Saturday, August 21, 2021

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

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

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

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

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

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

Ninth Circuit Tosses OAN's Defamation Suit Against Rachel Maddow

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

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

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

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

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

Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

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

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

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

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

Friday, August 20, 2021

Fifth Circuit Strikes Fee for Latex Clubs

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

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

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

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

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

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

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

Thursday, August 19, 2021

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

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

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

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

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

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

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

Saturday, August 14, 2021

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

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

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

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

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

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

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

Friday, August 13, 2021

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

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

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

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

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

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

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

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

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

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

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

Thursday, August 12, 2021

District Court Allows Dominion Defamation Suit to Move Forward

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

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

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

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

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

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

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

Monday, April 26, 2021

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

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

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

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

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

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

Wednesday, April 21, 2021

First Circuit Rebuffs Officer's Free-Speech Retaliation Claim

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

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

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

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

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

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

Monday, April 12, 2021

Seventh Circuit Says Governor Can Limit Media Access to Press Conferences

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

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

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

 

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

Friday, July 24, 2020

Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.

The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."

The TRO lasts for 14 days; the litigation will undoubtedly last much longer.

 

 

July 24, 2020 in Congressional Authority, Courts and Judging, Criminal Procedure, Federalism, First Amendment, Fourteenth Amendment, Speech, Standing | Permalink | Comments (0)

Tuesday, May 5, 2020

Argument Preview: Barr v. American Association of Political Consultants

The Supreme Court will hear oral arguments on Wednesday in Barr v. American Association of Political Consultants, Inc., the case testing whether the general ban on automated calls to cell phones in the Telephone Consumer Protection Act is an impermissible content-based restriction on speech because the Act exempts calls to collect government owned debt. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Congress enacted the Telephone Consumer Protection Act of 1991 (TCPA) in order to protect individuals from the “nuisance” and “invasion of privacy” wrought by automated calls. Among other things, the TCPA prohibits any automated call to any cell phone number, except calls made for an emergency purpose or with the express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). While Congress was particularly concerned about automated telemarketing calls, the automated-call restriction is not limited to calls made to sell goods or services. Congress delegated authority to enforce the TCPA to the Federal Communications Commission (FCC).

In 2015, Congress added an exception to the automated-call restriction for calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The provision, called the “government-debt exception,” was designed to help the United States collect on debts “as quickly and efficiently as possible.” As part of the provision, Congress authorized the FCC to issue regulations “restrict[ing] or limit[ing] the number and duration of” these calls, so that the FCC could “protect consumers from being harassed and contacted unreasonably.” FCC regulations limit the government-debt exception to only those calls involving delinquent debt that the United States owns or guarantees, and where a caller has authority to accept payment and the recipient has a responsibility to pay.

In 2016, a group of political organizations and an association of political consultants, fundraisers, and pollsters sued the Attorney General and the FCC, arguing that the automated-call restriction, as amended by the government-debt exception, was a content-based restriction on speech in violation of the First Amendment. The plaintiffs sought a declaratory judgment that the automated-call restriction was unconstitutional on its face.

The district court ruled in favor of the government. The Fourth Circuit vacated the judgment and remanded for further proceedings. (The Fourth Circuit ruled that the government-debt exception was an impermissible content-based regulation on speech. But it then severed that exception from the broader automated-call restriction, and sent the case back to the district court to determine whether the automated-call restriction, now without the government-debt exception, violated free speech.) This appeal followed.

CASE ANALYSIS

As a general matter, a content-based restriction on speech must be narrowly tailored, or necessary, to serve a compelling government interest. This test, called “strict scrutiny,” is the most demanding test known to constitutional law. It usually means that a content-based restriction on speech violates the First Amendment.

This case has a twist, though. The content-based portion of the automated-call restriction is in the government-debt exception (assuming, that is, that the government-debt exception is content-based—the first point of contention between the parties). The plaintiffs don’t challenge the government-debt exception alone (and that makes sense, because, after all, the exception allows speech); instead, they challenge the overall automated-call restriction based on the alleged impermissibly content-based government-debt exception.

