Constitutional Law Prof Blog

Court Hears Arguments in First Amendment Retaliatory Arrest Case

The Supreme Court hears oral arguments today in a case testing whether a local public official was arrested in retaliation for her free speech. Here's my argument preview, from the ABA Preview of United States Supreme Court cases, with permission:

FACTS

In 2019, Sylvia Gonzalez was elected to the five-member city council for Castle Hills, Texas. (Castle Hills is a small town, with fewer than 5,000 residents, in Bexar County.) After she was sworn in, on May 14, 2019, Gonzalez, fulfilling a campaign promise, organized a nonbinding citizens’ petition that called for the removal of the city manager. More than 300 Castle Hills residents ultimately signed the petition.

At Gonzalez’s first city council meeting, on May 21, 2019, a resident submitted the petition to Mayor Edward Trevino, who sat next to Gonzalez at the meeting. A two-day “prolonged and tense discussion” ensued over the city manager’s job performance, including a number of residents who testified against the petition. One resident testified that Gonzalez “asked her to sign the petition ‘under false pretenses.’”

When the meeting ended, on May 22, Gonzalez collected her papers, placed them in her binder, and stepped away. While Gonzalez was away, Trevino peeked at her binder and waved for Castle Hills Police Captain Steve Zuniga, who was on duty at the meeting. Trevino asked Zuniga to summon Gonzalez back to the council table. Trevino then asked Gonzalez, “Where’s the petition?” Gonzalez responded, “Don’t you have it? It was turned in to you yesterday.” Trevino said he did not have the petition, and he asked Gonzalez to look in her binder. To her surprise, she found the petition in her binder, and she handed it to Trevino. Trevino said that Gonzalez “probably picked it up by mistake.”

A few days after the meeting, Trevino filed a criminal complaint alleging that Gonzalez tried to steal city records. Chief of Police John Siemens assigned the investigation to Alexander Wright, a private attorney. After a month-long investigation, Wright obtained an arrest warrant for Gonzalez for tampering with a government record, a misdemeanor. In his affidavit supporting his request for the warrant, Wright identified a possible motive: Gonzalez hoped to prevent consideration of the claim that she asked a resident to sign under false pretenses.

Upon learning of the warrant, Gonzalez turned herself in and spent a day in jail. (Gonzalez contends that Trevino, Siemens, and Wright followed a course that would ensure that she spent some time in jail, as opposed to being released pending further proceedings.)

The district attorney ultimately dismissed the charges. But burned by her experience, Gonzalez resigned from the city council and said that she will never run again for political office or organize a petition.

Gonzalez sued Trevino, Siemens, and Wright, alleging that they unlawfully arrested her in retaliation for exercising her First Amendment rights, including her right to organize the petition drive. She also alleged that prior tampering charges in the county involved situations very different from hers.

The district court denied the defendants’ motion to dismiss, but the Fifth Circuit reversed. This appeal followed.

CASE ANALYSIS

The Court ruled in 2019 that a plaintiff who alleges that officers arrested them in retaliation for protected First Amendment speech must plead and prove that the officers lacked probable cause. Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Drawing on earlier cases involving retaliatory prosecutions, the Court said that this no-probable-cause rule would help courts determine when an officer arrested a plaintiff based on animus, as opposed to “the plaintiff’s potentially criminal conduct.” The Court said that this was important when officers had to decide to arrest, because those decisions involve “‘split-second judgements’ . . . and the content and manner of a suspect’s speech may convey vital information—for example, if he is ‘ready to cooperate’ or rather ‘present[s] a continuing threat.’”

But the Nieves Court left open one exception to this general no-probable-cause rule: “where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” such as “jaywalking at . . . an intersection.” The Court said that in such a case “probable cause does little to prove or disprove the causal connection between animus and injury.” As a result, the Court held that a plaintiff need not plead and prove probable cause if they “present[] objective evidence that [they] were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Gonzalez argues first that a different test should apply. She says that the burden-shifting framework for retaliatory claims is more appropriate. Under that framework, a plaintiff must first demonstrate that their protected speech substantially motivated the government’s action against them. Then the government official carries the burden to show that they would have taken the adverse action “even in the absence of protected conduct.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). (Gonzalez says that Nieves and an earlier case are the Court’s only two “departures” from the Mt. Healthy framework.) Gonzalez contends that Mt. Healthy fits her case better, because the Nieves rule is specifically designed for cases when an officer made on-the-spot, time-pressured decisions, and where there is therefore “little evidence of retaliatory motive other than allegations of the officer’s state of mind.” Her case is different, she says, because the officials had time to reflect before acting. As a result, probable cause “is not any more apt to disprove causation than other probative evidence of the sort courts routinely consider under Mt. Healthy.”

