed’s reasoning itself refutes the Fifth Circuit’s read-the-sign test. The City claims that Reed relied on cases holding that laws were content neutral even when a person would have to read the sign to determine the law’s content-neutrality. Austin claims that Court cases instead turn on whether speech regulations “single out topics or subjects for distinct regulations” and thus “favor[] or disfavor[] particular topics or viewpoints.” The City says that the Fifth Circuit’s rule, which “would subject virtually all distinctions in sign regulation to strict scrutiny,” would perversely lead to less speech, because government officials, to avoid this, “may regulate with a far broader brush, thus suppressing more speech.” Alternatively, the City claims, courts would dilute strict scrutiny in order to uphold sensible laws (“like house-number identifications or event-related sign regulation”), thus undermining the law and creating further uncertainty.

Finally, Austin argues that its sign regulations are subject to intermediate scrutiny, and that they pass. It claims that because its regulations are content neutral, the proper test is intermediate scrutiny, not strict scrutiny. And it says that its regulations are sufficiently tailored to meet its important interests in safety and aesthetics. Alternatively, the City claims that because it validly rejected the plaintiffs’ requests to digitize their signs under the commercial-speech doctrine (which also uses intermediate scrutiny), the plaintiffs can only argue that the regulations are unconstitutionally overbroad (with respect to commercial speech). Austin says that the plaintiffs never raised this argument, and the evidence doesn’t support it.

The government weighs in as amicus to support Austin, emphasizing many of the same points. In particular, the government echoes the City’s arguments that its regulations are content neutral, and that they easily satisfy intermediate scrutiny. The government also claims that any “constitutional infirmities” in the regulations do not justify striking the regulations on their face.

The plaintiffs counter that Austin’s regulations are content based on their face, because they “depend on the communicative content of the signs—specifically whether they advertise activities on the premises . . . .” They point to the language of the regulation defining off-premises signs: those signs that “advertise a business, person, activity, goods, products, or services not located on the site where the sign is installed.” They say that this definition turns on a sign’s content. Moreover, the plaintiffs contend that the regulations’ consideration of the location of the signs (a concededly content-neutral consideration) does not save them; instead, it merely makes the regulations a content-based restriction on speech, not an all-out ban. According to the plaintiffs, the regulations still turn on the content of a sign.

The plaintiffs assert that this interpretation reflects the correct reading of Reed. That case, they say, “made clear that a law may be subject to strict scrutiny either because it draws facial distinctions based on content or because it is motivated by an impermissible content-based purpose.” The plaintiffs contend that Austin’s regulations fall squarely into the first category. They claim that Justice Alito’s examples are not to the contrary: a regulation that defines “off-premises” by its distance from a building, for example, is still content neutral; but a regulation that also depends on a sign’s content (as here) is content based. Contrary to the City, the plaintiffs contend that this is consistent with the Court’s prior opinions, and will not lead to courts striking laws that regulate speech based on its medium. They write, “A regulation is content-based when it depends on the content of the message expressed through a particular medium, not when it regulates the medium itself.”

Having established that strict scrutiny applies, the plaintiffs contend that Austin’s regulations fail. They say that even assuming that Austin’s interests in safety and protecting aesthetics are compelling government interests, the regulations are not narrowly tailored, because Austin “has provided no reason to think that digitizing the limited number of . . . off-premises signs would be more problematic than the unrestricted digitization of on-premises signs, which the [City] currently permits.” In other words, the plaintiffs say that Austin’s interests apply equally to on-premises signs, but Austin does not similarly restrict on-premises signs. The plaintiffs assert, contrary to the City, that this does not mean that all other premises regulations must fail, only that they cannot distinguish based on the content of the sign (as Austin’s do).

The plaintiffs argue next that even if the Court were to apply intermediate scrutiny, Austin’s regulations would fail. They say that the City has better tailored ways to achieve its interests in safety and aesthetics. For example, they contend that the City could simply “limit[] the frequency of message changes for both on-premises and off-premises signs” in order to meet the City’s concern about “periodically changing” off-premises signs that could threaten safety and aesthetics.

Finally, the plaintiffs argue that the City is wrong to say that their claims fail under the commercial-speech doctrine. The plaintiffs contend that their signs contain both commercial and non-commercial speech, and that the challenged regulations distinguish between off-premises and on-premises signs for both commercial speech and non-commercial speech. Based on these two facts, the plaintiffs assert that the commercial-speech test simply does not apply. In any event, for the same reasons as above, the plaintiffs claim that the regulations fail the commercial-speech test, intermediate scrutiny.

SIGNIFICANCE

While Reed sought to clarify the approach that courts must use in determining whether a government speech regulation is content based, the case instead generated mass confusion among the lower courts and often led to results that are inconsistent with the Court’s own pre-Reed precedents.