And that leads to severability—the second point of contention between the parties. If the government-debt exception is a content-based regulation on speech, and if it therefore renders the entire automated-call restriction a content-based regulation on speech, then the Court may be able to save the automated-call restriction by simply extracting, or severing, the government-debt restriction—that is, by simply removing the offending portion.

The government argues that the government-debt exception is not a content-based restriction on speech. The government claims that the exception does not regulate speech based on its content, but rather based on “a certain kind of economic activity (the collection of government-backed debts).” To illustrate this point, the government says that the exception doesn’t apply unless the government owns or guarantees the debt, the caller has authority to collect the debt, and the debt is not delinquent—all requirements that do not relate to the content or message of the call. And to the extent that these requirements may touch on the content of the call, the government contends that these are not the kinds of things that typically trigger strict scrutiny.

Because the government-debt exception is not a content-based regulation of speech, the government argues that it is subject to a lower level of scrutiny, intermediate scrutiny, and that it passes. The government claims that the exception serves the “significant public and governmental interest in protecting the federal fisc,” and that the exception “directly advances” that interest by allowing automated calls to more efficiently collect on government debt. It says that the exception allows only a narrow range of calls for a limited purpose, and therefore sufficiently protects the privacy interests of those who are called.

Finally, the government argues that even if the government-debt exception is a content-based regulation of speech, the Court should sever it from the rest of the TCPA and leave the automated-call restriction intact. The government claims that the Act itself contains a severability provision that unambiguously requires severability, and that the history and purposes of the TCPA confirm “that Congress would have wanted the automated-call restriction to remain in effect independently of the government-debt exception.” (The government points to the fact that the automated-call restriction was on the books for 24 years before Congress added the government-debt exception.) The government contends that when the Court severs the government-debt exception, it removes the content-based regulation on speech (again, only assuming that the government-debt exception is a content-based regulation on speech) so that it can’t infect the rest of the Act—and so that the automated-call restriction can continue to stand.

The plaintiffs counter that the automated-call restriction is an impermissible content-based restriction on speech. The plaintiffs point to the government-debt exception to illustrate this. In short, they say that the automated-call restriction, including its government-debt exception, allows speech that “discusses only the collection of government-backed debt” but disallows speech on any other topic. The plaintiffs contend that fails strict scrutiny, because the government doesn’t have a compelling interest in protecting the public from unwanted communication, and, in any event, the “sweeping prohibitions” under the automated-call restriction “are far from the least restrictive means of furthering that interest.” (Indeed, they argue that “the statute is so hopelessly ill-tailored to the Government’s asserted privacy interest that [the automated-call restriction] fails any level of scrutiny.”)

The plaintiffs argue that the only appropriate remedy is to strike the automated-call restriction. They claim that Court precedent supports the idea that when a statute restricts speech based on content with exceptions that allow speech, the Court strikes the restriction, not the exceptions. Moreover, they claim that it’s the automated-call restriction, and not the government-debt exception, that harms them. The plaintiffs contend that the content-based discrimination reflected in the government-debt exception shows that the overall automated-call restriction is also content-based, and therefore unconstitutional. They assert that severing the government-debt exception (the provision that allows more speech) only to uphold the automated-call restriction (the provision that allows less speech) makes no sense when the First Amendment protects free (or more) speech.

Finally, the plaintiffs argue that the automated-call restriction violates free speech even if the Court severs the government-debt exception. They claim that the automated-call restriction is itself a content-based restriction on speech (even without considering the government-debt exception), and that it is “far broader than necessary to advance the narrow privacy interests the Government asserts.”

SIGNIFICANCE

This ruling could have immediate and all-too-palpable significance for the estimated 96 percent of people in the United States who have a cell phone. Perhaps to state the obvious: a ruling for the plaintiffs could allow automated political calls to cell phones, right as the 2020 election goes into full swing. This could be a huge boon to those who seek to use automated-calling technology for political purposes (like the plaintiffs in this very case), but it could also be a huge drag to cell phone users who wish to avoid an onslaught of political calls on a device that was previously protected from them.

A ruling for the plaintiffs would effectively open up calls for other purposes, too, including commercial solicitations, advertisements, surveys, and the like.

