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."
Tuesday, February 19, 2019
United States Supreme Court Justice Clarence Thomas, writing a concurring opinion from the denial of certiorari in McKee v. Cosby, has essentially called for an abandonment of First Amendment concerns in the torts of defamation and libel. Interestingly, the lawsuit involves a claim by McGee, who accused actor and comedian Bill Cosby of sexual assault, for defamation based on a letter from Cosby's attorney which allegedly damaged her reputation for truthfulness and honesty. The First Circuit, affirming the district judge, found that by making the public accusation, McKee became a "limited-purpose public figure" under First Amendment doctrine and therefore would have to show not only that the statements were false, but that they were made with actual malice (knowledge of falsity or reckless disregard for the truth).
McKee had sought review of the determination that she was a limited public figure. The Court declined. Justice Thomas's concurring opinion does not address this "fact bound inquiry," but instead argues that the Court should reconsider the doctrinal basis for the lower courts' decisions, including New York Times v. Sullivan (1964), which the opinion extensively discusses. In a nutshell, Thomas argues that New York Times v. Sullivan and its progeny are "policy-driven decisions masquerading as constitutional law": there was no "public figure" doctrine of libel at common law and an originalist understanding of the First Amendment does not extend to state law torts such as defamation and libel. While New York Times v. Sullivan may seem like settled precedent entitled to respect under stare decisis, Justice Thomas notes that the Court "did not begin meddling in this area until 1964, nearly 174 years after the First Amendment was ratified."
What should we make of this thirteen page concurring opinion? It can seem a gratuitous intervention in a case in which it would not make a difference. Or it can seem just another occasion for Justice Thomas to articulate his hallmark originalism. Or it could be an invitation for lower federal judges — and for litigators — to start challenging the First Amendment actual malice standard for defamation and libel more directly. Additionally, this position is quite consonant with the President's statements that libel laws need revision and Trump's reputation as a "libel bully," although perhaps cases such as Summer Zervos lawsuit against Trump — very similar to McKee's against Cosby — Trump would be disserved by a more common law approach. But in the cases in which Mr. Trump were the plaintiff, an absence of the burden of having to prove "actual malice" would certainly work to his benefit.
Tuesday, February 12, 2019
The Fourth Circuit rejected an eleventh-grade student's Establishment Clause and Free Speech Clause claims against school administrators and the district for including lessons on Islam in a world history course. The ruling ends the challenge and leaves the lessons in place.
The case, Wood v. Arnold, involves a particular reading and a separate particular exercise in a "Muslim World" unit within a larger world history class. The reading, which appeared on a PowerPoint slide, said, "Most Muslim's [sic] faith is stronger than the average Christian." (Underlining in original.) The exercise required students to fill in the blanks for this statement: "There is no god but Allah and Muhammad is the messenger of Allah." (Underlined words were blank in the original.)
A student challenged the two lessons under the Establishment Clause and Free Speech Clause. The Fourth Circuit rejected those claims.
The court ruled that, given the larger context, the lessons did not violate the Lemon test: they had a sufficiently secular purpose (to study comparative religions); they did not inhibit or advance religion (applying the endorsement test as the second prong under Lemon, they merely "identif[ied] the views of a particular religion," and didn't endorse those views); and they did not entangle government and religion (because they were not religious in the first place).
As to free speech, the court said that the fill-in-the-blank exercise didn't violate the student's right against compelled speech, because it was a school exercise that didn't require her to adopt any particular view.
Friday, February 1, 2019
In its en banc opinion in American Beverage Association v. City and County of San Francisco the Ninth Circuit unanimously found that the San Francisco ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance provided that advertisements for Sugar-Sweetened Beverages (SSB) include a warning:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
It further defined advertisements and importantly provided detailed instructions regarding the form, content, and placement of the warning on SSB Ads, including a requirement that the warning occupy at least 20% of the advertisement and be set off with a rectangular border.
Recall that the Ninth Circuit panel had similarly found that the SF ordinance most likely violated the First Amendment, reversing the District Judge's failure to grant a preliminary injunction.