Gonzalez argues next that the Fifth Circuit wrongly limited the “objective evidence” that she could use to show that she fell within Nieves’s exception to the no-probable-cause rule. She says that the Fifth Circuit only considered “evidence of non-arrests of non-critics engaging in similar allegedly arrestable behavior.” But she contends that this approach doesn’t fit her case, where the defendants “adopted an extraordinary and unprecedented interpretation of the law and applied it for the first and only time to a prominent critic.” (In other words, the traditional type of evidence that a plaintiff could use for the Nieves exception—comparisons to how officers treated similarly situated people—simply isn’t available here, because Gonzalez’s treatment was so unique.) Instead, she claims that she should “only have to produce objective evidence that the speech was the reason for the arrest,” which she did.

Gonzalez argues that the Fifth Circuit’s approach would “all but preclude First Amendment claims for retaliatory arrest.” Moreover, she says that the approach would “incentivize government officials to use inventive, pretextual arrests as their preferred means of suppressing criticism.” According to Gonzalez, this would give officers “endless opportunities . . . to use the criminal justice system to bludgeon dissenters into submission.”

The defendants counter that even under Nieves, “probable cause presumptively defeats retaliatory-arrest claims,” and that probable cause supported Gonzalez’s arrest here. The defendants point to the valid warrant that authorized Gonzalez’s arrest, and contend that the warrant “signal[s] even more strongly that suspected crime—not protected speech—prompted [the] arrest.”  They claim that limiting the general Nieves test to on-the-spot arrests makes no sense, and “would bizarrely incentivize police to arrest first and think later to avoid litigation.” And in any event, they say that “Gonzalez never connects the dots of how [the defendants’] alleged animus created her arrest given independent evidence establishing probable cause and Texas peace officers’ legal duty to report crimes.” The defendants argue that common law “confirms” these conclusions.

The defendants argue next that two exceptions do not apply here. They contend that the exception for “official municipal policies of retaliation” does not apply, because there was no “official policy” here, and because the defendants are individuals, not the municipality. They claim that the exception for “ubiquitous, minor offenses where police customarily exercise discretion not to arrest” (the Nieves exception) doesn’t apply, because even Gonzalez concedes that her arrest was based on “probable cause [of] a serious crime.” And “[i]f [the] exception applies even to serious crimes, that limited exception would obliterate the probable-cause bar, and officers would be exposed to easily pled retaliation claims for virtually any arrest whenever plaintiffs offer any objective evidence.” 

Next, the defendants argue that even if the Nieves exception applies “to arrests pursuant to warrants for non-endemic crimes,” Gonzalez did not satisfy it. For one, they claim that Gonzalez did not produce “comparator evidence”—“objective evidence that [the plaintiff] was arrested when otherwise similarly situated individuals” weren’t. They contend that the instances she did produce (other tampering-with-documents prosecutions under Texas law) were inapt, and “only underscore[] that officials do enforce Texas’s statute.” And they assert that Gonzalez’s broader evidence of animus (for example, the defendants’ actions designed to put her in jail) “have no bearing on whether alleged animus caused the arrest.”

Finally, the defendants argue that their approach does not “invite[] tyranny,” as Gonzalez contends. They say that “[p]laintiffs arrested without probable cause can sue,” and that “[o]ther remedies deter rogue arrests.” Despite the Court’s most recent “reject[ion] [of] any retaliation claims against federal officials, including for arrest with probable cause or without warrant” in Egbert v. Boule, 596 U.S. 482 (2022), and “[c]ontrary to Gonzalez’s rhetoric, freedom still reigns.”

The government weighs in to make three points. First, the government asserts that “the no-probable-cause requirement is an aspect of a constitutional damages tort—not the First Amendment itself.” Morever, “nothing in Nieves transforms the requirement into a limitation on First Amendment rights.” The government asks the Court to make this clear, so that “the Nieves rule does not apply to alternative mechanisms for enforcing constitutional rights under federal and state criminal and civil statutes, which contain their own separate limits.”

Next, the government argues that the lower court “misconstrued Nieve’s ‘narrow qualification’ to the ‘general[]’ no-probable-cause rule” with regard to the form of the evidence a plaintiff must proffer. The government says that plaintiffs can use evidence other than “that other similarly situated individuals engaged in identical (but nonexpressive) conduct but were not arrested,” and it provides examples. (This argument complements Gonzalez’s parallel argument.) The government contends that the Fifth Circuit’s narrower approach to evidence “would inappropriately leave plaintiffs without a [constitutional] remedy in otherwise-meritorious cases where the evidence to satisfy that requirement takes a different form.”

Finally, the government asserts that Nieves “applies just as much to deliberative arrests as to on-the-spot ones.” (This argument opposes Gonzalez’s first argument, that the Court should apply Mt. Healthy, not Nieves.)

SIGNIFICANCE

This case tests whether and how Nieve’s exception to the no-probable-cause rule applies to an unusual arrest over a month after the protected speech. If the Court affirms the Fifth Circuit’s approach, as Gonzalez and the government argue, the ruling could effectively leave plaintiffs who have been arrested in unusual circumstances without a remedy for retaliation claims. That’s because, by definition, any plaintiff subject to an unusual arrest could not produce evidence of other, similar non-arrests to fit within the exception.

