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]
Tuesday, December 4, 2018
The Ninth Circuit ruled in U.S. v. Sineneng-Smith that a federal statute that criminalizes "encourag[ing] or induc[ing]" an alien to come to, to enter, or to reside in the United States violates the First Amendment. The court ruled that the statute was unconstitutionally overbroad and struck it.
The statute, 8 U.S.C. Sec. 1324(a)(1)(A)(iv), permits a felony prosecution of any person who "encourages or induces an alien to come to, enter, or reside in the United States" if the encourager knew, or recklessly disregarded "the fact that such coming to, entry, or residence is or will be in violation of law."
The court held that the law bans substantially more speech than the First Amendment allows under the incitement doctrine, or as speech integral to criminal conduct. (The court reminds us that simply being in the United States isn't a crime.) Here's an example the court quotes from an amicus brief: "a loving grandmother who urges her grandson to overstay his visa," by saying "I encourage you to stay." The statement violates Subsection (iv), but:
Again, in Williams, the Supreme Court used almost identical language--"I encourage you to obtain child pornography"--to describe abstract advocacy immune from government prohibition. The government has not responded persuasively to this point; it simply argues that the grandmother would not be subject to criminal charges because her statement was "not accompanied by assistance or other inducements." However, as we have detailed above, Subsection (iv) does not contain an act or assistance requirement.
Another example: "marches, speeches, publications, and public debate expressing support for immigrants." And other: an attorney who tells a client that the client should remain in the country while contesting removal, because non-citizens in the U.S. have greater due process rights than non-citizens outside the U.S.
The court rejected the government's limiting interpretation--that the statute only prohibits a person from (1) knowingly undertaking (2) a non-de-minimis (3) act that (4) could assist (5) a specific alien (6) in violating (7) civil or criminal immigration laws--as wholesale rewriting the law.
The Ninth Circuit ruled in Soltysik v. Padilla that the lower court didn't sufficiently weigh the evidence in a candidate's challenge to California's rule that only candidates who "prefer" a recognized political party can list that party as their "preference" on the ballot.
The ruling means that the lower court will take a second crack at the case.
The case tests California's law that allows candidates who prefer a recognized political party to list that party on the ballot, but requires candidates who prefer a nonrecognized party to list their preference as "none." (California has voter-nominated (not party-nominated) primary process, and primary candidates list their "preference" for a party (and not their designation as the party's nominee).) Under the rule, Soltysik, a candidate for the state assembly who preferred a nonrecognized party (the Socialist Party USA), had to list "Party Preference: None" next to his name on the ballot. He argued that this violated free association, equal protection, and free speech.
The district court, applying the Burdick/Anderson sliding-scale test, deferred to the state and dismissed the case. The Ninth Circuit reversed and remanded.
The Ninth Circuit held that the burden on Soltysik's rights "is not severe," but that "it is more than 'slight,' warranting scrutiny that is neither strict nor wholly deferentially." The court then recognized that the state's interest in avoiding voter confusion is important; but it also said that the rule seems to have the opposite effect--to create confusion--and that the state may have other ways to achieve its interest.
In any event, the court held that the parties didn't get the chance to develop evidence to support their positions, because the lower court dismissed the case before discovery. So the court remanded for further proceedings.
Judge Rawlison dissented, arguing, among other things, that the court applied too high a level of scrutiny in evaluating the rule.
Wednesday, November 28, 2018
Ninth Circuit Upholds Alaska's Contribution Limits, Except its Nonresident Aggregate Contribution Limit
The Ninth Circuit ruled in Thompson v. Hebdon that Alaska's person-to-candidate, person-to-non-political-party-group, and political-party-to-candidate contribution limits were valid. But at the same time the court struck the state's nonresident aggregate contribution limit as a violation of free speech.
The case tested four separate provisions of Alaska's campaign finance law.
The first provision limits individual contribution to candidates to $500. Based on trial court evidence, the Ninth Circuit held that the limit was "narrowly focused" to address actual and potential quid pro quo corruption in the state. As to the amount, the court noted that $500 was low, but not unreasonably so, and still allowed candidates plenty of opportunities to fund their campaigns. The court rejected the plaintiffs' argument that the cap should be measured in comparison to the prior limit, $1,000, and that the state should justify the drop.
