Thursday, November 15, 2018
In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."
After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:
Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and  both the burden and legitimate regulatory interest should be evaluated in context.”
[some citations omitted]
Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."
Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."
Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.
Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.
Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).
The Florida recount, like the Georgia recount continues, more than a week after election day.
Friday, November 2, 2018
The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.
Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.
In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.
Here, Judge Ross articulated the appropriate framework as:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that
it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.
Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."
Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:
Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
- Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Monday, October 15, 2018
In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation. Recall the claim was based on Trump's tweet "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels' complaint claimed that Trump was not only attacking the truthfulness of Daniels, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity."
The judge, however, found:
Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.
Additionally, the judge denied a motion to amend the complaint:
The Court holds that Mr. Trump's tweet is "rhetorical hyperbole" and is protected by the First Amendment. Plaintiff cannot amend the Complaint in a way that challenges this holding. During argument on this matter, Plaintiff suggested that she could amend her Complaint to "shore up the malice allegations" and to "provide context for the statement to show that, in fact, it was not political nature at the time it was made." (Transcript * * * ) The former amendments are futile because this Court rules that Mr. Trump's tweet is protected by the First Amendment. The issue of malice is irrelevant to this holding. The latter amendments are futile because there is no way for Plaintiff to amend the Complaint to transform the tweet from "rhetorical hyperbole" into an actionable statement. * * * * Plaintiff cannot change Mr. Trump's tweet or the basic context of the tweet. Nor can Plaintiff withdraw factual allegations that she has made in pleadings before this Court. In the other litigation before this Court, Ms. Clifford argues that Mr. Trump sought to silence her as a strategy to win the Presidential election, a clear argument against the legitimacy of Mr. Trump's Presidency. Mr. Trump issued the tweet as a rejoinder against an individual challenging him in the public arena. This is the definition of protected rhetorical hyperbole. The Court denies Plaintiff leave to amend the Complaint.
The result is not surprising given reports that after a hearing several weeks ago, Judge James Otero indicated he would be dismissing the action.
The judge also awards Trump attorneys fees.
Thursday, September 20, 2018
Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."
A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.
Here's the list of authors and titles, all accessible here:
Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”
Mary Anne Franks, “The Free Speech Fraternity”
Sarah C. Haan, “Facebook and the Identity Business”
Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”
Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”
Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”
Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”
Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”
Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”
Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”
Ruthann Robson, “The Cyber Company Town”
Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”
Sonja West, “President Trump and the Press Clause: A Cautionary Tale”
Wednesday, September 19, 2018
The Supreme Court yesterday declined to stay a lower court ruling that struck an FEC reg that created a disclosure loophole for 501(c)(4) organizations.
The reg allowed 501(c)(4)s and cooperating super-PACs to avoid statutory disclosure requirements. The district court ruled that the reg was at odds with statutory disclosure requirements.
Chief Justice Roberts last week issued an order (without opinion) staying the district court ruling, but yesterday the full Court vacated the Chief's order and denied the stay (also without an opinion).
Under the (now not stayed) district court ruling, the FEC has 45 days to come up with new regs that comply with the statute.
Tuesday, September 11, 2018
In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.
The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"
After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."
Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.
Eighth Circuit: Missouri Constitutional Amendment Prohibiting Inter-PAC Contributions Violates First Amendment
In its brief opinion in Free and Fair Election Fund v. Missouri Ethics Commission, a panel of the Eighth Circuit agreed with the district judge that Mo. Const. Art. VIII §23.3 violates the First Amendment.
The Missouri constitutional provision, approved by voters in November 2016, prohibited political action committees (PACs) from receiving contributions from other political action committees. The PAC Free and Fair Election Fund quickly challenged the constitutional amendment contending that the inter-PAC transfer ban violated the First Amendment. The district judge and appellate panel agreed, reasoning that restricting the recipients to whom a PAC can donate "limits the donor-PAC’s speech and associational rights under the First Amendment," and thus "the challenged law must advance a sufficiently important state interest and employ means closely drawn to avoid unnecessary abridgment of First Amendment freedoms."
