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."
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.
Monday, August 19, 2019
In his opinion in Campbell v. Reisch, United States District Judge for the Western District of Missouri Brian Wimes found that a state representative violated the First Amendment rights of her constituent when she blocked him from commenting on her tweet on Twitter.
Judge Wimes largely agreed with Knight First Amendment v. Trump, in which the Second Circuit, affirming the district court opinion, found that President Trump violated the First Amendment rights of those he blocked on Twitter. Judge Wimes found that the plaintiff's speech was on a matter of public concern; Campbell was disputing a criticism by Representative Reisch arising from Reisch's criticism of her political opponent. Further, Judge Wimes found that the "interactive space" on the Twitter account is a designated public forum. Resich's blocking of the plaintiff because he disagreed with her was viewpoint discrimination prohibited by the First Amendment.
Judge Wimes' opinion considers the "color of state law" requirement under 42 U.S.C. §1983, like the state action requirement, met under this "fact intensive" analysis. The judge stated that the defendant controlled the interactive space of her twitter account in her "capacity as a state legislator." Further, she had " launched her Twitter account alongside her political campaign," her "handle references her elected district, and her Twitter account links to her campaign webpage," the "image associated with Defendant’s Twitter account is a photo of her on the state house floor," and finally she "used the Twitter account to tweet about her work as a public official."
Like Trump on Twitter, and the county legislator on Facebook in Davison v. Randall (& Loudoun County) decided by the Fourth Circuit, this opinion is another finding that elected officials cannot "curate" the comment sections on their social media posts. Although there is some authority to the contrary, the strong trend is a warning to warning to elected officials who attempt to silence their critics on social media.
Tuesday, August 13, 2019
The Ninth Circuit ruled yesterday in National Association for Gun Rights, Inc. v. Mangan that Montana's electioneering disclosure requirements did not violate the First Amendment. The ruling keeps the requirements in place.
The Supreme Court has upheld disclosure requirements against First Amendment challenges, and so this ruling is really unremarkable. But at the same time it represents one in the next set of First Amendment challenges to campaign finance laws designed to spur this new Court to strike even more ways that government tries to regulate money in politics.
The case arose when the National Association for Gun Rights sought to spend more than $250 on an "electioneering communication." Montana law requires that any such organization register as a political committee. And such registration, in turn, subjects the group to requirements to disclosure expenditures.
The Association argued that the state's definition of electioneering communication was facially overbroad and unconstitutional as applied to it. In particular, the Association said that the First Amendment permits states to require disclosure only of express advocacy for or against a specific candidate, not the kind of general information that it sought to distribute.
The Ninth Circuit rejected the challenge. The court said that disclosure requirements are valid, even as to non-express-advocacy communications, because, under "exacting scrutiny," they are designed to promote the state's interests in transparency and discouraging circumvention of its electioneering laws.
Tuesday, July 30, 2019
District Court Tosses DNC's Case Against Russia, Trump Campaign for Hacking its Computers, Distributing Stolen Materials
Judge John G. Koeltl (S.D.N.Y.) today dismissed the Democratic National Committee's lawsuit against the Russian Federation, the Trump Campaign, and individuals associated with the campaign for hacking into DNC computers in the 2016 presidential election and distributing stolen material through WikiLeaks.
The ruling ends the case, unless and until the DNC appeals.
The DNC brought the case under a variety of federal statutes, including RICO, and state common law trespass and conversion. The DNC alleged that Russia unlawfully hacked DNC computers and distributed stolen material, and that this benefited the Trump campaign, which "welcomed" the help.
The court dismissed the claims against Russia under the Foreign Sovereign Immunities Act. (The court said that exceptions to the FSIA don't apply because not all of Russia's activities occurred within the United States.) It dismissed the claims against the other defendants under the First Amendment. Here's the short version why:
the First Amendment prevents such liability in the same way [under Bartnicki v. Vopper, ed.] it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC.
So what about all the contacts between the defendants: Don't they show that the defendants "participated in wrongdoing"? The court said no: the DNC simply didn't plead sufficient facts to show this.
The court rejected the DNC's attempt to distinguish or work around Bartnicki, ruling that the case doesn't permit a challenge for stolen trade secrets, or for "after-the-fact" coconspiracy to steal the documents.
The court ruled that there were other reasons to dismiss the case, based on some of the specific causes of action.
Friday, July 12, 2019
In its opinion in Overbey v. Mayor & City Council of Baltimore, the Fourth Circuit held that non-disparagement clauses in settlement of police misconduct claims violates the First Amendment.