But this is only if the Court rules (1) that the government-debt exception is a content-based restriction on speech, (2) that the government cannot justify the exception under strict scrutiny, and (3) that the government-debt exception therefore renders the entire automated-call restriction irremediably unconstitutional (because the government-debt exception cannot be severed). This is a tall order, even for a Court that has in recent years demonstrated an extreme preference for a free and open “marketplace of ideas”—and an equally extreme distaste for all manner of content-based regulations on speech.

Taking a step back from the particulars of First Amendment doctrine, here’s another way to think about this case: as a balance between, on the one hand, a free and open marketplace of ideas, involving our most highly valued speech (political speech), and, on the other, our need for and expectation of privacy from automated calls on our cell phones. At what point does the marketplace of ideas run into our expectation of privacy, on this especially private device?

May 5, 2020 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Monday, May 4, 2020

Argument Preview: USAID v. Alliance for Open Society Int'l

The Supreme Court will hear oral arguments tomorrow in USAID v. Alliance for Open Society International, the case testing whether the First Amendment bars Congress from restricting federal funds to fight HIV and AIDS abroad to foreign affiliates of U.S. nongovernmental organizations that have a policy opposing prostitution and sex trafficking. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 2003, in order to fight the global HIV and AIDS pandemic, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. Under the Act, Congress has provided billions of dollars to fight HIV and AIDS abroad through increased treatment, efforts to prevent new infections and initiatives to “support the care for those affected by the disease.”

As part of its detailed factual findings in support of the Act, Congress determined that women were particularly vulnerable to HIV and AIDS. As relevant here, Congress identified “[p]rostitution and other sexual victimization,” including sex trafficking, as significant harms to women and children. The Act accordingly states that it “should be the policy of the United States to eradicate” the practices of “[p]rostitution and other sexual victimization.”

As part of its findings, Congress also determined that “[n]ongovernmental organizations . . . have proven effective in combating the HIV/AIDS pandemic” and are “critical to the success of . . . efforts to combat HIV/AIDS.” The Act accordingly “enlist[s] the assistance of nongovernmental organizations to help achieve the many goals of the program.”

But the Act establishes two conditions on its funds. First, the Act prohibits funds to “be used to promote or advocate the legalization or practice or prostitution or sex trafficking.” Second, at issue here, the Act specifies that no funds “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking,” with certain exceptions not relevant here. The parties refer to this second condition as the “Policy Requirement.” In order to enforce the “Policy Requirement,” the U.S. Department of Health and Human Service and the U.S. Agency for International Development directed that the recipient of any funding under the Act certify in the funding contract that it is opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.”

In 2005, the Alliance for Open Society International and Pathfinder International, domestic NGOs that work to combat HIV and AIDS overseas, sued the government, arguing that the Policy Requirement violated their First Amendment rights. (The plaintiffs did not, and do not, support prostitution or sex trafficking, but they worried that complying with the Policy Requirement “may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.”) As the case worked its way through the courts, the government adopted “Affiliate Guidelines” to try to accommodate the plaintiffs’ concerns. These Guidelines allowed domestic NGOs (like the plaintiffs) to “maintain an affiliation with separate organizations that do not have such a policy,” so long as those organizations met certain conditions. The Guidelines thus allowed domestic NGOs to abide by the Policy Requirement while working with foreign affiliates that could express their own views on prostitution. The plaintiffs argued that the Policy Requirement still violated their First Amendment rights, even with the Guidelines, in large part because the Guidelines required such a degree of separation between the plaintiffs and their affiliates that the affiliates’ speech could not stand-in for the plaintiffs’ own message.

The Supreme Court agreed. The Court first noted that as a general matter the government may place conditions on the receipt of federal funds, even when a condition may affect a recipient’s exercise of First Amendment rights. The Court said that these conditions merely “define the limits of the government spending program” by “specify[ing] the activities that Congress wants to subsidize.” But here, the Court held that the Policy Requirement sought “to leverage funding to regulate speech outside the contours of the program itself.” In other words, the Policy Requirement regulated more speech than necessary to define the program. As to the Affiliate Guidelines, the Court wrote,

When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy. The guidelines themselves make that clear.

As a result, the Court ruled that the Policy Requirement violated the plaintiffs’ First Amendment rights and affirmed a preliminary injunction halting its enforcement against them. Alliance I, 570 U.S. 205 (2013).