Quoting McCutcheon v. FEC (2014), the Eighth Circuit reasoned:
There is only one legitimate state interest in restricting campaign finances: “preventing corruption or the appearance of corruption.” This interest is limited to preventing “only a specific type of corruption—‘quid pro quo’ corruption” or its appearance. A large donation that is not made “in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to . . . quid pro quo corruption.” Similarly, the general risk that a donor, through large donations, will “garner influence over or access to elected officials or political parties,” either in fact or in appearance, is insufficient to create quid pro quo corruption. Instead, “the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.”
[citations omitted]. The Eighth Circuit held that the inter-PAC transfer ban "does little, if anything, to further the objective of preventing corruption or the appearance of corruption," distinguishing the 2016 Eleventh Circuit decision in Alabama Democratic Conference v. Attorney General of Alabama, because "unlike Alabama, Missouri limits the contributions that a PAC can make to a candidate, so the anti-corruption interest cited in support of the Alabama law is diminished here."
The Eighth Circuit further found that the transfer ban was not closely drawn: "the risk of corruption from PAC- to-PAC transfers is modest at best, and other regulations like contribution limits and disclosure requirements act as prophylactic measures against quid pro quo corruption."
The Eighth Circuit affirmed the injunction against the Missouri constitutional provision, perhaps setting up a circuit conflict on the constitutionality of inter-PAC transfers.
Monday, August 27, 2018
In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution.
The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018. However, recall also that the United States Supreme Court issued a stay shortly thereafter. In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment."
As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.
Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:
we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
[emphasis in original].
The November election is in 70 days.
Thursday, August 23, 2018
In its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit reversed the district judge and found that the nature of the activity of Fort Lauderdale Food Not Bombs (FLFNB), "combined with the factual context and environment in which it was undertaken, lead to the conclusion" that FLFNB engaged in a "form of protected expression" under the First Amendment, quoting Spence v. Washington (1974).
As the opinion notes, the panel was resolving "the issue left undecided" in First Vagabonds Church of God v. City of Orlando, Florida (11th Cir. 2011) (en banc). The en banc circuit had stated it need not decide whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct, because even assuming it was, the prohibition was constitutional as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct under United States v. O’Brien (1968).
Here, Judge Adalberto Jordan writing for the unanimous panel begins:
In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).
As to the particularized message requirement for expression, the court stated that it was sufficient that a reasonable observer would infer the precise message intended:
We decline the City’s invitation to resurrect the Spence requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in Hurley [v. Irish-Am. Gay, Lesbian & Bisexual Grp. (1995)], 515 U.S. at 569 (a “narrow, succinctly articulable message is not a condition of constitutional protection”), and it is not appropriate for us to bring it back to life.
Having resolved the expressive conduct issue, the Eleventh Circuit panel remanded the question of whether the Fort Lauderdale ordinance and park rule violated the First Amendment or was unconstitutionally vague.
Wednesday, August 22, 2018
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party.
In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment. The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002. The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence." The court summarized the state of First Amendment law after Black:
First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts.
For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "not only through use the officers’ names, but via other facets of the lyrics. They reference Appellant’s purported knowledge of when the officers’ shifts end and, in light of such knowledge, that Appellant will “f--k up where you sleep.”
A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints." Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were
not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.
Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.
The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.
Saturday, August 18, 2018
The D.C. Circuit ruled in American Freedom Defense Initiative v. WMATA that the D.C. Metro's restriction on certain advertisements was a view-point neutral regulation in a nonpublic forum. But the court nevertheless remanded the case for a determination whether the restriction was "reasonable."
The ruling sends the case back to the district court for further proceedings. "Reasonableness" is usually a very low bar (thus favoring Metro), but the Court just this Term determined that a view-point neutral regulation in a nonpublic forum wasn't "reasonable." That case, Minnesota Voters Alliance v. Mansky, leaves the door cracked for AFDI on remand.
The ruling follows the recent Archdiocese of Washington v. WMATA, where the same court ruled that Metro's restriction on religious advertising was a permissible view-point neutral regulation in a nonpublic forum.