Writing for the majority, Judge Henry Floyd, described the non-disparagement clauses that the Baltimore Police Department inserted in 95% of its settlement agreements. Here, Ashley Overbey sued the city for being arrested in her home when she called 911 to report a burglary, resulting in a settlement of $63,000, complete with the usual non-disparagement provision. The Baltimore Sun newspaper reported on the settlement as it went before a city agency for approval, including a negative comment about Overbey from the City Solicitor, and the reporting prompted some anonymous on-line comments, to which Overbey responded online. The City decided that Overbey's online comments violated the non-disparagement clause and thus remitted only half of the settlement amount, retaining $31,500 as "liquidated damages."
The court found that the settlement agreement included a waiver of Overbey's First Amendment rights (rejecting the City's argument that the First Amendment was not implicated by refraining from speaking), and further held that the waiver was "outweighed by a relevant public policy that would be harmed by enforcement." The court rejected the city's arguments, including a fairness argument that the court should enforce Overbey's sale of her speech rights:
Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.
The court thus reversed the district judge's grant of summary judgment to the city. It's opinion clearly held that "the non-disparagement clause in Overbey's settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void."
The court also considered the First Amendment claim of the other plaintiff, Baltimore Brew, a local news website, which the district judge had dismissed for lack of standing. The court held that Brew had standing based on its complaint's allegations regarding the City's pervasive use of non-disparagement clauses in settlements with police brutality claimants as it "impedes the ability of the press generally and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions." The court stressed that its conclusion was based on the allegations in the complaint and that the evidentiary record should be developed by the district judge.
Dissenting, recent appointee to the bench Judge Marvin Quattlebaum stated that since Overbey entered into the settlement agreement voluntarily — a question the majority stated it need not resolve given its conclusion regarding public interest — the courts should enforce it. The defendants, the dissenting judge argued, have an interest in finality, the certainty of their contract, and gave up their "opportunity for vindication by a judge or jury" and are thus entitled to have the non-
disparagement clause enforced. In a footnote, the dissenting judge found the "hush money" by the majority as "harsh words," suggesting that a better view is that the plaintiff "cannot have her cake and eat it too."
[image: "hush money" circa 1883 via]
Tuesday, July 9, 2019
In its opinion in Knight First Amendment v. Trump, the Second Circuit ruled that the "First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open dialogue because they expressed views with which the official disagrees." The case arose from challenges to the President, Donald J. Trump, blocking users on Twitter. Recall that United States District Judge for the Southern District of New York, Naomi Reice Buchwald, issued a 75 page opinion based on the parties motions for summary judgment (and stipulated facts) concluding that found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views. A unanimous panel of the Second Circuit affirms that decision.
The Second Circuit opinion, authored by Judge Barrington Parker, first considered the state action threshold. The government attorneys interestingly represented the President to argue that his account is nongovernmental. The court rejected the government attorneys' position that while the @realdonaldtrump Twitter account is not independent of Trump's presidency, that the specific act of blocking should not be considered state action. Further, the Second Circuit rejected the argument that because the person of Donald Trump established the account before becoming President and will retain control after he leaves the presidency, the @realdonaldtrump account must be considered "private" and not subject to the First Amendment: "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative." The court stated:
The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.”
Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.
The court then proceeded to the merits of the First Amendment claim, finding that viewpoint discrimination violates the First Amendment. Interestingly, it is for this proposition and only this one that the court cites the United States Supreme Court's closely divided case from last month, Manhattan Community Access Corp. v. Halleck. The Second Circuit easily finds the account creates a public forum. The Second Circuit noted that the government did not contest the district judge's conclusion that the plaintiffs were engaged in protected speech, but the government argued that the plaintiffs' speech was not burdened by being blocked. While the court stated that the government was correct that the plaintiffs did not have a First Amendment right to have the president listen to them,
the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
The court also rejected the government's position that the plaintiffs should employ "workarounds" such as creating new accounts, in large part because the government itself conceded that such workarounds burdened speech.
Finally, the Second Circuit rejected the argument that the Twitter account is government speech and thus not subject to the First Amendment. The court stated that while the president's initial tweets are government speech, the interactive features are decidedly not:
Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.
The Second Circuit ends with what might be considered a chastisement:
The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
Monday, June 24, 2019
SCOTUS Declares Lanham Act Provision Barring "Immoral" or "Scandulous" Trademarks Violates First Amendment
In its opinion in Iancu v. Brunetti the United States Supreme Court held that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks, violates the First Amendment.
Recall from the oral argument its centerpiece was the applicability of the Court's recent decision in Matal v. Tam (2017) which held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment. Justice Kagan's relatively brief — 11 pages — opinion for the Court begins with a citation to Tam and then states, "We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas."
At issue in Brunetti was a fashion line, which as Kagan explains:
uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).