After the Court ruled in Alliance I, in September 2014, HHS and USAID issued funding notices that explicitly exempted all domestic NGOs from the Policy Requirement but continued to apply the Requirement to foreign NGOs, including the plaintiffs’ affiliates. The plaintiffs sued again, arguing (for the first time) that the Policy Requirement’s application to their foreign affiliates violated their own First Amendment rights. In short, the plaintiffs said that their close affiliation with foreign NGOs meant that those NGOs’ certification under the Requirement could be imputed to them.

The district court agreed. The court applied the Court’s ruling in Alliance I and issued a permanent injunction, halting the government’s application of the Policy Requirement to the plaintiffs’ foreign NGO affiliates. (During the district court proceedings, the parties attempted to agree upon a definition of “affiliate” that would resolve the plaintiffs’ complaint. They apparently failed.) The United States Court of Appeals for the Second Circuit affirmed. This appeal followed.

CASE ANALYSIS

The government argues that it can apply the Policy Requirement to foreign entities operating abroad under basic constitutional principles. It first points out that as a general matter the government can set limits on the use and distribution of federal funds, and that recipients who object to those limits can simply decline the funds. It next notes that this general principle sometimes gives the government the ability to put unconstitutional conditions, including violations of the First Amendment, on the receipt of federal funds. But the government argues that the unconstitutional conditions doctrine only applies to recipients that actually have constitutional rights. It contends that foreign entities operating abroad have no such rights. Therefore, it contends that its denial of funds based on a foreign entity’s failure to comply with the Policy Requirement cannot violate that foreign entity’s First Amendment rights.

The government argues that the Third Circuit got it wrong when it held that the First Amendment bars enforcement of the Policy Requirement against the plaintiffs’ foreign affiliates, because such enforcement violates the plaintiffs’ own free speech rights. The government contends that “[n]o legal principle supports that proposition.” It claims that the plaintiffs themselves acknowledged that they are legally distinct from their foreign affiliates, and that basic tenets of corporate law reinforce that conclusion. The government says that the Court cannot treat the plaintiffs and their affiliates as a single entity, because, again, corporate law does not permit legally distinct entities to be treated as one, even if, as here, they share similar names, logos, and brands. The government asserts that the Court “has repeatedly enforced corporate separation even when presented with closer affiliations.”

The government argues that nothing in Alliance I suggests the contrary. The government claims that the Court in that case said nothing about whether the government could require foreign affiliates to adopt the Policy Requirement, and that it only considered affiliated organizations (in the passage quoted above) in order to show that their own speech could not alleviate any First Amendment problem with applying the Policy Requirement to the plaintiffs. The government says that this analysis has no bearing on this case, because the government now does not apply the Policy Requirement to domestic NGOs (and so there is no need to analyze whether their foreign affiliates might speak for them).

Finally, the government argues that there is no other basis to invalidate the application of the Policy Requirement to domestic NGOs. It says that such an application does not undermine the goals of the Leadership Act (as the plaintiffs contend), because, after all, Congress itself wrote the Policy Requirement into the Act. In any event, the government claims that efforts to eradicate prostitution and sex trafficking are perfectly consistent with a fight against HIV and AIDS, and that it has applied the Policy Requirement to foreign entities since the Leadership Act was enacted, without hindering that fight.

The plaintiffs counter that the government’s application of the Policy Requirement to their foreign affiliates infects their own speech in violation of the First Amendment. The plaintiffs say that the Policy Requirement, unlike a restriction on speech, necessarily taints all “clearly identified” affiliates, no matter where they operate, including the domestic plaintiffs themselves. They contend that the Court recognized this in Alliance I (again, in the passage quoted above), and that the government’s enforcement of the Policy Requirement to their foreign affiliates overseas therefore necessarily infringes on their own First Amendment rights.

The plaintiffs argue that this analysis is consistent with the more general constitutional prohibition on government forcing citizens to express views that they find objectionable. The plaintiffs contend that compelled speech (in contrast to restricted speech) “imprint[s] the speaker itself with the government’s view and depriv[es] the speaker and those to whom its speech is attributed of control over their message.” They say that the courts can’t remedy compelled speech by simply opening alternative channels for speech (as they can with restricted speech). Instead, the plaintiffs claim that the courts “must ensure that the government’s viewpoint is no longer forcibly imputed to the speaker.”