The AFDI case arose when AFDI sought to place an ad on Metro that, according to AFDI, was designed to "make the point that the First Amendment will not yield to Sharia-adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials." Around the same time, Metro was considering restricting ads, given the increasing number of complaints about ads disrespecting President Obama and ads on hot-button issues. A Metro employee told the Board that AFDI's proposed ad was the "straw that broke the camel's back," and the Board approved a temporary moratorium. The Board then rejected AFDI's ad under the moratorium, and later issued permanent restrictions on certain ads. The permanent policy, now in place, prohibits ads on "an issue on which there are varying opinions," politics (pro or con any candidate), religion (again, pro or con), and "industry position[s] or industry goal[s] without direct commercial benefit to the advertiser" (again, pro or con).
AFDI sued, arguing that the moratorium (but not the permanent policy) violated the First Amendment.
The court ruled first that the case was not moot. The court said that the permanent policy represented the same restrictions under the moratorium, and so AFDI's claim against the moratorium was still a live dispute, but now against the permanent policy. (Judge Karen LaCraft Henderson dissented on this point and thus would have dodged the merits.)
The court next said that Metro was a nonpublic forum (under Archdiocese of Washington), and that the restrictions were view-point neutral. The court rejected AFDI's arguments that the policy was view-point discriminatory because (1) Metro adopted the policy in response to AFDI (no evidence of this, and the straw-that-broke-the-camel's-back comment only meant that AFDI's ad, along with a whole bunch of other ads, led to the policy), (2) the policy was facially view-point based (not so under Lehman v. City of Shaker Heights), and (3) the religion restriction is inherently view-point based (AFDI didn't sufficiently develop or press this argument).
But while a view-point neutral regulation in a nonpublic forum usually satisfies the First Amendment, it also has to be reasonable. The court said that there was enough of a question here to remand the case for a determination of reasonableness under this Term's Minnesota Voters Alliance v. Mansky (holding that a restriction on political attire in a poling place wasn't reasonable).
Thursday, August 16, 2018
Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:
Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;
(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and
(2) has endured and been reaffirmed repeatedly throughout the history of the United States;
Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;
Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;
Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;
Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;
Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;
Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;
Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;
Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;
Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and
Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it
(1) the Senate—
(A) affirms that the press is not the enemy of the people;
(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and
(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and
(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.
This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people."
The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!— Donald J. Trump (@realDonaldTrump) August 5, 2018
Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.
Wednesday, August 15, 2018
Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge
The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.
The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.
The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)
The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.
As to Janus's impact on this kind of case, the court wrote,
Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.
Tuesday, August 14, 2018
In its opinion in Askins v. United States Department of Homeland Security, a panel of the Ninth Circuit vacated a district judge's dismissal of a complaint alleging the confiscation and destruction of photographs by United States Customs and Border Protection (CBP) violated the First Amendment
One issue on appeal was whether the district judge incorrectly applied the "law of the case" doctrine to the amended complaint. The Ninth Circuit held the trial judge was wrong and should have evaluated the amended complaint on its own merits.
The First Amendment issue was whether the complaint stated a claim that the CBP's policies prohibiting photography even in public places was a First Amendment violation. Writing for the court, Judge Jay Bybee noted that the trial judge assumed that the areas adjacent to the ports of entry at these specific southern borders — Calexico West and San Ysidiro — were public fora and the CBP's restrictions were content based. The trial judge found that the CBP policies survived strict scrutiny because of the compelling interest of border security and in a "conclusory fashion" determined that the policies were the least restrictive means of serving the interests. The Ninth Circuit's opinion disagreed:
These conclusions are too thin to justify judgment for the government on a motion to dismiss. * * * * Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry. * * * * But the devil lies in the details: “Even at the border, we have rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.
The Ninth Circuit did, however, stress that it was not deciding that the places at issue were in fact public fora. This should be a fact-based analysis. Yet the court in a footnote also noted that it was unclear why the CBP applied its guidelines for the press to these plaintiffs:
We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.
As the case returns to the district judge, questions of specific geography regarding public places near border entries is sure to figure prominently.