As most relevant here, lower courts have adopted very different approaches to Reed’s first question, whether the government regulation is content based on its face. For example, while the Fifth Circuit has adopted a broad understanding of Reed, reflected in its read-the-sign approach, other circuits have adopted narrower understandings that might tolerate regulations like Austin’s.

The confusion and uncertainty around Reed maybe shouldn’t surprise us. After all, the Reed Court itself seemed a little uncertain about its ruling. That’s why Justice Alito wrote his concurrence, joined by Justices Kennedy and Sotomayor, providing a list of longstanding and traditional content-neutral speech regulations that Reed would not overturn. Among these, Justice Alito explicitly included premises regulations, like Austin’s. The fact that the Fifth Circuit expressly distinguished Austin’s actual premises regulations from Justice Alito’s idealized premises regulations only further illustrates the confusion over Reed’s first question.

This case will (hopefully) provide some clarity and guidance. Still, this is no easy feat. The Court can readily see how a fixed, determinate rule, like the Fifth Circuit’s read-the-sign rule, may give courts clear guidance, but could also apply in an overly rigid way to strike speech regulations that don’t really have anything to do with the content of the speech. At the same time, the Court also understands that a more flexible rule—for example, one that looks to the purpose behind a government speech regulation—may more accurately reveal a government’s intent to discriminate by content, but is also much harder to measure with certainty, and may invite governments to implement content-based regulations under the guise of facial content neutrality.

Some of the amici offer suggestions. For example, the Knight Center and Professor Genevieve Lakier suggest that the Court adopt a more nuanced approach, in the form of a multi-factor test. Under this approach, courts would determine whether a regulation is content based by looking at the two questions in Reed, along with several other considerations that can help reveal when a government regulation actually discriminates by content. Look for the Court to road test these ideas, and others, at oral argument, as it seeks to clarify Reed and bring determinacy to the doctrine.

November 10, 2021 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Tuesday, November 2, 2021

Argument Preview: Does an Elected Body Violate Free Speech When it Censures a Member?

The Supreme Court will hear oral arguments this morning in Houston Community College System v. Wilson, the case testing whether an elected body violates the First Amendment when it censures one of its members for the member's critical and disruptive public speech. Here's my Preview, from the ABA Preview of United States Supreme Court cases, with permission:

Case at a Glance

In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. The Board adopted a resolution that censured Wilson and limited certain privileges that he enjoyed as a member. Wilson sued, arguing that his censure violated free speech.

INTRODUCTION

Elected legislative bodies in the United States have long exercised the power to censure members for their inappropriate or disruptive behavior or speech. As a general matter, bare censure does not violate free speech, because it does not chill or restrict the censured member’s speech. But Wilson contends that the Board impermissibly censured him for speech “outside the legislative sphere,” and that his censure impermissibly included punishment, because it limited certain privileges that he enjoyed as a member.

ISSUE

Can an elected legislative body, consistent with the First Amendment, censure a member for speech outside the legislative sphere and with restrictions on legislative privileges?

FACTS

In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. Wilson served as one of nine trustees on the Board, each of whom represented a single-member district for a six-year term and served without compensation.

During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. For example, he arranged robocalls and spoke out on a local radio station in opposition to the Board’s decision to fund a campus in Qatar. He sued HCC in state court after the Board allowed a member to vote on a measure by videoconference. He separately sued HCC and the trustees in state court after the Board allegedly excluded him from an executive session. (In all, Wilson filed four lawsuits against HCC, costing HCC nearly $300,000 in legal fees.) And he hired a private investigator to confirm that one of the trustees actually resided in the district she represented, and to investigate HCC itself. He published his various grievances on a website, where he referred to his fellow trustees and HCC by name.

On January 18, 2018, the Board adopted a resolution censuring Wilson for his behavior. The resolution said that Wilson acted in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The resolution noted that the censure was the “highest level of sanction available” again Wilson.

The resolution instructed Wilson to “immediately cease and desist from all inappropriate conduct.” It further provided that Wilson was “ineligible for election to Board officer positions for the 2018 calendar year,” that he was “ineligible for reimbursement for any College-related travel” for the 2017-2018 fiscal year, and that he would have to seek Board approval to gain access to any funds in his Board “community affairs” account. It warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Wilson then amended his first state-court complaint to include claims against HCC and the trustees for violating his free-speech rights under the First Amendment. He sought $10,000 in damages for mental anguish, $10,000 in punitive damages, and attorney’s fees. HCC and the trustees removed the case to federal court, on the ground that the case now involved a federal question.

The district court ruled that Wilson could not demonstrate an actual injury, and dismissed the case for lack of standing. The U.S. Court of Appeals for the Fifth Circuit reversed and remanded the case for further proceedings. The court wrote, based on circuit precedent, that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim . . . .” Wilson v. Houston Community College System, 955 F.3d 490 (5th Cir. 2020).