The plaintiffs argue that the record supports their points. They contend that they and their foreign affiliates are “unified organizations,” with “the same name, brand, and logo,” and that they “speak as one.” The plaintiffs say that the government’s own affiliate regulations make this clear: under those regulations, affiliates “must maintain objective independence from any entity that does not adhere to the recipient’s anti-prostitution pledge.” The plaintiffs claim that without an injunction against the enforcement of the Policy Requirement to their foreign affiliates, they have to “conform [their] own speech and conduct to [their] affiliate’s pledge to keep from jeopardizing not only their shared identity and reputation as a global public-health organization but also their federal funding.” The plaintiffs contend that formal legal separation with their affiliates does not change any of this: “[a]n organization-wide affirmation of belief will necessarily be attributed to any clearly identified components of the organization, regardless of their corporate structure.”

Finally, the plaintiffs assert that the government’s other arguments have no merit. They say that nothing in the record supports the government’s claim that upholding the injunction would undermine the Leadership Act or foreign aid more generally. They also say that nothing in the record supports the government’s “specter of sham affiliations,” especially given that the plaintiffs  are “well-known, steadfast partners that for nearly two decades have worked with the government to save millions of lives.”

SIGNIFICANCE

For the plaintiffs, the Policy Requirement, however the government enforces it, has always been a significant impediment to their hard-won relationships and credibility, and therefore to their tireless and sustained efforts, in their fight again HIV and AIDS around the world. That’s no small thing: the plaintiffs are major players in this global fight and, as they say, have been working with the government “for nearly two decades . . . to save millions of lives.” Moreover, for the plaintiffs and the communities they serve, the plaintiffs are one with their foreign affiliates. They not only share the same name, brand, and logo; they also share the same approach and messaging. For the plaintiffs, their legal distinction from their foreign affiliates is a mere formality, driven by the international, or multi-national, nature of their work, and the government’s enforcement of the Policy Requirement against their foreign affiliates is simply an attempt to sidestep the principles in Alliance I.

On the other side, for the government this case is about enforcing the Policy Requirement—and thus cracking down on prostitution and sex trafficking in the fight against HIV and AIDS—in whatever ways remain available after Alliance I. For the government, this objective is an essential part of the fight against HIV and AIDS under the Leadership Act, and enforcing the Policy Requirement against foreign entities is simply its way of fully enforcing the Act.

In short, this case is much more than a mere postscript to Alliance I. Indeed, for both sides, this case amounts to an entirely new challenge to, or defense of, the Policy Requirement. And the Court’s ruling will be every bit as important as its earlier ruling in Alliance I.

May 4, 2020 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Tuesday, February 25, 2020

SCOTUS Hears Oral Arguments in First Amendment Challenge to Crime of Encouraging or Inducing Immigration Violation

The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who

encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.

The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."

The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute.  The Deputy Solicitor General argued that the statutory provision was not aimed at speech and did not encompass "substantial amounts of it," and if it did, courts could remedy those situations with as-applied challenges rather than the "last resort remedy of overbreadth invalidation." Arguing for the Respondent, who had been convicted of two counts of the crime, Mark Fleming contended that the words of the statute — "encourages or induces" — are much broader than usual criminal words such as "solicitation" or "aiding and abetting." Fleming emphasized that the "even accurate advice" encouraging someone to stay in the United States is criminalized, including a teacher who says to an undocumented student that she should stay and pursue her education.

The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that

because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.

(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:

There's a teenager who's -- who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.

Alito asked:

Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Page1-926px-Welcome_to_the_United_States_-_A_Guide_for_New_immigrants.pdfNevertheless, whether or not the statute would be used that way, or to prosecute people based only on their speech, Fleming pointed to United States v. Stevens, involving the "crush-porn" statute which the Court found unconstitutional, noting that the "first Amendment does not require us to rely on the grace of the executive branch." Interestingly, after Stevens, Congress did pass a more narrow statute which has been upheld.  That experience would surely be on some of the Justices' minds as they consider Chief Justice Roberts's comments about whether the extent to which the statute might be rewritten would need to be "passed by the Senate and House" and "signed by the President," garnering laughter in the courtroom.