Justice Kagan's opinion for the Court found the "immoral or scandalous" ban to be viewpoint-based with a viewpoint-discriminatory application. Kagan provides some examples of the inconsistencies, including the PTO refusing to register a trademark "Madonna" for wine while allowing "Praise the Lord" for a game. Further, the Court stated, the "immoral or scandalous" bar is "overly broad."
Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh joined in Kagan's opinion. But Alito wrote very briefly separately, disavowing the label of "moral relativism" that might be applied to the Court's opinion and making clear that Congress could adopt a more narrow statute. The other Justices wrote separate opinions concurring in part and dissenting in part.
The major dissenting opinion, by Justice Sotomayor concurring in part and dissenting in part, focuses on the "scandalous" provision, arguing that the Court's opinion means that the United States will have no choice but to begin registering marks "containing the most vulgar, profane, or obscene words and images imaginable." Sotomayor's opinion, joined by Breyer, and echoed in Chief Justice Roberts's opinion also dissenting in part, is longer than the Court's opinion, and argues that the Court should have accepted the narrowing construction of "scandalous" — "interpreting it to regulate only obscenity, vulgarity, and profanity" — which would save it from unconstitutionality. Sotomayor also discusses the special context of trademarks, which while not government speech, do have a type of governmental involvement. It is not that the speech is being prohibited, but only that the Lanham Act prohibited registration of the trademark.
[image: Kagan and Sotomayor, via]
Wednesday, June 5, 2019
In an Order in United States v. Rundo, United States District Judge Cormac J. Carney for the Central District of California dismissed an indictment against white supremacists Robert Rundo, Robert Bowman, and Aaron Eason, members of "Rise Above Movement" (RAM), concluding that the Anti-Riot Act, 18 U.S.C. §2101 violates the First Amendment as overbroad.
As Judge Carney explained in his relatively brief opinion, the Anti-Riot Act provides that:
Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent –
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph [(1)–(4)] . . . [s]hall be fined under this title, or imprisoned not more than five years, or both.
Moreover, after quoting the statute's definition to riot, Judge Carney explained,
to simplify, the Anti-Riot Act defines “riot” in two ways. A riot is a public disturbance involving acts of violence, committed by at least one person in a group, which results in property damage or personal injury. This first definition coincides with the common understanding of a riot––for instance, a crowd taking to the streets and smashing windows of a business. A riot also includes a public disturbance involving the threat of violence, by persons in a group, so long as at least one person could immediately act upon the threat. This second definition, for example, would apply to a group threatening to break the windows of a business, while the group is outside the business and holding rocks in their hands.
Yet, most troubling for Judge Carney was his interpretation that the statute "also criminalizes acts taken long before any crowd gathers, or acts that have only an attenuated connection to any riot, so long as the individual acts with the required purpose. See 18 U.S.C. § 2101(a). No violence even need to occur. A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting friends about when to meet up."
The problem for Judge Carney was that the statute has "no imminence requirement": "The Anti-Riot does not require that advocacy be directed toward inciting or producing imminent lawless action. It criminalizes advocacy even where violence or lawless action is not imminent." Thus, Judge Carney concluded that the Anti-Riot Act eviscerates the protections of speech in Brandenburg v. Ohio (1969). Further, Judge Carney rejected the government's argument that the Anti-Riot Act did include an imminence requirement, characterizing this as requiring "grammatical gymnastics—and some degree of hand waving–– " which the Judge was not willing to do. Judge Carney pointed out that under the Anti-Riot Act, the statement in Hess v. Indiana (1973) ("we'll take the streets later [or again]") would be criminalized, despite the United States Supreme Court's finding that such a statement did not meet the imminence requirement.
Finally, Judge Carney found that in balancing the "social costs" of upholding the statute or "striking it down," there were other laws— including state statutes — that could protect the public from violence or public disturbances, while enforcing the Anti-Riot Act substantially infringed on the rights of free speech and freedom of assembly. And while Judge Carney explicitly mentioned not condoning the message of the white supremacists and wrote that "one person's protest might be another person's riot," invoking controversial issues today such as "abortion, Black Lives Matter, climate change, or healthcare," his opinion is sure to be discussed as protecting right-wing protest.
Thursday, May 23, 2019
As anticipated, the Department of Justice has filed a superseding indictment against WikiLeaks founder, Julian Assange.
The 18 count indictment charges 17 violations of the Espionage Act, 18 U.S.C. §793, as well as one count of conspiracy to commit computer intrusion. The factual recitations revolve around Chelsea Manning occurring in 2010; other highly publicized allegations involving President Trump and Hillary Clinton do not make an appearance (and their names are not mentioned in the indictment).