In the meantime, Wilson resigned his seat for HCC’s District 2, and ran as a candidate for HCC’s District 1. He lost in a run-off election.

This appeal followed.

CASE ANALYSIS

As a general matter, the First Amendment protects speech against government action that restricts, punishes, or chills speech. But in general, it does not protect action that merely responds to speech with, well, more speech.

Applying those general principles, some courts have held that an elected body’s mere reprimand of a member, or other members’ mere reprimand of a member, without more, does not violate the First Amendment. That’s because the legislative body or its members simply responded to another member’s speech with more speech of its own (the reprimand). The Fifth Circuit, in contrast, held that the Board’s mere reprimand of Wilson through censure may violate the First Amendment. (Remember, the Fifth Circuit did not rule on the merits; it only remanded the case for further proceedings on Wilson’s First Amendment claim.)

The parties therefore dispute whether the Board’s censure of Wilson (with or without the censure’s restrictions on his privileges as a member) was punitive. If it was, then the First Amendment applies; if not, it doesn’t.

But Wilson adds a twist. Distinguishing the circuit courts that have held that mere reprimand through censure, without more, does not violate the First Amendment, Wilson adds that an elected body may merely censure a member for speech “within the legislative sphere,” that is, while conducting legislative business, but not for speech outside that sphere.

Against this backdrop, HCC argues first that the Board’s censure resolution amounted to permissible “peer criticism” that “may be voiced by other members individually or by a majority speaking for the body as a whole.” Either way, HCC contends that its resolution did not suppress or chill Wilson’s speech, “compel him to espouse the majority’s views,” or impede his performance of his job. (HCC’s argument hinges on the theory that the Board’s censure resolution was a mere reprimand, without punishment or sanction.) It therefore did not violate the First Amendment.

HCC argues next that its censure resolution is well supported by historical tradition, going back to the Founding, and even before. It says that the English parliament censured members as early as the sixteenth century for speech outside official parliamentary proceedings, often in ways that included discipline beyond bare censure; that this power migrated to colonial assemblies, and, later, state legislatures and Congress; and that censure in response to members’ speech is widely practiced today among local elected bodies.

HCC argues that recognizing a First Amendment claim in response to a bare censure resolution (as the Fifth Circuit did in this case) “would perversely halt that speech-rich local practice.” According to HCC, that’s because a “legislative censure is important government counter-speech on a matter of public concern.” In other words, censure adds to aggregate valuable speech in a public debate; it doesn’t impede speech. Because “the Constitution safeguards . . . the right of both sides to be heard,” HCC contends that disputes between elected members and a legislative body should be resolved by the voters.

The government weighs in as amicus to elaborate on the history and tradition of censure resolutions; to put a finer point on the argument that an elected body’s censure resolution amounts to government speech; and to emphasize that the Court need not address tougher issues outside the Question Presented (for example, when an elected body disciplines a member for speech beyond bare censure). (The government seems to go farther than HCC, in that it argues that an elected body can even discipline or punish a member, including by censure.)

Wilson counters first by conceding that a legislative body may censure a member’s speech “within the legislative sphere,” that is, on the chamber floor, in legislative hearings, or in legislative reports, for example. But he says that a legislative body may not censure or otherwise punish a member’s speech “outside the legislative sphere.” He claims, contrary to HCC, that mere censure, without more, is punitive, and thus an impermissible response to speech outside the legislative sphere. He claims that historical evidence, modern precedents, and contemporary practice all confirm this. He points to examples from the Founding Era, more recent court rulings (including Supreme Court rulings that have “held in other contexts that formal censures can violate the First Amendment”), and contemporary authorities on parliamentary procedure. He writes that “[m]any such bylaws expressly state that censures may not be entered against members in response to their speech.”

In any event, Wilson argues that the Board’s censure resolution here went farther than mere censure. He points out that it included revoking and limiting certain of his “privileges of office,” including barring his access to reimbursements for college-related travel and restricting his access to community affairs funds. He also points out that the censure expressly “directed” him “to immediately cease and desist” his outside activities against the Board or face “further disciplinary action.” He contends that because his censure was “plainly punitive,” it violated the First Amendment, “[w]hatever one might say about formal censures as a general matter.”

Wilson argues that the censure violates his free-speech rights under Bond v. Floyd. 385 U.S. 116 (1966). The Court in that case held that the Georgia legislature violated the First Amendment when it excluded a member for his outspoken opposition to the Vietnam War. Wilson claims that while his censure falls short of exclusion, his censure nevertheless “included practical disabilities intended to prevent Wilson from performing his official functions”—just like exclusion. “Under Bond, the censure therefore violated the First Amendment.”

