Tuesday, February 25, 2020
SCOTUS Hears Oral Arguments in First Amendment Challenge to Crime of Encouraging or Inducing Immigration Violation
The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who
encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."
The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute. The Deputy Solicitor General argued that the statutory provision was not aimed at speech and did not encompass "substantial amounts of it," and if it did, courts could remedy those situations with as-applied challenges rather than the "last resort remedy of overbreadth invalidation." Arguing for the Respondent, who had been convicted of two counts of the crime, Mark Fleming contended that the words of the statute — "encourages or induces" — are much broader than usual criminal words such as "solicitation" or "aiding and abetting." Fleming emphasized that the "even accurate advice" encouraging someone to stay in the United States is criminalized, including a teacher who says to an undocumented student that she should stay and pursue her education.
The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that
because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.
(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:
There's a teenager who's -- who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.
Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.
Nevertheless, whether or not the statute would be used that way, or to prosecute people based only on their speech, Fleming pointed to United States v. Stevens, involving the "crush-porn" statute which the Court found unconstitutional, noting that the "first Amendment does not require us to rely on the grace of the executive branch." Interestingly, after Stevens, Congress did pass a more narrow statute which has been upheld. That experience would surely be on some of the Justices' minds as they consider Chief Justice Roberts's comments about whether the extent to which the statute might be rewritten would need to be "passed by the Senate and House" and "signed by the President," garnering laughter in the courtroom.
Yet Fleming also noted that the government has recently made a "focus" of the enforcement of immigration laws and should the Court uphold the statute, more robust enforcement would likely follow. Given the current controversies around immigration, that would surely also be on the minds of the Justices.
Monday, February 24, 2020
The United States Supreme Court granted certiorari in Fulton v. City of Philadelphia.
Recall that a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents. Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents. Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be. Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case. As the court stated:
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of [Employment Division v. ] Smith  that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”
The litigation attracted much attention and the grant of certiorari may indicate that some of the Justices are willing to overturn Smith or to extend the holding of Masterpiece Cakeshop.
Thursday, January 23, 2020
The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.
Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination." Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:
Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.
The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:
isn't the crucial question why the state court did what it did?
If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.
So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.
Is that constitutional?
The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."
Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."
This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:
And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .
Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:
can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.
The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground. And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.
January 23, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Oral Argument Analysis, Race, Religion | Permalink | Comments (0)
Monday, January 20, 2020
The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn't. The ruling sets a test and clarifies the law in the Ninth Circuit.
The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed "no access before process," meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn't use electronic filing; it's all paper.)
As the case worked its way through the federal courts, Ventura County changed its practice to a "scanning policy." Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.
The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the "no access before process" violated it, while the "scanning policy" didn't. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court's important interest in the fair and orderly administration of justice. Or: "Ventura County must demonstrate first that there is a 'substantial probability' that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to 'adequately protect' that government interest."
As to the "no access before process" policy, the court said that it resulted in significant delays, but didn't serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy "caused far greater delays than were necessary to protect [these interests]."
As to the scanning policy, the court said that it directly related to the court's asserted interests and that, after the court changed its filing hours, the policy resulted in "near perfect" same-day access to the complaints. (Before the court changed its filing hours, there wasn't near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)
The ruling leaves the current scanning policy in place.
Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied "reasonable time, place and manner restrictions."
Friday, January 10, 2020
The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).
The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.
The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015). Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based. The panel stated:
Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.
a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited technology, with the sole distinction being that the first call relates to a loan guaranteed by the federal government, while the second call concerns a commercial loan with no government guarantee.
Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:
It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.
However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added, the automated call ban was “fully operative.”
The United States Supreme Court has now added this case to its 2019-2020 Term.
Thursday, January 9, 2020
In a six page letter, the New York City Bar Association urged Congress to "commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice."
The bar association letter discusses four specific instances of public comments that were inconsistent with the duties of the Attorney General
to act impartially, to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities are bedrock obligations for government lawyers. In the context of pending investigations, government lawyers also are obliged to be circumspect in their public statements and to avoid prejudging the outcomes of those investigations.
The letter also remarks that the specific "comments follow and are reminiscent of Mr. Barr’s earlier mischaracterizations of the Mueller Report, prior to his release of a redacted version of it, in which Mr. Barr claimed the special counsel had found insufficient evidence of any obstruction of justice by President Trump—a material mischaracterization of the Mueller Report and a proposition rejected by more than 1,000 former federal prosecutors based on the facts set forth in the Mueller Report."