But on the other hand, if the Court rules that the no-probable-cause rule only applies to on-the-spot arrests, as the defendants argue, this could “bizarrely incentivize police to arrest first and think later to avoid litigation.” That’s because officers would move to arrest on the spot, in order to trigger the rule, even if they didn’t need to or shouldn’t have. If the Court rules that the Nieve’s exception to the no-probable-cause rule applies to serious crimes, this could effectively “obliterate the no-probable-cause bar.”

Court Defines When Public Official's Social Media Violates Free Speech

The Supreme Court issued a pair of rulings this week that set the test for when the First Amendment prohibits a public official from restricting access to their social media. The rulings send the cases back to the lower courts for application of the Court's new test.

Both cases arose when local public officials blocked users from their social media. In both cases, the officials used social media for both public posts and personal posts. The blocked users sued, arguing that the officials violated the First Amendment. In response, the officials argued that their use of social media did not constitute state action, and so neither Section 1983 nor the First Amendment applied.

The Court ruled that the First Amendment applied to public officials' mixed-use social media when (1) the public official had actual authority to speak on behalf of the government on a particular matter and (2) the public official purported to exercise that authority in the relevant posts. As to (1), the Court said that "[t]he alleged censorship must be connected to speech on a matter within [the official's] bailiwick." It also said that "[d]etermining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage."

In sum, a defendant . . . must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.

As to (2), the Court said that "the public employee [must] use his speech in furtherance of his official responsibilities" and that this can sometimes (as with speech "on an ambiguous page") require "a fact-specific undertaking in which the post's content and function are the most important considerations." The Court also noted that the technology mattered. For example, "[b]ecause blocking operated on a page-wide basis, a court would have to consider whether [an official who blocked users] had engaged in state action with respect to any post on which [the user] wished to comment." "If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designed personal account therefore exposes himself to greater potential liability."

Did Biden Administration Officials Impermissibly Coerce Social Media to Moderate Content?

The Supreme Court will consider the issue on Monday, March 18. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Two states and five individuals sued the government after social-media platforms removed or downgraded their posts. The plaintiffs claimed that 67 federal entities, officials, and employees coerced or significantly encouraged the platforms to censor their posts, which primarily related to COVID-19 and the 2020 election. In their Statement of the Case, starting at page 2 of their brief, the plaintiffs set out what they call “a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.” Here are some highlights, according to the plaintiffs. (The Fifth Circuit’s opinion contains a similar narrative.)

• On January 23, 2021, in response to an anti-vaccine tweet by Robert F. Kennedy, the White House asked Twitter (now X) to “get moving on the process for having it removed ASAP.” The White House also asked, “And then if we can keep an eye out for tweets that fall in this same genre that would be great.” (The plaintiffs claim that this was part of a larger coordination effort between the Biden Administration’s “transition and campaign teams” and Twitter.)

• Government entities, including the White House in “close cooperation” with the Surgeon General’s Office, asked social-media platforms for reports on their content-moderation policies. Government actors also suggested content-moderation policies to social-media platforms to monitor and restrict misinformation about COVID-19.

• The White House told one platform that “[i]nternally, we have been considering our options on what to do about it.” It sent another platform a list of regulatory proposals for content moderation and said, “spirit of transparency—this is circulating around the [White House] and informing thinking.”

• On May 5, 2021, the White House Press Secretary asked platforms to “stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” On July 16, President Biden said that platforms were “killing people” by not moderating false content. Four days later, the White House Communications Director said that the Administration was considering “whether these companies should be held liable for publishing false information,” including “amending the Communications Decency Act, or Section 230 of the act,” which gives social-media platforms immunity from claims based on third-party content.

• According to the plaintiffs, “[t]he platforms capitulated to virtually all White House demands going forward, and ‘began taking down content and deplatforming users they had not previously targeted.’” Moreover, “platforms responded by treating the CDC as the final authority on what could and could not be posted on their platforms.”

• The FBI and CISA held regular meetings with platforms and pressured them to moderate content, including election content posted by Americans, sometimes under threat of legislation. In 2020, the FBI and CISA urged platforms to moderate “hacked materials,” which the platforms used to “promptly . . . suppress the New York Post’s Hunter Biden laptop story shortly before the 2020 election.”

• In 2020, CISA launched the “Election Integrity Partnership” (later called the “Virality Project”) to facilitate cooperation between the government, research agencies, and social-media platforms on content-moderation policies. The plaintiffs say that this effort “involve[d] extremely tight federal-private collaboration, with dozens of points of contact and cooperation.”