Wilson contends that his censure was not protected government speech. He says that in contrast to ordinary government speech (which might include a mere position statement, for example), his censure was punitive. He claims that if censures were government speech, “there would be nothing to stop elective bodies (or any governmental agency) from censuring journalists for critical coverage of the government, including (so it would seem) revoking privileges like press passes in response.”

Wilson argues that his punitive censure cuts against the values of the First Amendment, because it impedes speech (and doesn’t enhance aggregate speech). He claims that Board members had numerous other ways to express their opposition to his speech (and thus add to aggregate speech, consistent with the First Amendment). But he says that his punitive censure only serves to shut down his speech. He asserts that if his censure stands, “elective assemblies [would be empowered] to use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”

Finally, Wilson emphasizes that a ruling in his favor would only disallow “a very narrow range of official censures.” According to Wilson, that’s because censures are “shockingly rare in the United States,” and almost always in response to speech “within the legislative sphere.” He says that a ruling in his favor would only disallow censures outside the legislative sphere, which are already “almost unheard of.”

SIGNIFICANCE

The Court has never squarely addressed whether an elected body’s censure of a member implicates or violates the First Amendment. Some lower courts have, however, and there’s some tension, or even conflict, in how they have addressed the question. At least three federal circuit courts (the Fourth, Sixth, and Tenth Circuits) and the Vermont State Supreme Court have all ruled that censure does not violate the First Amendment. The Fifth Circuit ruled to the contrary.

In sorting this out, look for the Court to consider several factors. First, the Court will likely consider whether an elected body’s mere reprimand, standing alone, is sufficient punishment to trigger First Amendment scrutiny. Next, if not, the Court will need to consider how much punishment or retaliatory action a censure resolution must include in order to trigger the First Amendment. In particular, the Court will have to consider whether an elected body’s restrictions on a member’s legislative privileges, without more, are sufficient punishment. Third, the Court may consider any differences between an elected body’s formal censure resolution and other members’ less formal reprimands (which are constitutionally protected), and whether those differences are constitutionally significant. Finally, the Court will consider Wilson’s claim that censure is valid for speech “within the legislative sphere,” but not outside it.

The Court’s approach may also depend on how it understands censure. If it understands censure as adding to aggregate speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to promote more speech, not less. If it understands censure as detracting from aggregate speech, however, as Wilson argues, it will more likely scrutinize censure. In a different dimension, if it understands censure as government speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to allow the government to say whatever it likes. If it understands censure as government punishment, however, as Wilson argues, it will more likely scrutinize censure.

Finally, and most importantly, the case could impact the censure practices of local governments across the country. HCC argues in its cert. petition that thousands of local governments authorize censure of members, and that “it is frequently used” for a range of member speech that “is quite broad.”

November 2, 2021 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Friday, August 27, 2021

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

August 27, 2021 in Cases and Case Materials, Due Process (Substantive), First Amendment, Fourteenth Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0)

Saturday, August 21, 2021

Tenth Circuit Strikes Portions of Kansas Farm Animal Protection Act under First Amendment

The Tenth Circuit ruled that three part of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act violated free speech. The ruling enjoins the government from enforcing those provisions.

The case, Animal Legal Defense Fund v. Kelly, tests three part of the Act, which, as a general matter criminalizes certain actions directed at an animal facility without effective consent of the owner of the facility and with intent to damage the enterprise of the facility. ALDF sued, arguing that the Act violated free speech, because ALDF investigators sometimes lie about their association with ALDF in order to get jobs at the facilities under cover, and would therefore violate the Act.

The Tenth Circuit agreed. The court examined three parts of the Act: subsection (b), which forbids acquiring or exercising control over an animal facility without effective consent of the owner and with intent to damage the enterprise; subsection (c), which forbids recording, attempting to record, or trespassing to record on an animal facility's property without effective consent of the owner and with intent to damage the enterprise; and subsection (d), which forbids trespassing on an animal facility without effective consent of the owner and with intent to damage the enterprise. The court ruled that these were viewpoint-based restrictions on speech (because they each require the "intent to damage the enterprise," as opposed, for example, to laud the enterprise), and subject to strict scrutiny. The court said that Kansas didn't even bother to try to justify the provisions under strict scrutiny, and therefore they failed.

Judge Hartz dissented, arguing, among other things, that property owners have a right to exclude that the majority's approach ignores; "that a fraudulently obtained consent to enter another's property, particular the type of entry desired by Plaintiffs, is not protected by the First Amendment"; and that the court should've excised any offending elements of the Act rather than ruling them unconstitutional.

August 21, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Tosses OAN's Defamation Suit Against Rachel Maddow

The Ninth Circuit ruled this week that OAN failed to state a case for defamation against MSNBC host Rachel Maddow for stating that OAN "really literally is paid Russian propaganda." The ruling ends OAN's defamation suit.