The problem of the level of scrutiny to apply when the government compels speech in a commercial setting is one that has been reoccurring. In short, the choice of standards is between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Judge Graber noted that the Ninth Circuit had previously decided that the more lenient test of Zauderer applied in CTIA - The Wireless Ass'n v. City of Berkeley. However, a closely divided United States Supreme Court in National Institute of Family & Life Advocates (NIFLA) v. Becerra (2018), "applied the Zauderer test without deciding whether that test, in fact, applied" and found that a California statute mandating disclosures by crisis-pregnancy centers violated the First Amendment. But, according to Judge Graber's opinion, while NIFLA required the Ninth Circuit to reexamine the approach to challenges to compelled commercial speech, "nothing in NIFLA suggests that CTIA was wrongly decided," especially given the concern with health and safety warnings as permissible.
Under Zauderer, the usual factors require that the compelled disclosure be factual, non-controversial, and not unjustified or unduly burdensome, and then application of the lenient standard of a substantial government interest to which the mandated disclosure is reasonably related. Here, Judge Graber's opinion for the court concluded that the warning was unduly burdensome given the mandated size of the warning as 20% of the image.
While Judge Graber's opinion for the en banc court is relatively succinct, several other judges wrote opinions to disagree with the reasoning but not the result. Judge Sandra Ikuta, who authored the panel opinion, which was issued before the Supreme Court's opinion in NIFLA, argued that NIFLA provided a (new) framework mandating that the compelled speech regulation be considered a First Amendment content-based regulation subject to heightened scrutiny unless a Zauderer exception applies. In another concurring opinion, Judge Morgan Christen, joined by Chief Judge Sidney Thomas, agreed with the majority that Zauderer applied, but concluded that the warning did not survive the "purely factual" and "noncontroversial" factors of Zauderer. A third concurring opinion, authored by Judge Jacqueline Nguyen, objected to the application of Zauderer outside the context of false or misleading speech and argued that the more intermediate scrutiny test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) should apply.
These varying opinions suggest that the issue of the First Amendment consequences of states requiring warnings and thus arguably infringing commercial speech is far from resolved, although the agreement on the result here may mean that this is an unlikely case for Supreme Court review.
The Fourth Circuit ruled in McClure v. Ports that the Maryland Transit Authority didn't retaliate against a local union president in violation of the First Amendment when it revoked his access privileges to MTA property in reprisal for his protected speech. The court also dismissed the plaintiff's Fourth Amendment claim.
The case arose when David McClure, President of the Amalgamated Transit Union Local 1300, led a public advocacy campaign against unsafe MTA policies and operations. He later represented a worker in a disciplinary hearing, where the MTA claimed that he verbally harassed an MTA hearing officer.
Citing the harassment, the MTA required McClure to get permission before entering MTA's offices, and revoked his keycard access to its facilities. After McClure several times re-entered MTA properties without permission (in order to represent union workers), the MTA had him escorted out by police (the basis of his Fourth Amendment claim).
McClure sued, arguing that the MTA retaliated against him in violation of the First Amendment by requiring permission to enter its properties and by revoking his keycard access.
The Fourth Circuit disagreed. The court assumed that McClure engaged in protected speech, and that the MTA retaliated against him because of that speech. But it held that the MTA's retaliatory actions didn't amount to unconstitutionally adverse behavior. According to the court, that's because McClure's interest in maintaining access to MTA property was "slight when compared to the government's interest in regulating such access."
On the one side of the scale, the court said that McClure was never entitled to enter MTA property: the collective bargaining agreement permitted union representatives' access only on permission of the MTA; McClure could have represented union members at grievance hearings at off-site locations (an option that the MTA offered); and McClure's keycard access was extended simply by grace of the MTA. On the other side, the MTA's interest in restricting access to its property, including private offices and garages with heavy machinery, was "weighty."
Wednesday, January 16, 2019
The Fifth Circuit dismissed the free-speech claim of a state-court staff attorney who suffered reprisal for reporting judicial misconduct. The court ruled that the defendant, the court's chief justice, was entitled to qualified immunity, because the First Amendment law wasn't clearly established at the time of the reprisal.