The district court held that the actions of seven groups of defendants transformed social-media platforms’ content-moderation decisions into state action, and that the government actions violated the First Amendment. The court entered a sweeping preliminary injunction, ordering those defendants and hundreds of thousands of employees of defendant agencies not to engage in ten types of speech. The injunction also contained some carve-outs, allowing the government to inform platforms of content involving “criminal activity,” “national security threats,” and certain other content.

The Fifth Circuit agreed that the government violated free speech, but it narrowed the injunction. (The government vigorously disputed many of the district court’s factual findings. The Fifth Circuit did not rely on many of those findings, but nevertheless held that the findings it credited were sufficient to support a narrowed injunction.) The Fifth Circuit’s injunction prohibited the government and its employees from taking any action, “formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to” moderate content “containing protected free speech.” The injunction said that this included “compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directly, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”

The Court stayed the injunction and agreed to hear the case.

CASE ANALYSIS

This case raises three issues. Let’s take them one at a time.

Standing

The government argues that the plaintiffs lack standing, because they failed to show that they suffered any cognizable injuries that are traceable to the government’s conduct or that could be redressed by judicial relief. The government says that the plaintiffs rely mostly on past instances when social media platforms moderated their posts, and that these instances occurred before the challenged government actions. Moreover, the government claims that the Fifth Circuit’s injunction restricting future government action cannot redress those past injuries, and that the plaintiffs failed to establish a real threat of future injuries that the injunction could redress. The government contends that the plaintiffs cannot establish standing based on their “generalized desire to listen to other social-media users.” According to the government, no court has endorsed such a “limitless theory.” Finally, the government asserts that the states lack standing, because states have no First Amendment rights.

The plaintiffs counter that they suffered, and continue to suffer, harms from the government’s ongoing pressure campaign against social-media platforms. They say that the government pressured platforms to censor their posts, to censor specific topics and viewpoints on which they speak, to adopt moderation policies that apply against the plaintiffs, and to censor other speakers that the plaintiffs read and re-post. The plaintiffs contend that the government’s actions harmed the states, which have “sovereign interests in posting their own speech and in following the speech of their citizens on social media, especially political speech.” The plaintiffs assert that the government’s efforts are ongoing, and that their harms are therefore “virtually certain to recur during the pendency of the case,” so that the Fifth Circuit’s injunction redresses their harm.

First Amendment

As a general matter, private social-media platforms are not restricted by the First Amendment. That’s because the First Amendment only applies against the government, not private actors. As a result, an individual has no First Amendment claim against a private social-media platform, even if the platform moderated the individual’s post based on government information, persuasion, or criticism. Indeed, the government communicates with social-media platforms all the time in order to help those platforms make content-moderation decisions that protect national security, public health, and other public interests. And social-media platforms often moderate content in response to government information and even persuasion.

That said, a private social-media platform becomes a state actor subject to First Amendment restrictions when the government “compels” it “to take a particular action,” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019), or “significantly encourages” it to take action.

In assessing whether government actors merely informed or persuaded, on the one hand, or impermissibly coerced or significantly encouraged, on the other, courts look to the particular circumstances of the government’s actions. In particular, they look to whether, under the specific facts, the government threatened consequences or offered incentives that effectively compelled a private party to act in a certain way.

The government argues that officials’ actions fell well short of “coercive threats” or “significant encouragement.” It says that no government official offered inducements to social-media platforms, and that no official from the FBI, CDC, CISA, or the Surgeon General’s Office threatened any platform with adverse consequences or offered any positive inducements. Instead, the government says that officials “largely just provided the platforms with information.” As to White House officials, the government says that they only provided “general responses to press questions untethered from any specific content-moderation request.”

The government argues that the Fifth Circuit erred in concluding otherwise. In particular, the government says that the Fifth Circuit wrongly “deemed all of the platforms’ content-moderation activities to be state action by radically expanding the state-action doctrine.” (Emphasis in original.) For example, the government contends that the Fifth Circuit wrongly concluded that FBI communications were inherently coercive just because “the FBI is a law-enforcement agency.” Moreover, the government contends that the Fifth Circuit wrongly concluded that government “significant encouragement” only required minimal government “entanglement” with the platforms, when in fact “significant encouragement” requires much more.

The government argues that the Fifth Circuit’s approach would lead to “startling” results. It says, for example, that the Fifth Circuit’s approach would sharply restrict the ability of government officials to speak on important matters of public concern, including national security and public health. Moreover, the government contends that the Fifth Circuit’s approach would constrain the ability of private social-media platforms to moderate content on these issues, because they would be considered “state actors” subject to the First Amendment.

The plaintiffs counter that government officials’ behavior constitutes both significant encouragement and coercion. As to significant encouragement, they claim that officials’ conduct “involves deep government entanglement in private decisionmaking based on relentless pressure from federal officials, including ‘the most powerful office in the world.’” As to coercion, the plaintiffs contend that government officials “employ[ed] a battery of explicit and implicit threats and pressure to ‘bend’ platforms ‘to the government’s will.’”