The case, Herring Networks, Inc. v. Maddow, arose when Maddow ran a segment on OAN reporter Kristen Rouz, who, according to a story in the Daily Beast, also wrote stories for pay for Sputnik. At one point during the longer segment, Maddow said, "In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda." Herring then sued for defamation, and Maddow moved to strike the complaint under California's anti-SLAPP statute.

The Ninth Circuit ruled for Maddow. The court examined the broad context of the statement, the limited context of the statute, and the ability to determine the truth or falsity of the statement and concluded that it simply wasn't a statement of fact that could support a defamation claim:

In sum, two of the factors outlined in [circuit precedent]--the general context and the specific context of the contested statement--negate the impression that the statement is an assertion of objective fact. While the third factor [the ability to determine the truth or falsity of the statement] tilts in the other direction, we conclude that Maddow's contested statement fits within "the 'rhetorical hyperbole' [that] has traditionally added much to the discourse of our Nation."

August 21, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.

The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.

The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.

August 21, 2021 in Association, Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 20, 2021

Fifth Circuit Strikes Fee for Latex Clubs

The Fifth Circuit ruled that a $5 per person fee for "latex clubs" in Texas violated free speech and due process. The ruling means that state authorities can't enforce the fee against sexually oriented clubs where dancers wear opaque latex breast coverings and shorts.

The case, Texas Entertainment Association v. Hegar, arose when Texas enacted a "sexually oriented business" fee that imposed a $5 charge per customer on businesses that serve alcohol in the presence of nude entertainment. In response, some sexually oriented businesses required dancers to wear opaque latex breast coverings and shorts. The gambit allowed these "latex clubs" to dodge the $5 fee for a good eight years, until the Texas comptroller issued a rule that excluded latex from the definition of "clothing" under the law. The rule meant that latex clubs now had to pay the fee.

The TEA, which represents sexually oriented businesses in Texas, sued, arguing that the comptroller's move violated free speech, due process, and equal protection. The Fifth Circuit agreed, except as to equal protection.

The court ruled that the comptroller's redefinition was a content-based restriction on speech (and not content-neutral), because the comptroller produced no evidence that the redefinition served any non-speech purpose (like reducing the secondary effects of latex clubs). (The court declined to shoehorn the state's initial asserted interest behind the $5 fee--reducing secondary effects--into the comptroller's decision, more than eight years later, and based on no evidence.) The court applied strict scrutiny, and ruled that the comptroller's action failed.

The court also ruled that the comptroller's action violated due process. The court said that the comptroller previously declined to impose the fee on latex clubs--indeed, that the comptroller told one club that "everything was good"--and upset the latex clubs' "settled expectation that they would not be subject to" the fee.

Finally, the court ruled that the action didn't violate equal protection. The court said that latex clubs were more like nude dancing establishments (which were already subject to the fee), and not like sports bars (which were not). Because the move did not treat similarly situated businesses differently (latex clubs aren't similar to sports bars), the court ruled that it didn't violate equal protection.

August 20, 2021 in Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, August 19, 2021

Sixth Circuit Upholds Tenured Prof's Termination, Rebuffs Due Process, First Amendment Claims

The Sixth Circuit ruled that the University of Louisville did not violate procedural due process or free speech when it disciplined and later terminated a tenured professor and department chair for signing an unauthorized lease on behalf of the department and meeting with private equity firms interested in buying or financing the department.

Dr. Henry J. Kaplan, tenured prof and Chair of UofL's Department of Ophthalmology and Visual Sciences, sued the school after it fired him for signing the lease and meeting with potential investors. Kaplan argued that his termination violated due process, his reputation and career interests, and academic freedom. The court rejected each claim.

As to due process, the court ruled that Kaplan didn't have a property interest in his administrative position (chair of the department), so due process didn't apply. It ruled that the school's process for terminating his tenured professorship satisfied due process, because the school notified Kaplan of the issues prior to any disciplinary action; it terminated him pursuant to school rules that allow the school to terminate a faculty member for "[n]eglect of or refusal to perform one's duty" that "substantially impairs [their] effectiveness as a faculty member"; it conducted a post-termination hearing (a "Cadillac plan of due process"); and an alternative pre-deprivation hearing wouldn't have been any more protective of Kaplan's property right in his faculty position.

The court held that Kaplan forfeited any reputational-interest claim because he didn't request a name-clearing hearing. It ruled that the school didn't violate his career interest, because it didn't prevent Kaplan from seeking future employment in his chosen career.

Finally, the court ruled that Kaplan misfired on his academic freedom claim. "Simply put, UofL suspended Kaplan because of his attempts to circumvent UofL's cost-control measures and not because of any ideas he advocated or research he conducted."