In brief, the four instances are:
- On October 11, 2019, in an invitation-only speech at the University of Notre Dame, Mr. Barr launched a partisan attack against “so called ‘progressives’” for supposedly waging a “campaign to destroy the traditional moral order.”
- On November 15, 2019, in a speech at the Federalist Society’s National Lawyers Convention, Mr. Barr again vilified “progressives” and “the Left” (characterizing as “the other side” those who “oppose this President”) in highly partisan terms.
- On December 3, 2019, drawing from earlier remarks, Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.”
- On December 10, 2019, in a television interview soon after DOJ’s Inspector General released a report finding no improper political motivation in the FBI’s commencement of a counterintelligence investigation into alleged ties between the Trump-Pence campaign and Russian officials in 2016, Mr. Barr publicly rejected the Inspector General’s findings, asserting instead that a separate ongoing investigation into the FBI’s actions that he personally had directed would likely reach a different conclusion.
The letter asks for Congressional oversight of Attorney General Barr because, in short,
In a troubling number of instances, Mr. Barr has spoken and acted in a manner communicating an impression that he views himself as serving as the Attorney General not for the entire nation, but more narrowly for certain segments of society—whether defined in terms of religion, ideology (his own “side,” to borrow the language of Mr. Barr’s Federalist Society speech) or party affiliation.
Wednesday, January 1, 2020
For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:
It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.
[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy: Shelby County (regarding voting rights); Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts); McCutcheon (finding campaign finance regulations unconstitutional). For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.
Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside. Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.
Sunday, December 29, 2019
The Ninth Circuit ruled last week in Danielson v. Inslee that a public sector union is not liable for mandatory union dues paid before the Supreme Court struck mandatory union fees in Janus. The ruling follows a similar one in the Seventh Circuit.
Recall that the Supreme Court ruled in 2018 in Janus v. AFSCME that public sector unions could not collect mandatory fair-share fees (fees used for collective bargaining activities) consistent with the First Amendment. The ruling overturned the 1977 case Abood v. Detroit Board of Education, which upheld mandatory fees against a First Amendment challenge.
After Janus, public sector unions stopped collecting the fees. But some public sector employees sued for pre-Janus fees paid. That's what happened in the Seventh Circuit, which led that court to hold that unions weren't on the hook for pre-Janus fees. And it's what happened in the Ninth Circuit, too.
The Ninth Circuit held that the union could invoke a good-faith defense against the plaintiffs' claims, relying on the pre-Janus state of the law to continue to collect mandatory fair-share fees. As to the strong hints from the Court even before 2018 that fair-share fees were on the chopping block, the Ninth Circuit said,
Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled. We agree with our sister circuit that "[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future."
The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon.
Monday, December 23, 2019
The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act.
But who is a "ministerial" employee subject to the exemption from employment laws?
Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.
In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:
- (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
- (2) whether the employee’s title reflected ministerial substance and training;
- (3) whether the employee held herself out as a minister; and
- (4) whether the employee’s job duties included “important religious functions.”
Applying those factors, the Ninth Circuit panel stated:
Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.
Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.
Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she
by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.
Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.
And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .
The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."
The petition for rehearing en banc was denied, but with a lengthy dissenting opinion by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting. Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges,
In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.
With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations.
The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.
The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.
[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]
Thursday, December 12, 2019
The D.C. Circuit this week rejected First Amendment challenges by the vaping industry to two key provisions of the Tobacco Control Act. The ruling affirms the FDA's authority to require premarket review of vaping products and to ban the distribution of free samples of vaping products.
The case tests two provisions of the TCA. The first provision requires FDA premarket review of all new tobacco products, including e-cigarettes. The Act has three pathways for premarket review, depending on the type of tobacco product. Products designed for recreational use (like traditional cigarettes) get the easiest path of review; products marketed as safer than existing tobacco products ("modified risk" products) get a mid-level path; and products marketed as smoking cessation products get the most demanding path for review. The second provision bans the distribution of free samples.
Plaintiffs, a vaping manufacturer and a vaping industry group, argued that the two provisions violated the First Amendment. In particular, they claimed that the FDA uses a manufacturer's own claims about its product to designate an appropriate premarket review pathway (the modified risk pathway in this case), in violation of free speech. They contend that the ban on free samples impermissibly restricts their free expression. The D.C. Circuit flatly rejected the claims.