But even if the government hasn’t coerced the platforms, the plaintiffs argue that the government is “engaged in joint action with the platforms” by “conspir[ing] with platforms through endless private meetings and communications reflecting extensive, direct federal involvement in specific decisions.” According to the plaintiffs, this “entwine[ment]” transforms the private platforms’ content-moderation decisions into state actions under the First Amendment.

Injunction

The government argues that the Fifth Circuit’s injunction is impermissibly vague and overbroad. It says that the lower court failed to “identify any facts demonstrating that respondents will likely suffer irreparable harm in the future” to support the injunction. Moreover, the government contends that the injunction includes individuals who are not parties to the case, and impermissibly “covers any governmental communication about moderation of content on any topic posted by any user on any platform.” Finally, the government asserts that the injunction would “harm the government and the public by chilling a host of legitimate Executive Branch communications.”

The plaintiffs counter that the Fifth Circuit’s injunction is properly tailored. They say that it only prevents the government “from coercing and significantly encouraging the suppression of protected speech,” and that “[e]xtending the injunction across platforms and speakers is imperative to grant complete relief.” Moreover, they contend that other equitable factors favor the injunction. In particular, they claim that the government will continue its behavior, violating the rights of “millions” of Americans, and that “the likelihood of ongoing and repeated injuries to the Plaintiffs is overwhelming.”

SIGNIFICANCE

This case tests when and how the government can work with private social-media companies to address third-party content that threatens public health, electoral integrity, and other critical public interests. Just to draw on a couple examples from this case: How far can the government go in urging social-media platforms to moderate false information about COVID-19 vaccinations? How far can it go in urging platforms to moderate false information about the time or location of elections, or false information alleging election fraud?

On the one hand, social-media companies have long sought to address dangerous third-party content through content-moderation policies. And the government has long worked with these corporations (and other media) to inform and protect the public from those threats.

In recent times, the government has provided briefings, notices, and alerts to social-media corporations regarding third-party content that raises threats related to foreign and domestic terrorism, “covert foreign malign actor[s],” and (as here) public health and electoral security. Government officials have also often spoken publicly on a range of issues related to social media, including the public harms that can come from widespread false information on social-media platforms. The government can speak to private actors; it can even try to persuade them. Indeed, the government would be hard-pressed to govern without this power.

But on the other hand, heavy-handed government involvement with platforms and their content-moderation decisions—especially over politically charged topics—could raise the specter of government censorship.

In figuring where to draw the line, look for the Court to probe the specific behavior of various government actors and the larger context of that behavior. In particular, look for the justices to focus on what government actors actually said or did; whether their statements or actions contained threats or inducements; and how the social-media platforms likely understood their statements or actions; among other, similar questions. The Court may conclude that some government action crossed the line, and that other government action didn’t.

This case comes to the Court just weeks after the Court heard arguments in two other social-media cases, Moody v. NetChoice and NetChoice v. Paxton. Those cases test whether Florida’s and Texas’s laws restricting social-media platforms from moderating third-party content violate the First Amendment. To state the obvious: all of these cases are politically loaded. In the NetChoice cases, the states worry that social-media platforms censor politically conservative speech. In this case, the plaintiffs contend that the Biden Administration is causing them to censor that speech, and that it’s doing so for political reasons.

But as in the NetChoice cases, just because this case is politically loaded, don’t assume that the justices (or at least all of them) will lean toward their conventionally accepted political preferences. That’s because any rule or approach that the Court applies in this case will apply equally if and when the political tables turn.

Did a New York Official Impermissibly Coerce Companies Not to do Business with the NRA?

The Court will take up this question on Monday, March 18. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases:

FACTS

In late 2017, the Superintendent of New York’s Department of Financial Services (DFS), Maria Vullo, launched an investigation into an NRA-endorsed affinity insurance program called “Carry Guard.” (An affinity insurance program is an insurance program endorsed by an organization and offered to the organization’s members. Affinity insurance programs are serviced and underwritten by third-party insurance companies (and not the organization itself), but the NRA’s program bears the organization’s name and logo, and the NRA receives a portion of its members’ premiums as a royalty.) Carry Guard provided insurance coverage for losses resulting from an insured person’s use of a licensed firearm. The program included criminal defense costs for a person’s use of a firearm with excessive force, even if the insured acted with criminal intent. According to the Second Circuit, “[i]n other words, it insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” Carry Guard policies were underwritten by a subsidiary of Chubb Limited and administered by Lockton Companies, LLC. (The NRA claims that Vullo’s investigation “quickly expanded to encompass not just Carry Guard, but insurance products that had nothing to do with firearms.”)

The investigation revealed that Carry Guard and at least two other NRA insurance affinity programs violated New York insurance law because, among other reasons, they provided coverage for intentional criminal acts. By November 17, 2017, Chubb and Lockton suspended the Carry Guard program.