August 19, 2021 in Cases and Case Materials, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Procedural Due Process, Speech | Permalink | Comments (0)

Saturday, August 14, 2021

Court Withholds Access to Some Videos, Grants Access to Others, of January 6 Insurrection

Judge Paul Friedman (D.D.C.) ruled yesterday that a media organization had a First Amendment right to some of the videos that the Justice Department submitted in support of detaining a January 6 insurrectionist, but not others.

The case, In re: Application for Access to Video Exhibits, involves 11 videos that DOJ submitted in support of detaining a defendant who is charged in connection with the insurrection. Eight of these are not sealed; three are sealed.

The court ruled that the media organization had a First Amendment right to all eight unsealed videos, and to one of the sealed videos, because it had already been released.

As to the two other sealed videos, the court ruled that DOJ overcame "the presumption in favor of public access," because DOJ demonstrated a compelling interest that could be harmed if they were released (security at the Capitol, because the footage could "result in the layout, vulnerabilities, and security weaknesses of the U.S. Capitol being collected, exposed, and passed on to those who might wish to attack the Capitol again"), and because there's no alternative to non-disclosure of the videos that would protect this interest.

The court also ruled that the organization didn't have a right to these videos under the common law.

August 14, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 13, 2021

Court Declines to Halt Nunes's Defamation Claim Against Washington Post

Judge Carl Nichols (D.D.C.) this week denied the Washington Post's motion to dismiss a defamation lawsuit by House Permanent Select Committee on Intelligence Ranking Member Devin Nunes. The ruling means that this portion of Nunes's case can move forward.

The case, Nunes v. WP Company, arose out of Washington Post reporting on Nunes's activities related to former President Trump's claims that President Obama ordered a wiretap of Trump Tower during the 2020 presidential campaign. The Post reported that Nunes "was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower," and that Nunes saw the documents "reportedly late at night, earning the episode the nickname 'the midnight run.'"

But Nunes said around the time that there was no evidence of wiretaps of Trump Tower, even as he also expressed "concern[] that other surveillance activities were used against President Trump and his associates," and thought it was "very possible" that Trump and others might have been caught up in surveillance directed at others.

Nunes complained to the Post and, that same day, sued. The Post then printed revisions, saying that the timing of Nunes's visit to the White House was "unclear," and that Nunes himself never said that Trump Tower was wiretapped (instead, Trump did). But the revisions didn't take back the "baseless claims" language. Nunes amended his complaint to incorporate the revisions.

The Post moved to dismiss the complaint on the ground that its article was neither false nor defamatory, and that Nunes failed to sufficiently allege that the Post published the article with actual malice, among other reasons.

The court denied the motion. The court wrote that even the Post's revision said that Nunes made "baseless" claims, when he didn't: He only claimed that intelligence activities touched on the Trump campaign (of which there was evidence by November 2020, so this wasn't "baseless"), not that Trump Tower was wiretapped (which wasn't true, but Nunes didn't say it). Moreover, the court said that the Post's false claim could also be defamatory:

Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims.

The court ruled that Nunes sufficiently alleged actual malice, or reckless disregard of the truth, because the Post itself had previously reported that Nunes denied Trump's claims about a wiretap at Trump Tower.

The court noted, however, that Nunes now has "to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published statements with actual malice."

August 13, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, August 12, 2021

District Court Allows Dominion Defamation Suit to Move Forward

Judge Carl Nichols (D.D.C.) denied the motions of Sidney Powell, Rudolph Guiliani, and Mike Lindell and My Pillow to dismiss Dominion Voting Systems's lawsuits against them for defamation. The ruling is only preliminary; it only means that Dominion sufficiently pleaded defamation to withstand the defendants' motions to dismiss, not that Dominion prevails on the merits. Still, it doesn't bode well for the defendants.

The case grew out of the defendants' many, er, inventive and unsubstantiated claims about Dominion Voting Systems's role in the 2020 presidential election. In particular, all three made public claims--again, many of them, and utterly unsubstantiated--to the effect that Dominion threw the election to President Biden.

Dominion sued, arguing that the defendants defamed the corporation, among other things. The defendants separately filed motions to dismiss, arguing that Dominion's defamation claims failed on their face, also among other things. The cases were designated as "related," and, in a consolidated ruling, the court flatly rejected the defendants' claims.

In particular, the court rejected Powell's argument that her statements couldn't have been defamatory, because they were either "opinions" or "legal theories." The court parsed just a handful of her statements and easily concluded that they were neither opinion nor legal theories.

The court also rejected Powell's and My Pillow's arguments that Dominion failed to allege "actual malice." Again, the court parsed just a few of their outlandish statements (along with the fabricated evidence, and lack of evidence, to support them) and easily concluded that Dominion met this standard in its complaint.

The court rejected Guiliani's arguments in support of his motion to dismiss on different grounds. (Guiliani didn't argue that Dominion failed to sufficiently allege its defamation claim against him.)