As to the premarket review requirement, the court cited circuit precedent that "explicitly approves the use of a product's marketing and labeling to discern to which regulatory regime a product is subject, and to treat it as unlawful insofar as it is marketed under a different guise." But in any event, the court also held that the requirement met Central Hudson's commercial speech test: "[E]ven if we were to scrutinize the FDA's reliance on new tobacco product descriptors as a burden on the Industry's commercial speech, the modified risk product pathway clears First Amendment scrutiny because it is reasonably tailored to advance the substantial government interest in protecting the public health and preventing youth addiction."
As to the ban on free samples, the court explained that this provision regulates conduct, not speech, and that the conduct has no obvious expressive value. The court rejected the plaintiffs' argument that free samples are "the most effective and efficient means of obtaining product-specific information when trying to switch away from deadly cigarettes":
The Industry thus appears to be urging us to afford constitutional protection to the informational value of customers' experience trying out vaping, including the experience of sampling the available flavors and sensations.
This extraordinary argument, if accepted, would extent First Amendment protection to every commercial transaction on the ground that it "communicates" to the customer "information" about a product or service. Even if we could bridge the gap between the opportunity to use a product and the expression of an "idea," the Supreme Court has long rejected the "view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."
But even if the free-sample ban imposed an incidental burden on speech, the court held that "the restriction itself applies to conduct and is imposed 'for reasons unrelated to the communication of ideas.'"
Wednesday, December 11, 2019
In an opinion in Turtle Island Foods SPC d/b/a Tofurky Co. v. Soman, Judge Kristine Baker of the Eastern District of Arkansas considered a First Amendment challenge to >Arkansas Code §§ 2-1-305(2), (5), (6), (8), (9), and (10). The provisions prohibit misbranding or misrepresenting agricultural products; central to the issue was subsection 6 which prohibits
Representing the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids.
Judge Baker considered seven labels for products she referred to as “Veggie Burger,” “Deli Slices,” “Chorizo Style Sausage,” “Slow Roasted Chick’n,” “Original Sausage Kielbasa,” “Hot Dogs,” and “Vegetarian Ham Roast.” These products were not derived from "harvested livestock, poultry, or cervids" and were vegetarian.
After finding that Tofurky had standing and that abstention was not appropriate, Judge Baker analyzed the merits of the First Amendment claim. The parties agreed and the court found that the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), for commercial speech governed:
- (1) whether the commercial speech at issue concerns unlawful activity or is misleading;
- (2) whether the governmental interest is substantial;
- (3) whether the challenged regulation directly advances the government’s asserted interest; and
- (4) whether the regulation is no more extensive than necessary to further the government’s interest.
Arkansas argued that the first prong regarding misleading speech was not satisfied and thus the speech did not warrant First Amendment protection, but Judge Baker found that taken as a whole the labels were not misleading:
It is true, as the State contends, that these labels use some words traditionally associated with animal-based meat. However, the simple use of a word frequently used in relation to animal-based meats does not make use of that word in a different context inherently misleading. This understanding rings particularly true since the labels also make disclosures to inform consumers as to the plant-based nature of the products contained therein.
The “Veggie Burger” label has the word “veggie” modifying the word “burger” and includes the words “all vegan” in the middle of the package. Further, the “Veggie Burger” label features the words “white quinoa” next to a picture of the burger. The “Deli Slices” label also includes the words “all vegan” in the middle of the label, features the words “plant-based” next to a picture of the product, and describes the product as “smoked ham style.” (emphasis added). The “Chorizo Style Sausage” label includes the words “all vegan” and states that the product was “made with pasture raised plants.” The “Slow Roasted Chick’n” label has the words “all vegan” right next to the product’s name and describes the product as “plant-based” in the bottom left corner. The “Original Sausage Kielbasa” label includes the words “all vegan” next to the word “sausage” and identifies the product as “Polish-style wheat gluten and tofu sausages.” The “Hot Dogs” label has the words “all vegan” next to the word “dogs” and “plant-based” under the word “dogs.” The “Vegetarian Ham Roast” has the word “vegetarian” modifying the words “ham roast.” Each of these labels also feature the letter “V” in a circle on the front of the packaging, a common indicator that a food product is vegan or vegetarian. Finally, each of these labels feature the company name “Tofurky,” which clearly contains the word “tofu” in a play on the word “turkey.”