The investigation also revealed that Lloyd’s of London provided underwriting for at least 11 other, similar NRA-endorsed programs. Lockton administered these programs, too.

On February 14, 2018, a shooter killed seventeen students and staff at Marjory Stoneman Douglas High School in Parkland, Florida. According to the plaintiffs, “[i]n the wake of the shooting, the NRA faced intensified criticism for its pro-gun rights advocacy from many corners, including [New York] Governor [Andrew] Cuomo and Superintendent Vullo.”

That same month, Vullo began meeting with insurance executives whose companies did business with the NRA to urge them to rethink their relationships with the organization. For example, Vullo told executives at Lloyd’s that the company “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups.” After Vullo’s meetings with Lloyd’s, the company “agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.” DFS agreed to “focus its forthcoming affinity-insurance enforcement action” against Lloyd’s “solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”

Soon after, Lockton’s chairman told the NRA that “Lockton would need to ‘drop’ the NRA” out of “fear of ‘losing [our] license’ to do business in New York.” Lockton then tweeted that it would stop offering brokerage services for all NRA-endorsed insurance programs. Days later, AIG, the NRA’s longtime “corporate carrier,” announced that “it was unwilling to renew coverage at any price.” According to the plaintiffs, AIG discontinued its relationship with the NRA “because it learned of” Vullo’s and Cuomo’s “threats directed at Lockton and feared it would be subject to similar reprisals.”

On April 19, 2018, Vullo issued two guidance letters on “risk management relating to the NRA and similar gun promotion organizations,” one to DFS-regulated insurance corporations and the other to DFS-regulated financial institutions. Citing the Parkland shooting and public sentiment, the letters urged DFS-regulated entities to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility.” The letters specifically “encourage[d] regulated institutions to review any relationship they have with the NRA or similar gun promotion organizations and to take prompt actions to manag[e] these risks and promote public health and safety.” The letters, however, did not refer to any specific investigations or enforcement actions, like the investigation into Carry Guard.   

The same day, Cuomo issued a press release, stating that “I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities.” The release quoted Vullo as saying, “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage the[] risks and promote public health and safety.” The release announced that two insurance companies, MetLife and Chubb, already stopped doing business with the NRA, and urged “all insurance companies and banks doing business in New York to join” them. Following up the next day, Cuomo tweeted, “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.”

Two weeks after Cuomo’s press release, DFS revealed the results of its investigations into Chubb and Lockton over the Carry Guard program. DFS imposed multi-million-dollar fines on both companies. It also entered into consent decrees with the companies, in which the companies agreed to halt the Carry Guard program and never again to offer any affinity insurance program to the NRA. (Under the decrees, Chubb and Lockton could still provide insurance to the NRA itself, or to help the NRA in procuring corporate insurance coverage.)

Within a week of the consent decrees, Lloyd’s directed its underwriters to halt all insurance programs associated with the NRA, and not to provide any insurance to the NRA in the future. Then, in December 2018, Lloyd’s entered into its own consent decree with terms similar to the Chubb and Lockton decrees.

The plaintiffs claim that “[p]rivately, these companies stated that the decision to sever ties with the NRA arose from fear of regulatory hostility in New York.” They also contend that the NRA is having “serious difficulties obtaining corporate insurance coverage to replace coverage withdrawn by the [NRA’s] Corporate Carrier,” AIG, and that the organization has “spoken to numerous carriers,” but “nearly every carrier has indicated that it fears transacting with the NRA specifically in light of DFS’s actions against Lockton, Chubb, and Lloyd’s.” Finally, the plaintiffs assert that “numerous banks withdrew bids for the NRA’s business after Vullo issued the Guidance Letters.”

The NRA sued Vullo, Cuomo, and others, alleging that Vullo’s actions punished the organization for its protected speech. The district court dismissed all the NRA’s claims, except two First Amendment claims against Vullo. The Second Circuit reversed, holding that the NRA failed to plausibly allege that Vullo coerced DFS-regulated entities in violation of the First Amendment, and that Vullo enjoyed qualified immunity. The Court then granted review on the First Amendment issue, but declined to include the qualified immunity question.

CASE ANALYSIS

As a general matter, government officials have wide latitude to express their views. As a result, officials can express a preference for a position or viewpoint; they can criticize organizations and corporations; and they can even try to persuade individuals and organizations to adopt certain behaviors, including disassociating themselves from particular advocacy groups or viewpoints. Government officials engage in speech like this all the time, and the First Amendment does not prohibit it.