August 12, 2021 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, July 2, 2021

Court Strikes California's Tax-Exempt Disclosure Requirement

The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.

The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.

The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.

Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.

The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:

There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .

Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."

The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.

The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."

Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.

Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.

In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.

She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."

July 2, 2021 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Thursday, June 17, 2021

Court Says Philly's Anti-Discrimination Contract Provision Violates Free Exercise, but Keeps Smith on Books

The Supreme Court ruled today that the city of Philadelphia violated Catholic Social Service's free exercise rights when it terminated CSS's foster-care contract pursuant to a clause that prohibits discrimination against same-sex adopting couples, but also allows exceptions at the "sole discretion" of the Commissioner.

At the same time, the Court declined to reconsider Employment Div., Dep't of Human Resources of Oregon v. Smith, which holds that religiously neutral and generally applicable laws that have an incidental burden on religion must only satisfy rational basis review.

As a result, the ruling is a short-term victory for CSS (which the city will likely quickly undo--see below). But it puts off the Big Issue--whether Smith is still valid law--for another day. (This issue will certainly come back to the Court, and the Court will almost certainly change the rational-basis test in Smith, raising the standard of review and thus making it easier for religious groups or individuals to challenge neutral, generally applicable laws. It's just a matter of when.)

The case, Fulton v. City of Philadelphia, arose when the city informed CSS that the city could no longer contract with CSS for foster-care services so long as CSS refused to certify same-sex couples as foster-care parents. (Instead, CSS said it would refer such a certification to another social-services agency.) The city claimed that CSS's refusal to certify same-sex couples violated a non-discrimination provision in its contract with the city and the city's Fair Practices Ordinance. CSS sued, arguing that the City violated its free exercise rights, and urging the Court to overturn Smith.

The Supreme Court agreed. Chief Justice Roberts wrote the opinion, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. The Court held that the anti-discrimination contract provision was not generally applicable, because it allows the Commissioner to grant an exception in the Commissioner's sole discretion. Moreover, the Court held a second contractual provision, which categorically barred discrimination (with no exceptions), had to be read in harmony with the exception in the first provision--in other words, that the exception still applied. Finally, the Court held that the city's Fair Practices Ordinance didn't apply, because foster care isn't a "public accommodation" under the Ordinance.

Because no generally applicable law applied, the Court said that Smith was the wrong test. Instead, the Court applied strict scrutiny (under Church of Lukumi Bablu Aye, Inc. v. Hialeah). The Court held that the city lacked a sufficiently compelling interest to exclude CSS, and ruled that the city's action violated the Free Exercise Clause.

The ruling is narrow--it hangs on the exception in the non-discrimination clause in the city's contract with CSS. As a result, the city can easily dodge a free exercise problem by simply omitting the exception from the clause in its contract with CSS. (The city says it never used the exception, anyway.)

Moreover, the ruling doesn't do anything to Smith or the rational-basis test for religiously neutral, generally applicable laws that incidentally burden religion. This question will surely come back to the Court, though (maybe even in a next round in this very case, if the city omits the exception from its contract and holds CSS in violation). And when it does, the Court will almost certainly change the test, making it easier for religious groups or individuals to challenge neutral, generally applicable laws as violating free exercise.

Justice Barrett concurred, joined by Justice Kavanaugh and (in part) Justice Breyer. She noted that the Court would need to work through a number of questions before it overruled Smith, and that the best approach might not be to categorically apply strict scrutiny to these kinds of claims.

Justice Alito wrote a sharp and lengthy concurrence, joined by Justices Thomas and Gorsuch. He argued that the Court should overrule Smith and replace it with the test that preceded Smith (in Sherbert) and that Congress later adopted in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act: "A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest."

Justice Gorsuch wrote his own concurrence, joined by Justices Thomas and Alito. He argued that the Court likely got it wrong on the applicability of the Fair Practices Ordinance--that in fact, the Ordinance "is both generally applicable and applicable to CSS"--and on the separate contract provision that categorically prohibited discrimination. Justice Gorsuch argued that the Court's attempts to maneuver around Smith thus failed, that the Court should've addressed Smith, and that it should've overturned it.

June 17, 2021 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis | Permalink | Comments (0)

Thursday, June 3, 2021

Cole, Jaffer, and Olson on FISA Court Transparency

Check out David Cole, Jameel Jaffer, and Ted Olson's piece in the NYT on transparency at the Foreign Intelligence Surveillance Court. The FISC "authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public."

The three and others teamed up on a cert. petition, asking SCOTUS to rule on whether the First Amendment provides a qualified right of public access to the FISC's significant opinions. (The FISC and the Foreign Intelligence Surveillance Court of Review both ruled that they lacked jurisdiction to hear the question.) The Court hasn't yet decided whether to take up the case. Here's the docket, with amicus briefs supporting the cert. petition.