Applying the other prongs of Central Hudson, Judge Baker found that while the state had an interest in preventing misleading labels, the statute did not substantially further that interest (given that these labels were not misleading), and that a ban on these descriptions was more extensive than necessary.
Thus, Judge Baker issued a preliminary injunction, finding that the factors for a preliminary injunction had been met.
Friday, December 6, 2019
SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision
The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.
Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980). The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests.
And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas. The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.
Sunday, November 24, 2019
Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.
The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.
New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot).
Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.
The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.
As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act."
The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."
November 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Wednesday, November 20, 2019
The Seventh Circuit earlier this month rejected Mark Janus's claim for retroactive fair-share fees he paid to AFSCME, before the Court struck fair-share fees under the First Amendment in Janus.
The ruling is the first in a circuit court to address whether workers in a union shop are entitled to retroactive fair-share fees that they paid before Janus. District courts that have ruled on the issue are unanimous in rejecting the claims.
A contrary ruling--one putting public sector unions on the hook for retroactive fair-share fees--could be (even more) devastating to public sector unions.
Recall that the Court struck mandatory fair-share fees for public-sector unions in Janus. That was huge, because the case overturned a 1977 ruling, Abood v. Detroit Board of Education, that upheld those fees.
After Janus came down, the plaintiff in that case, Mark Janus, sued again, this time to get back fees he paid before the Supreme Court struck them. AFSCME argued that it collected those fees in good-faith reliance on Abood and therefore wasn't required to repay them.
The Seventh Circuit agreed with AFSCME. But it also emphasized the narrowness of its decision:
It is not true, as Mr. Janus charges, that this defense will be available to "every defendant that deprives any person of any constitutional right." We predict that only rarely will a party successfully claim to have relied substantially and in good faith on both a state statute and unambiguous Supreme Court precedent validating that statute.
The issue is brewing in several other circuits.
Monday, November 4, 2019
In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.
The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.
Interestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.
The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.
As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type." On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.
Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.
Thursday, October 24, 2019
The Illinois Supreme Court last week upheld the state's revenge-porn law against a First Amendment challenge. The ruling rebuffed an appeal by a criminal defendant charged with violating the law.
The case, People v. Austin, tested Illinois's effort to criminalize revenge porn. The law provides as follows:
(b) A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.
The court first ruled that the law doesn't cover material in any categorical exception to free speech (like incitement, true threats, obscenity, etc.), and it declined to establish a new exception.
It next ruled that the law is a content-neutral restriction on speech: "There is no criminal liability for the dissemination of the very same image obtained and distributed with consent. The manner of the image's acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination." The court went on to hold that the act satisfies intermediate scrutiny, because it serves the state's interest in protecting privacy and "the substantial government interests of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively" without it.
The court rejected arguments that the act was overbroad or vague.
The dissent argued that the act was content-based, because "one must look at the content of the photo to determine whether it falls within the purview of the statute," and that it failed strict scrutiny because it lacked a specific intent element. "Instead, simply viewing an image sent in a text message and showing it to the person next to you could result in felony charges."
Wednesday, October 2, 2019
District Court Halts Enforcement of California Law Requiring Presidential Candidates to Release Taxes
Judge Morrison C. England, Jr., (E.D. Cal.) granted President Trump's motion for a preliminary injunction yesterday and halted enforcement of California's new requirement that presidential primary candidates file their income tax returns with the state before gaining a place on the primary ballot.
The ruling puts a temporary stop to California's effort to press President Trump to reveal his tax returns.
The case tests California's requirement that candidates in the California primary election for president file their tax returns with the state before the state will list them on the ballot. Here's the measure:
Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, at least 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years.
California said that it adopted the measure in order to help its voters make an informed choice among candidates in the primary election. But it was pretty clearly a blunt effort to force President Trump to file his tax returns, which the state could then make public.
The court ruled that the requirement likely violated the Article II Qualifications Clause, the First Amendment, and the Equal Protection Clause.
As to Qualifications, the court drew on U.S. Term Limits, Inc. v. Thornton, where the Court struck Arkansas's effort to impose term limits on its members of Congress. The Court in Thornton ruled that the state's term limits impermissibly added a qualification to its members of Congress over and above the minimum qualifications set in the Article I Qualifications Clause. Judge England ruled that the same principle applies to a state's additional qualifications over and above the minimums set in the Article II Qualifications Clause, and that California's requirement amounts to just such an additional qualification.