Yet Fleming also noted that the government has recently made a "focus" of the enforcement of immigration laws and should the Court uphold the statute, more robust enforcement would likely follow. Given the current controversies around immigration, that would surely also be on the minds of the Justices.

February 25, 2020 in Criminal Procedure, First Amendment, Interpretation, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, January 10, 2020

SCOTUS Will Hear First Amendment Challenge to Federal Robo-Call Law

The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).

The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.

The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.

The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015).  Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based.  The panel stated:

Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.

Candlestick_Telephone_with_Note_PadImportantly, as the district judge noted:

a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited  technology, with the sole distinction being that the first call relates to a loan guaranteed  by the federal government, while the second call concerns a commercial loan with no government guarantee.

Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:

It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.

However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added,  the automated call ban was “fully operative.”

The United States Supreme Court has now added this case to its 2019-2020 Term.

January 10, 2020 in First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Sunday, December 29, 2019

Ninth Circuit Says Public Union Not Retrospectively Liable for Mandatory Dues

The Ninth Circuit ruled last week in Danielson v. Inslee that a public sector union is not liable for mandatory union dues paid before the Supreme Court struck mandatory union fees in Janus. The ruling follows a similar one in the Seventh Circuit.

Recall that the Supreme Court ruled in 2018 in Janus v. AFSCME that public sector unions could not collect mandatory fair-share fees (fees used for collective bargaining activities) consistent with the First Amendment. The ruling overturned the 1977 case Abood v. Detroit Board of Education, which upheld mandatory fees against a First Amendment challenge.

After Janus, public sector unions stopped collecting the fees. But some public sector employees sued for pre-Janus fees paid. That's what happened in the Seventh Circuit, which led that court to hold that unions weren't on the hook for pre-Janus fees. And it's what happened in the Ninth Circuit, too.

The Ninth Circuit held that the union could invoke a good-faith defense against the plaintiffs' claims, relying on the pre-Janus state of the law to continue to collect mandatory fair-share fees. As to the strong hints from the Court even before 2018 that fair-share fees were on the chopping block, the Ninth Circuit said,

Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled. We agree with our sister circuit that "[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future."

The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon.

December 29, 2019 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, December 12, 2019

D.C. Circuit Rebuffs Vaping Industry's Free Speech Challenges to Tobacco Control Act

The D.C. Circuit this week rejected First Amendment challenges by the vaping industry to two key provisions of the Tobacco Control Act. The ruling affirms the FDA's authority to require premarket review of vaping products and to ban the distribution of free samples of vaping products.

The case tests two provisions of the TCA. The first provision requires FDA premarket review of all new tobacco products, including e-cigarettes. The Act has three pathways for premarket review, depending on the type of tobacco product. Products designed for recreational use (like traditional cigarettes) get the easiest path of review; products marketed as safer than existing tobacco products ("modified risk" products) get a mid-level path; and products marketed as smoking cessation products get the most demanding path for review. The second provision bans the distribution of free samples.

Plaintiffs, a vaping manufacturer and a vaping industry group, argued that the two provisions violated the First Amendment. In particular, they claimed that the FDA uses a manufacturer's own claims about its product to designate an appropriate premarket review pathway (the modified risk pathway in this case), in violation of free speech. They contend that the ban on free samples impermissibly restricts their free expression. The D.C. Circuit flatly rejected the claims.

As to the premarket review requirement, the court cited circuit precedent that "explicitly approves the use of a product's marketing and labeling to discern to which regulatory regime a product is subject, and to treat it as unlawful insofar as it is marketed under a different guise." But in any event, the court also held that the requirement met Central Hudson's commercial speech test: "[E]ven if we were to scrutinize the FDA's reliance on new tobacco product descriptors as a burden on the Industry's commercial speech, the modified risk product pathway clears First Amendment scrutiny because it is reasonably tailored to advance the substantial government interest in protecting the public health and preventing youth addiction."

As to the ban on free samples, the court explained that this provision regulates conduct, not speech, and that the conduct has no obvious expressive value. The court rejected the plaintiffs' argument that free samples are "the most effective and efficient means of obtaining product-specific information when trying to switch away from deadly cigarettes":

The Industry thus appears to be urging us to afford constitutional protection to the informational value of customers' experience trying out vaping, including the experience of sampling the available flavors and sensations.