That said, government officials cannot coerce a person or organization to disassociate themselves from a speaker, advocacy organization, or viewpoint by using threats or inducements. In determining the line between (permissible) persuasion and (impermissible) coercion, courts assess a government official’s behavior on the whole and in context. Drawing on the Court’s ruling in Bantam Books v. Sullivan, 372 U.S. 58 (1963), lower courts typically look to several factors, including the authority of the government official over the individuals or organizations they are addressing; the content, style, and purpose of the communications; and the effect of the official’s conduct on their intended audiences. (The NRA counts these as three factors, and Vullo counts them as four; but they amount to the same thing.) All this means that at the motion-to-dismiss stage (as here), a plaintiff must allege that, on the whole and in context, they “reasonably understood” a government official’s statements as a threat of adverse government action if they declined to comply. 

The NRA argues that the Bantam Books factors line up in its favor. As to the first factor, the organization says that by virtue of Vullo’s position she had “outsized influence over the banks and insurers whom she urged to cut ties with the NRA.” As to the second, it claims that Vullo “directly invoked her statutory authority” in her actions; she directed regulated entities to take “prompt action” and to consider their “reputational risks” or face multi-million-dollar fines; and she offered benefits to the NRA’s insurance partners for cutting off ties with the NRA, “extract[ing] promises” from the three who did. As to the third factor, the NRA contends that regulated corporations well understood Vullo’s behavior as coercion and “heard her message loud and clear.” The NRA asserts that taking the complaint’s allegations as true (as we must at this stage), the complaint sets out “a campaign of threats and inducements designed to retaliate against the NRA’s protected political speech in violation of the First Amendment.”

The NRA contends that the Second Circuit got it wrong by holding otherwise. The organization says that the Second Circuit “mangled basic pleading standards, dismissed or ignored critical allegations of coercion, and failed to consider the cumulative effects of Vullo’s actions.” Moreover, it claims that the lower court’s “suggestion that Vullo’s political blacklisting campaign was justified because of the NRA’s unpopularity in New York” effectively invites similar “blacklisting campaigns” against any unpopular group. And finally, the NRA contends that Vullo’s actions—“urg[ing] every bank and insurance company in New York State to cut all business ties with the NRA” (emphasis in original)—far exceeded what was necessary to address the Carry Guard program. “By her words and deeds, Vullo made clear that her goal was a political blacklist, not legitimate law enforcement.”

Vullo counters that the Court lacks jurisdiction. Vullo says that because the question presented is limited to the NRA’s First Amendment claim, the Second Circuit’s ruling on her qualified immunity will stand. (An official can enjoy qualified immunity on the ground that the law was not clearly established at the time, even if the Court clearly establishes it later.) As a result, she enjoys qualified immunity regardless of how the Court rules on the First Amendment claim, and the First Amendment issue is therefore merely “advisory.”

Vullo argues next that even if the Court has jurisdiction the NRA’s “claims suffer from [four] fatal problems” that would allow the Court to duck a First Amendment ruling. First, Vullo says that “the bulk of the NRA’s allegations turn on enforcement acts protected by absolute prosecutorial immunity.” Next, she claims that the NRA “failed to plausibly allege that [she] retaliated against speech, as opposed to regulating third parties’ conduct,” especially “in light of the insurers’ own admissions that they and the NRA were engaged in wide-ranging illegal conduct.” Third, Vullo contends that her actions limited “only what the NRA could do, not what it could say.” And fourth, as to the Lloyd’s meeting, she asserts that “the NRA has not plausibly alleged that [she] threatened to interfere with Lloyd’s lawful arrangements with the NRA,” because “all of the affinity programs Lloyd’s provided for the NRA were illegal.” (Emphasis in original.) She also points out that Lockton (the licensed excess-line broker for the NRA) already decided to sever ties with the NRA two days before her alleged meeting with Lloyd’s (the unlicensed excess-line insurer), and under New York law, “Lloyd’s could not lawfully continue its relationship with the NRA either . . . .”

If the Court gets past these threshold issues, Vullo argues that “the NRA’s complaint does not plausibly allege coercion.” Under the Bantam Books factors, she contends that she “did not reference or threaten adverse consequences,” but instead “used quintessential language of encouragement,” except when referring to actual legal violations. She says that “the NRA’s allegations about the supposed Lloyd’s meeting are vague, conclusory, and contradicted by the NRA’s allegations elsewhere.” Moreover, Vullo claims that her “tone and word choice of the industry letters was even-handed and nonthreatening,” and that “[t]he consent orders’ tenor was wholly consistent with their aim.” She asserts that the responses by the regulated entities “are easily explained as responses to the horrific Parkland shooting or the insurers’ own admittedly unlawful conduct,” and not her coercion. And she contends that her own authority can’t make “her otherwise nonthreatening communications coercive,” or else law enforcement officials generally could not express their views on public issues.

Finally, Vullo argues that “[t]he NRA’s arguments would be devastating for government officials at all levels.” In short,

These arguments would eviscerate the protections of prosecutorial immunity and the presumption of regularity; circumvent limits on selective-enforcement suits; inhibit public officials from performing their duties; invite strike suits in response to legitimate law-enforcement actions and government speech; and allow entities to insulate themselves from the consequences of their unlawful conduct by engaging in controversial speech.