As to the First Amendment, Judge England held that California's requirement amounts to a "severe restriction" on the right to access the ballot, the right to political association, the right to vote, and the right to express political preferences. The court applied strict scrutiny and held that the requirement failed.
Finally, as to equal protection, Judge England held that the requirement impermissibly treated partisan primary candidates differently than independent candidates (who are not subject to the requirement). "The State lacks any valid interest in providing voters with more information about party-backed candidates than independent candidates, especially when such requirements can lead to the exclusion of only major party candidates on the ballot."
Tuesday, September 17, 2019
Arizona Supreme Court Finds Religious Exemption for Same-Sex Wedding Invitations Despite Nondiscrimination Ordinance
In lengthy and sharply divided opinion in Brush & Nib Studio v. City of Phoenix, the Arizona Supreme Court has held that a custom wedding invitation company and its proprietors have a right to refuse to express to make invitations for same-sex weddings under article 2, section 6 of the Arizona Constitution, providing that "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right," as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01. This right prevailed over the City of Phoenix’s Ordinance, as amended in 2013, which prohibits public accommodations from discriminating against persons based on their status in a “protected” group, which includes a person’s sexual orientation. Phx., Ariz., City Code (“PCC”) § 18-4(B). As the majority made clear, however, its holding was " limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record," and did not "recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations," or reach the question of other wedding services. The court appended illustrative samples in the appendix (and see below).
The opinion rests on the independent ground of the state constitution and is thus insulated from federal review (given that no other constitutional right is at issue). The majority notes that the free expression provision of the state constitution "by its terms" "provides broader protections for free speech than the First Amendment."
Nevertheless, the majority extensively relies upon United States Supreme Court cases. The citations include the Court's 2018 opinion in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, although in Masterpiece there was a conclusion that the Colorado Civil Rights Commission, enforcing its state nondiscrimination statute, expressed hostility on the basis of religion in its adjudication of the case - an issue that is not raised by the multiple opinions in Brush & Nib. The majority traces some of the rationales in the Masterpiece arguments: finding that the same-sex wedding invitations with their art and calligraphy (like the cake-baking) is "art" and speech, and finding that nondiscrimination ordinance seeks to compel their speech in support of beliefs they do not hold, such as same-sex marriage. The majority thus applies strict scrutiny, holding that a nondiscrimination public accommodations law is not a compelling governmental interest, and that such laws target conduct rather than speech and it is therefore not narrowly tailored.
Three of the seven Justices of the Arizona Supreme Court dissented. The dissenting opinion that all three Justices joined found that there was a tension between "our fundamental values of liberty and equality," but because "the interest in preventing discrimination is compelling, equality prevails when we are dealing with public accommodations such as businesses serving the public." The dissenters also argued that "the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers."
And while this case is not suitable for certiorari to the Supreme Court, this issue will most likely recur in Arizona given the majority's attempt to limit the decision and the sharp divisions on the court; just as it will be recurring elsewhere.
Tuesday, September 10, 2019
The Ninth Circuit ruled today in Victory Processing v. Fox that Montana's ban on political robocalls violates the First Amendment. The ruling strikes the ban.
Montana's robocall statute reads as follows:
A person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of . . . promoting a political campaign or any use related to a political campaign.
A robocall company sued, arguing that the provision violated free speech. The Ninth Circuit agreed.
The court ruled that the provision is a content-based restriction on speech, and that it fails strict scrutiny. The court said that while the state had a compelling interest for enacting the provision--the protection of personal privacy--the ban wasn't narrowly tailored to achieve that end. In particular, the court said that the ban was underinclusive with respect to protecting personal privacy, because it singles out only political robocalls and four other topics for robocalling, but "leaves consumers open to an 'unlimited proliferation' of robocalls on other topics. The court also said the ban was also overinclusive, in that it regulates only "categories of robocalling that have not been shown to pose a threat . . . ."
The ruling aligns with Cahaly v. Larosa, 796 F.3d 399, a 2015 Fourth Circuit case also striking a ban on political robocalling.
Wednesday, September 4, 2019
In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.
As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).
The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.
Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.
Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass.
On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:
The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.
The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.