This extraordinary argument, if accepted, would extent First Amendment protection to every commercial transaction on the ground that it "communicates" to the customer "information" about a product or service. Even if we could bridge the gap between the opportunity to use a product and the expression of an "idea," the Supreme Court has long rejected the "view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 

But even if the free-sample ban imposed an incidental burden on speech, the court held that "the restriction itself applies to conduct and is imposed 'for reasons unrelated to the communication of ideas.'"

December 12, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, December 11, 2019

District Judge finds First Amendment Problem with Arkansas "Misrepresentation" of Foods Statute

In an opinion in Turtle Island Foods SPC d/b/a Tofurky Co. v. Soman, Judge Kristine Baker of the Eastern District of Arkansas considered a First Amendment challenge to >Arkansas Code §§ 2-1-305(2), (5), (6), (8), (9), and (10). The provisions prohibit misbranding or misrepresenting agricultural products; central to the issue was subsection 6 which prohibits

Representing the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids.

Judge Baker considered seven labels for products she referred to as “Veggie Burger,” “Deli Slices,” “Chorizo Style Sausage,” “Slow Roasted Chick’n,” “Original Sausage Kielbasa,” “Hot Dogs,” and “Vegetarian Ham Roast.” These products were not derived from "harvested livestock, poultry, or cervids" and were vegetarian.

After finding that Tofurky had standing and that abstention was not appropriate, Judge Baker analyzed the merits of the First Amendment claim. The parties agreed and the court found that the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), for commercial speech governed:

  • (1) whether the commercial speech at issue concerns unlawful activity or is misleading;
  • (2) whether the governmental interest is substantial;
  • (3) whether the challenged regulation directly advances the government’s asserted interest; and
  • (4) whether the regulation is no more extensive than necessary to further the government’s interest.

Arkansas argued that the first prong regarding misleading speech was not satisfied and thus the speech did not warrant First Amendment protection, but Judge Baker found that taken as a whole the labels were not misleading:

It is true, as the State contends, that these labels use some words traditionally associated with animal-based meat. However, the simple use of a word frequently used in relation to animal-based meats does not make use of that word in a different context inherently misleading. This understanding rings particularly true since the labels also make disclosures to inform consumers as to the plant-based nature of the products contained therein.

The “Veggie Burger” label has the word “veggie” modifying the word “burger” and includes the words “all vegan” in the middle of the package. Further, the “Veggie Burger” label features the words “white quinoa” next to a picture of the burger. The “Deli Slices” label also includes the words “all vegan” in the middle of the label, features the words “plant-based” next to a picture of the product, and describes the product as “smoked ham style.” (emphasis added). The “Chorizo Style Sausage” label includes the words “all vegan” and states that the product was “made with pasture raised plants.” The “Slow Roasted Chick’n” label has the words “all vegan” right next to the product’s name and describes the product as “plant-based” in the bottom left corner. The “Original Sausage Kielbasa” label includes the words “all vegan” next to the word “sausage” and identifies the product as “Polish-style wheat gluten and tofu sausages.” The “Hot Dogs” label has the words “all vegan” next to the word “dogs” and “plant-based” under the word “dogs.” The “Vegetarian Ham Roast” has the word “vegetarian” modifying the words “ham roast.” Each of these labels also feature the letter “V” in a circle on the front of the packaging, a common indicator that a food product is vegan or vegetarian. Finally, each of these labels feature the company name “Tofurky,” which clearly contains the word “tofu” in a play on the word “turkey.”

Applying the other prongs of Central Hudson, Judge Baker found that while the state had an interest in preventing misleading labels, the statute did not substantially further that interest (given that these labels were not misleading), and that a ban on these descriptions was more extensive than necessary.

Thus, Judge Baker issued a preliminary injunction, finding that the factors for a preliminary injunction had been met.

Screen Shot 2019-12-11 at 8.10.04 PM

[image via]

 

December 11, 2019 in First Amendment, Food and Drink, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, October 24, 2019

Illinois Supreme Court Upholds State Revenge Porn Law

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."

October 24, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)