The government weighs in to argue that Vullo engaged in impermissibly coercive conduct during her meeting with Lloyd’s. It says that the NRA’s allegation that Vullo “expressed a desire to leverage her authority to financially weaken [the NRA] based on her disagreement with [the NRA’s] views, identified technical regulatory infractions that Lloyd’s might have committed, and then stated that she would be willing to overlook those infractions if Lloyd’s stopped doing business with petitioner . . . [i]f true . . . would establish that [Vullo] violated the First Amendment. The government contends that the lower court erred in saying otherwise, because it failed to connect the Bantam Books factors to the underlying question (“[w]hether the official’s challenged conduct, viewed objectively and in context, conveys a threat of adverse government action”), and failed to take account of Vullo’s reference to adverse consequences at the meeting.

The government urges the Court not to rule on the NRA’s other claims, related to the guidance letters and the consent decrees. The government says that these claims only “raise more difficult questions in a highly unusual factual context.”

SIGNIFICANCE

This case tests how aggressively a government regulator can urge corporations to stop doing business with an advocacy organization before the regulator violates the organization’s right to free speech. And it does so against the backdrop of the horrific Parkland shooting, and in the context of one of the more politically charged issues of our times, firearms.   

On the one hand, the NRA contends that the First Amendment does not permit a regulator, especially one like Vullo, with such vast authority, to use their office and the threat of regulatory enforcement to harm an ideological foe. On the other hand, Vullo says that she should be able to use her leverage to halt illegal relationships; after all, that’s her job. The government, for its part, seeks to split the difference, and urges the Court to rule some of Vullo’s conduct (the alleged Lloyd’s meeting) unconstitutional, while dodging the conduct that raises thornier claims.

Vullo gives the Court several off-ramps—ways to rule without touching the core First Amendment claim. But it’s not at all clear that the Court will take any of them. After all, the Court certified the question presented intentionally and left out qualified immunity, suggesting that at least four justices want to take up the NRA’s free-speech claim.

It’s impossible to take the politics out of this case. I certainly don’t need to remind you that the NRA has its own political bent. But remember that the Court’s ruling, whatever it is, has to work both ways, politically speaking. So in addition to testing the line between persuasion and coercion, look for the justices to test how any proposed rules or theories stack up when the politics are different.

One final point. We’ve seen reports in late 2023 and more recent months about troubles at the NRA—declining membership, internal infighting, and, most recently, the civil judgment against Wayne LaPierre. This case spotlights another problem for the organization: corporations who no longer can or will do business with it (with or without the actions of regulators like Vullo). This case may have something to say about how far regulators can go in urging corporations to disassociate with the NRA in the future. But it may have little effect on corporate decisions already made. If insurers or bankers already decided not to associate with the NRA—either because their actions were illegal, or because they disapprove of the NRA’s message—this case (whatever it says) may not bring them back.

American Library Association Reports Record Number of Book Challenges in 2023

The ALA reports that 4,240 book titles were targeted for censorship in 2023, a 65 percent increase over 2022. The ALA reports four key trends:

• Pressure groups in 2023 focused on public libraries in addition to targeting school libraries. The number of titles targeted for censorship at public libraries increased by 92 percent over the previous year; school libraries saw an 11 percent increase.
• Groups and individuals demanding the censorship of multiple titles, often dozens or hundreds at a time, drove this surge.
• Titles representing the voices and lived experiences of LGBTQIA+ and BIPOC individuals made up 47 percent of those targeted in censorship attempts.
• There were attempts to censor more than 100 titles in each of these 17 states: Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Maryland, Missouri, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Wisconsin.

In response, ALA launched Unite Against Book Bans "to empower readers everywhere to stand together in the fight against censorship."

Eleventh Circuit Strikes Florida's "Anti-W.O.K.E." Act

The Eleventh Circuit this week ruled that the workplace-training ban in Florida's "Anti-W.O.K.E." Act violates the First Amendment. (The case didn't involve the public-school instruction ban, and that court had nothing to say about that part of the Act.) The court affirmed the district court's preliminary injunction against the Act, thus allowing employers in Florida to continue to host diversity training programs for their employees.

Florida's Act prohibits employers from subjecting "any individual, as a condition of employment" to "training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels" specified topics and viewpoints about race. Those topics and viewpoints include positions like "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin" and "An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or not."

The Eleventh Circuit ruled that the Act constituted impermissible content and viewpoint discrimination, and that the state failed to demonstrate that it satisfied strict scrutiny. In short, "Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory." Moreover, even if the state had a compelling interest, the Act's "breadth and scope would doom it."

Florida argued that the Act regulated conduct, not speech. But the court had none of it. "Under Florida's proposed standard, a government could ban riding on a parade float if it did not agree with the message on the banner. The government could ban pulling chairs into a circle for book clubs discussing disfavored books. And so on. The First Amendment is not so easily neutered."

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).