Sunday, August 5, 2018
The Fifth Circuit ruled in Seals v. McBee that Louisiana's statute that criminalizes "threats" is unconstitutionally overbroad in violation of the First Amendment. The ruling strikes the state law.
The case arose when officers arrested Travis Seals for an unspecified reason and claimed that Seals resisted arrest and threatened them (with physical harm and legal action). The DA declined to prosecute. Seals then filed a civil action against officers for malicious prosecution, conspiracy, and a First Amendment violation. In particular, Seals said that the Louisiana statute that criminalizes "threats" was unconstitutionally overbroad. (The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [specified persons, including public officers and public employees] with the intent to influence his conduct in relation to his position, employment, or duty.)
The court first ruled that Seals had standing to sue, even though the DA disavowed bringing charges (but also that the government could bring charges as late as December 2019):
Seals's position mirrors that of the plaintiffs in United Farm Workers. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana's caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because the scales are at least as balanced as in United Farm Workers, Seals, too, has standing to challenge Section 14:122.
The court ruled next that the statute was substantially overbroad in violation of free speech:
"[H]ere the statute sweeps so broadly, encompassing any number of constitutionally protected threats, such as to boycott communities, to run against incumbents, and to sue police officers. Hence it is overbroad."
Chief Judge Beryl A. Howell (D.D.C.) ruled on Friday in CREW v. FEC that an FEC regulatory loophole that allows 501(c)(4) organizations and cooperating super-PACs to avoid statutory disclosure requirements was invalid. The ruling strikes the FEC regulation, invalidates the FEC's dismissal of CREW's administrative complaint against Crossroads GPS, and means that the FEC has to reconsider the complaint for failure to disclose contributors. Judge Howell stayed the ruling to give the FEC time to issue valid interim regulations.
The ball's now in the FEC's court. Depending on what the FEC does, this ruling could strike a serious blow to 501(c)(4)s and cooperating super-PACs that use the regulatory loophole to fly under the radar and evade disclosure of contributors.
The case tests the FEC disclosure reg at 11 C.F.R. Sec. 109.10(e)(1)(vi) against the authorizing federal law at 52 U.S.C. Secs. 30104(c)(1) and (c)(2)(C). The reg requires a non-political committee (like a 501(c)(4) organization) to report "[t]he identification of each person who made a contribution in excess of $200 to the person filing such report, which contribution was made for the purpose of furthering the reported independent expenditure." The statute requires a non-political committee "who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year" to report "the identification of each person who made a contribution in excess of $200 to the person filing such statement which was made for the purpose of furthering an independent expenditure."
The court explained how the reg falls short:
First, the challenged regulation wholly fails to implement another disclosure requirement, mandated in 52 U.S.C. Sec. 30104(c)(1), requiring reporting not-political committees to identify non-trivial donors, as well as the date and amounts of their contributions, when the contributions were made for political purposes to influence any election for federal office, or at the request or authorization of a candidate or the candidate's agent. Such contributions may, in fact, be intended to fund the not-political committee's own contributions and be routed to candidates, political parties, or political committees, such as super PACs. Second, the challenged regulation impermissibly narrows the mandated disclosure in 52 U.S.C. Sec. 30104(c)(2)(C), which requires the identification of such donors contributing for the purpose of furthering the not-political committee's own express advocacy for or against the election of a federal candidate, even when the donor has not expressly directed that the funds be used in the precise manner reported.
These disjunctions between the reg and the statute allow non-political committees and cooperating super-PACs to evade disclosure requirements. The court explains how this works:
Reading subsection (c)(1) out of the statute makes a difference. By contrast to the donors covered in subsection (c)(2)(C), who contributed to support the not-political committee's independent expenditures . . . the donors covered in subsection (c)(1) contributed to not-political committees to support political efforts in connection with federal elections, which contributions may be used by the not-political committee, in some cases, to contribute directly to candidates or political committees, including to fund super PACs. For example, super PACs set up only to make independent expenditures, may receive unlimited contributions from donors, including not-political committees, to fund their independent expenditure activity. While super PACs, as political committees, must disclose their contributors, those disclosed contributors may serve merely as pass-through entities to route the funds to the super PAC.