The case arose when a "briefing attorney" for a state-court judge reported judicial misconduct on the part of the court's chief justice. The chief justice then arranged for the attorney not to be hired for a staff-attorney position in another judge's chambers. The attorney sued, arguing that the chief's actions amounted to retaliation for his free speech in violation of the First Amendment. The chief argued that the attorney's actions were governed by the state code of judicial conduct (which requires state judges and their staff to report judicial misconduct), that the speech was therefore pursuant to the attorney's "official duty," and that it was therefore unprotected.
The Fifth Circuit ruled that circuit law says that required disclosures are not part of an employee's "official duty" (and therefore are protected by the First Amendment), but that caselaw established this principle only after the chief's retaliation. As a result, the law wasn't "clearly established" when the chief retaliated, and he was therefore entitled to qualified immunity.
The court also ruled that the attorney's suit dodged Eleventh Amendment immunity problems under Ex Parte Young, because he sought only injunctive relief for an ongoing violation. But the relief he sought--appointment as a staff attorney for a judge on the court--was unavailable, because his original judge (the one who withdrew a job offer in light of the chief's retaliation) was no longer on the court, and because other judges selected their own staff attorneys. "There is no ongoing violation of federal law in the failure to hire Anderson for a different staff attorney position with a different judge."
The Sixth Circuit ruled today that a school district's exclusion of a non-preferred vendor from "Band Night" did not violate the First Amendment. In so ruling, the court rejected the vendor's sweeping free-speech claim that could have turned many contract disputes into First Amendment violations.
The case involved the Coopersville Area Public Schools' decision to limit participation at the District's "Band Night" to a single musical-instrument vendor. (The District previously opened Band Night to any vendors.) After conducting a competitive process, the District selected Meyer Music, and rejected a competitor, West Michigan Band Instruments, which had previously participated in Band Night. WMBI sued, arguing that its exclusion violated the First Amendment, because the exclusion meant that it couldn't promote its viewpoint (that it was the best musical-instrument vendor for band students and parents) at Band Night.
The court ruled that Band Night was either a limited public forum or nonpublic forum, and that the exclusion did not amount to viewpoint discrimination. The court said that WMBI failed to allege viewpoint discrimination, but, even if it did, "WMBI is a vendor who was excluded from a school forum, not because of its viewpoint, but because of its status as a non-preferred vendor who lost to Myer Music in the bidding process."
The court recognized that school districts put out bids for any number of different projects, and that a ruling in favor of WMBI could have transformed contract awards into First Amendment claims for the losing bidders.
Wednesday, January 9, 2019
In an Order in Animal Legal Defense Fund v. Reynolds, United States District Judge James Gritzner for the Southern District of Iowa declared Iowa Code § 717A.3, violated the First Amendment. The provisions, similar to ones in other states and popularly known ag-gag laws, were intended at least in part to prevent animal rights activists and others from, as one legislator stated, going out to "gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.” The law introduced the new crime of “agricultural production facility fraud” which would be committed if the person willfully:
- Obtains access to an agricultural production facility by false pretenses[, or]
Makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.
Judge Gritzner noted and relied upon other recent opinions including the Ninth Circuit's 2018 decision in Animal Defense League Fund v. Wadsen holding most of Idaho's ag-gag law violative of the First Amendment and the district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.
Judge Gritnzer rejected the argument that the Iowa statute regulated only conduct and found it to be a content-based regulation. But the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal, did not provide an easy answer to the level of scrutiny that should be applied to a content-based falsity regulation. So, much like the Ninth Circuit in Wadsen, Judge Gritnzer applied both strict scrutiny and intermediate scrutiny, concluding that the statutory provisions failed both. In short, the statute "is so broad in its scope, it is already discouraging the telling of a lie in contexts where harm is unlikely and the need for prohibition is small. The right to make the kinds of false statements implicated by § 717A.3A—whether they be investigative deceptions or innocuous lies—is protected by our country’s guarantee of free speech and expression."
Certainly the trend has been for courts to hold these ag-gag laws unconstitutional.
Friday, January 4, 2019
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]