June 3, 2021 in Cases and Case Materials, Courts and Judging, First Amendment, News | Permalink | Comments (0)

Monday, April 26, 2021

Eleventh Circuit Says No Clearly Established Right to Photo Police on Highway

The Eleventh Circuit ruled last week that a witness to a highway accident didn't have a clearly established right to photograph police activity on the median. The court granted an officer qualified immunity against the witness's First Amendment claim and dismissed the case.

The case, Crocker v. Beatty, arose when James Crocker stopped to take pictures of an accident on the median of I-95 in Florida. Martin County Deputy Sheriff Steven Beatty confiscated Crocker's phone and placed him in a patrol vehicle. Crocker sued, alleging a violation of his First Amendment right to free speech, among other things.

The Eleventh Circuit ruled that Beatty enjoyed qualified immunity, because Crocker had no clearly established right to photograph police activity on a highway median. The court said that circuit precedent, Smith v. City of Cumming, established only that "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." The court said that this was too vague a statement to create a clearly established right to photograph police "on the median of a major highway at the rapidly evolving scene of a fatal crash," in "the chaos of a fatal car crash," by "a citizen who (as we will explain shortly) might well have been photographing the incident from an unlawful vantage point" (although Beatty specifically told Crocker that he wasn't violating the law).

Judge Martin dissented, arguing that Smith clearly established the right.

April 26, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, April 21, 2021

First Circuit Rebuffs Officer's Free-Speech Retaliation Claim

The First Circuit ruled last week that a Massachusetts police department did not violate an officer's free-speech rights by taking disciplinary action against the officer after the officer first reported another officer's misconduct, and later made threats and false claims to his superior and an independent investigator. The court ruled that the department would've taken the same disciplinary action regardless of the officer's protected speech.

The case, Gutwill v. City of Framingham, started when officer Matthew Gutwill filed a complaint against another officer that the other officer gave false testimony at a suppression hearing. The department concluded that Gutwill had "good cause" to make the complaint, but that the allegations were unsubstantiated.

The department later rotated Gutwill out of his DEA taskforce position and made other changes that affected his overtime and privileges. Gutwill complained about those changes to senior officers, including a call to the department chief, where Gutwill made threatening comments, told the chief that federal agents had recorded the deputy chief on a wiretap as part of a drug investigation, and told the chief that he (Gutwill) had reported his concerns to the FBI.

The chief reported the call, and the department appointed an independent investigator. The investigator initially concluded that Gutwill had not been truthful in denying his threats to the chief. The department placed Gutwill on administrative leave pending the completion of the investigation. The investigator later concluded that Gutwill lied to her (the investigator), too, about his (Gutwill's) statements about the deputy chief. In response, the department suspended Gutwill for five days without pay for dishonesty and conduct unbecoming an officer. An independent hearing officer concluded that Gutwill violated department regulations on honesty and conduct.

Gutwill sued. The district court ruled against him, and the First Circuit affirmed. The court held that the department demonstrated that it would've taken the same disciplinary actions whether or not Gutwill engaged in protected speech. The court said that the chief had good cause to report the call with Gutwill, and that the hearing officer's conclusion that Gutwill violated department rules was "an adequate, non-retaliatory basis for Gutwill's discipline." It also noted that the investigator's conclusion that Gutwill was dishonest with her provided yet another independent reason for Gutwill's discipline.

April 21, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, April 12, 2021

Seventh Circuit Says Governor Can Limit Media Access to Press Conferences

The Seventh Circuit ruled on Friday that a state governor can limit media access to press conferences, so long as the limits are reasonable and viewpoint neutral. The ruling rebuffs the plaintiffs' challenges and allows the governor to continue to limited access to press conferences based on viewpoint neutral criteria.

The case, MacIver Institute for Public Policy v. Evers, arose when Wisconsin Governor Tony Evers prevented two reporters from the MacIver Institute from attending his limited-access press conferences. Evers restricted access based on a set of criteria that included things like the length of time that a media outlet has published news, whether a media outlet is a periodical or has an established television or radio presence, whether the reporters are paid or full-time correspondents, and whether the reporters and media outlet are "bona fide" and "of repute in their profession," among other similar criteria. The Institute sued, arguing that free speech and free press guaranteed a right to equal access for all media.

The court rejected the Institute's challenge. It ruled that the governor's limited-access press conferences were "nonpublic" forums, and that the governor permissibly limited access based on criteria that had nothing to do with a media outlet's viewpoint. Moreover, the court noted that the Institute provided no evidence that Evers applied the viewpoint neutral criteria in a viewpoint-based way. The court noted that under the governor's viewpoint-neutral criteria, the governor allowed access to a variety of media across the range of political ideologies, and that the governor similarly disallowed access to a variety of media across the range of political ideologies.

 

April 12, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)