Indeed, super PACs are often affiliated with not-political committees, such as 501(c)(4) organizations, because, as a political committee and not-political committee, respectively, each entity "abides by a particular set of rules, enjoys distinct opportunities, and is subject to different restraints." Allowing not-political committees to mask donors, who otherwise are subject to disclosure under subsection (c)(1), facilitates the role of these organizations as pass-throughs, enabling donors to contribute to super PACs without being identified by routing their contributions through affiliated 501(c)(4) organizations or other types of not-political committees. Absent enforcement of subjection (c)(1), super PACs disclose the identities of contributing not-political committees, but the latter do not disclose the original contributors, subverting the FECA's broad disclosure regime.
The ruling strikes the FEC reg, but gives the Commission another bite at the apple--45 days to issue interim regs that comply with the statute.
Wednesday, August 1, 2018
The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.
Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.
The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.
The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.
The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.
The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."
The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise).
[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.
The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.
Wednesday, July 25, 2018
In his opinion in League of Women Voters v. Detzner, Chief Judge Mark Walker of the Northern District of Florida found that the Florida Secretary of State's Opinion barring early voting on any university or college campus most likely violates the First, Fourteenth, and Twenty-Sixth Amendments, and issued a preliminary injunction.
The issue involves an interpretation of the Florida's Division of Elections, under the Secretary of State, that Florida Statute §101.657(1)(a), passed in 2013, that permits supervisors of elections to “designate any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community center as early voting sites.” A question arose as to whether a particular hall on the University of Florida campus qualified and in response the state official issued an Opinion banning all university and college facilities for use in early voting.
Judge Walker found that the state's interpretation of the early voting statute was constitutionally faulty. While early voting is not required and may be classified as a convenience, Judge Walker quoted Bush v. Gore (2000) — “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another" — to reason that constitutional problems emerge "when conveniences are available for some people and affirmatively blocked for others." Judge Walker began the opinion by noting that the number of people effected was substantial: more than 1.1 million "young men and women were enrolled in institutions of higher learning" in Florida in 2016, nearly 830,000 in public institutions, as well as there being another 107,000 staff members at the public institutions. To stress the number of people involved, Judge Walker wrote:
Put another way, the number of people who live and work on Florida’s public college and university campuses is greater than the population of Jacksonville, Florida—or the populations of North Dakota, South Dakota, Alaska, Vermont, Wyoming, and the District of Columbia.
Judge Walker first applied the the Anderson-Burdick balancing test for less than "severe restrictions." (Recall in Burdick v. Takushi (1992) the Court upheld Hawai'i 's ban on write-in voting). Judge Walker stated that even assuming the state's opinion could be construed as a reasonable nondiscriminatory restriction, it imposed significant burdens on the plaintiffs' First and Fourteenth Amendment rights to vote, categorically prohibiting the use of on-campus early voting and thus "lopsidedly impacts Florida's youngest voters," a class of voters "particularly invested in early voting" with approximately 43 percent of Florida's college students voting early in 2016. These burdens were not justified by the state's interests — which the Judge stated "one must squint hard to identify"— in following state law, preventing parking issues, and avoiding on-campus disruption.
As to the Twenty-Sixth Amendment issue, Judge Walker found that while there was a "dearth of guidance on what test applies" when the claimed infringement is not a facial denial of voting for any citizen 18 years or older, the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) was generally accepted. Judge Walker found that the state's approach revealed a stark pattern of discrimination unexplainable on grounds other than age. Judge Walker also compared the state's policy to earlier seemingly neutral attempts to effect African-American voters, noting that
This Court does not lightly compare contemporary laws and policies to more shameful eras of American history. But addressing intentional discrimination does not require kid gloves.
Having found that there was a likelihood that plaintiffs would prevail on the merits, Judge Walker also found the other requirements for a preliminary injunction were met. The judge instructed the Defendant Secretary of State to issue a directive to supervisors of elections that they retain discretion to implement the Florida statute including any sites that may be on university or college campuses.