The charges of unauthorized obtaining and receiving of "National Defense Information" (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues.
The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), "The Pentagon Papers" Case.
In Assange's situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).
This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck's 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.
Monday, May 20, 2019
Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders
The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.
The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:
The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers.
The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."
As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis):
Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.
Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:
The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.
Monday, May 13, 2019
The Court denied certiorari to the Ninth Circuit in Dahne v. Richey with a dissenting opinion by Justice Alito, joined by Justices Thomas and Kavanaugh. For the dissenters, the question was whether the First Amendment requires a "prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard?"
The Ninth Circuit's Memorandum Opinion did not characterize the prisoner's grievance as threatening, but instead stated that it included "rude comments about the guard’s weight, including describing her as “extremely obese." The dissenting opinion from certiorari and the Ninth Circuit opinion both agree that the prison official told the prisoner to rewrite the grievance, which the prisoner did, but did not cure the defects. For the Ninth Circuit, there was a First Amendment violation when the prison official refused to allow the grievance to proceed through the administrative process after the rewrite did not satisfy the official's "sense of propriety." For the Ninth Circuit, this meant that functionally only a grievance that conformed to an official's "personal conception of acceptable content could get meaningful review," which is "the sort of content-based discrimination that runs contrary to First Amendment protections."
But for Alito and his fellow dissenting Justices, the defects in the grievance offended more than a personal sense of propriety. Instead, the dissenters stated the grievance
contained language that may reasonably be construed as a threat. Specifically, the grievance stated: “It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
For the dissenters, even if "a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats? I doubt it, but if the Court is uncertain, we should grant review in this case."
Perhaps importantly, the Ninth Circuit in this Memorandum Opinion held there was qualified immunity, which could make the grant of review seem less vital. And while it is always precarious to extrapolate from any opinion to others, the dissent her does bring to mind the issues regarding the boundaries of First Amendment protection before the Court in the trademark case of Iancu v. Brunetti argued in April.
Friday, April 26, 2019
In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.
HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.
Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.
On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006). He concluded:
Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.” Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.
Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.
Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015). Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute. As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.
Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."
Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.
The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:
Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89. Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).
[some citations omitted].
Tuesday, April 23, 2019
Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation
In its opinion in Fulton v. City of Philadelphia, 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. Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation. The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing. On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.
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.”
On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.
And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.
Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.
This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied. Another certiorari petition is almost sure to follow the Third Circuit's decision.
April 23, 2019 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)
Saturday, April 20, 2019
The Fifth Circuit ruled earlier this week that a sheriff office's official Facebook page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court's denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)
The case, Robinson v. Hunt County, Texas, tested the Hunt County Sheriff's Office Facebook page. According to the page, "We welcome your input and POSITIVE comments regarding the Hunt County Sheriff's Office." Moreover, "We encourage you to submit comments, but please note that this is NOT a public forum." On January 18, 2017, the HCSO Facebook account posted this message:
We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.
Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson's post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.
The Fifth Circuit reversed as to the county. (Robinson didn't appeal as to the individual officers.) The court held that she sufficiently pleaded a constitutional violation, because the defendants' actions constituted viewpoint discrimination in violation of the First Amendment. The court said that the Facebook page was a public forum, and it didn't matter which kind (designated or limited), because either way viewpoint-based discrimination was impermissible. The court held that the policy constituted official policy (for purposes of Robinson's Section 1983 claim against the county), because Robinson "has plausibly alleged that Hunt County had an explicit policy of viewpoint discrimination on the HCSO Facebook page," through the sheriff's official control of the page.
The court sent the case back for further proceedings.
Monday, April 15, 2019
The United States Supreme Court hear oral arguments in Iancu v. Brunetti, a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks.
Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional. Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.
Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes. Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants — reappeared in the Brunetti argument.
The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).
Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words." While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.
While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.
Tuesday, April 9, 2019
The Brooklyn Law Review will host a symposium titled Incitement at 100--and 50--and Today: Free Speech and Violence in the Modern World on Friday, April 12, at Brooklyn Law School. Very impressive line up. RSVP at the link by April 10.
Friday, March 15, 2019
In his opinion in Cockrum v. Donald J. Trump for President, Inc., Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign. The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.
Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.
However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.
For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right. This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action. The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.
Counts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort. The court dismissed the state tort law claims without prejudice.
The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.
Thursday, March 14, 2019
In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.
Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court. Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.
In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.
Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.
The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:
Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."
But as the majority opinion explains,
the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1  [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).
The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt. For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."
All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.
Presumably, the case will be heard on appeal by New York's highest court.
[image: Richard Westall, Sword of Damocles, 1812 via]
The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.
The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.
Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.
As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.
As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."