The second provision limits individual contributions to non-party organizations to $500. The court upheld this limit as a measure designed to avoid circumvention of the individual contribution limit, above. "We conclude that Alaska has demonstrated the same interest here where the risk of circumvention of the individual-to-candidate limit is apparent: under Alaska law, any two individuals could form a 'group,' which could then funnel money to a candidate. Such groups could easily become pass-through entities for, say, a couple that wants to contribute more than the $500 individual-to-candidate limit."
The third provision limits political party contributions to candidates to $5,000. The court rejected the plaintiffs' argument that this amounts to discriminatory treatment (in comparison to labor-union PACs), but noted that its ruling doesn't foreclose a challenge to the dollar amount.
Finally, the fourth provision limits nonresident aggregate contributions to $3,000. Here's why:
Alaska fails to show why an out-of-state individual's early contribution is not corrupting, whereas a later individual's contribution--i.e., a contribution made after the candidate has already amassed $3,000 in out-of-state funds--is corrupting. Nor does Alaska show that an out-of-state contribution of $500 is inherently more corrupting than a like in-state contribution--only the former of which is curbed under Alaska's nonresident limit. Alaska fails to demonstrate that the risk of quid pro quo corruption turns on a particular donor's geography. Accordingly, while we do not foreclose the possibility that a state could limit out-of-state contributions in furtherance of an anti-corruption interest, Alaska's aggregate limit on what a candidate may receive is a poor fit.
Chief Judge Thomas concurred on the first three provisions, but dissented on this last one. Judge Thomas argued that the limit furthered the state's interests in actual quid pro quo corruption and its appearance and its interest in preserving "self-governance."
Tuesday, September 11, 2018
In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.
The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"
After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."
Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.
Thursday, August 23, 2018
In its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit reversed the district judge and found that the nature of the activity of Fort Lauderdale Food Not Bombs (FLFNB), "combined with the factual context and environment in which it was undertaken, lead to the conclusion" that FLFNB engaged in a "form of protected expression" under the First Amendment, quoting Spence v. Washington (1974).
As the opinion notes, the panel was resolving "the issue left undecided" in First Vagabonds Church of God v. City of Orlando, Florida (11th Cir. 2011) (en banc). The en banc circuit had stated it need not decide whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct, because even assuming it was, the prohibition was constitutional as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct under United States v. O’Brien (1968).
Here, Judge Adalberto Jordan writing for the unanimous panel begins:
In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).
As to the particularized message requirement for expression, the court stated that it was sufficient that a reasonable observer would infer the precise message intended:
We decline the City’s invitation to resurrect the Spence requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in Hurley [v. Irish-Am. Gay, Lesbian & Bisexual Grp. (1995)], 515 U.S. at 569 (a “narrow, succinctly articulable message is not a condition of constitutional protection”), and it is not appropriate for us to bring it back to life.
Having resolved the expressive conduct issue, the Eleventh Circuit panel remanded the question of whether the Fort Lauderdale ordinance and park rule violated the First Amendment or was unconstitutionally vague.
Wednesday, August 22, 2018
In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party.
In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment. The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002. The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence." The court summarized the state of First Amendment law after Black:
First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts.
For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "not only through use the officers’ names, but via other facets of the lyrics. They reference Appellant’s purported knowledge of when the officers’ shifts end and, in light of such knowledge, that Appellant will “f--k up where you sleep.”
A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints." Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were
not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.
Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.
The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.
Saturday, August 18, 2018
The D.C. Circuit ruled in American Freedom Defense Initiative v. WMATA that the D.C. Metro's restriction on certain advertisements was a view-point neutral regulation in a nonpublic forum. But the court nevertheless remanded the case for a determination whether the restriction was "reasonable."
The ruling sends the case back to the district court for further proceedings. "Reasonableness" is usually a very low bar (thus favoring Metro), but the Court just this Term determined that a view-point neutral regulation in a nonpublic forum wasn't "reasonable." That case, Minnesota Voters Alliance v. Mansky, leaves the door cracked for AFDI on remand.
The ruling follows the recent Archdiocese of Washington v. WMATA, where the same court ruled that Metro's restriction on religious advertising was a permissible view-point neutral regulation in a nonpublic forum.
The AFDI case arose when AFDI sought to place an ad on Metro that, according to AFDI, was designed to "make the point that the First Amendment will not yield to Sharia-adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials." Around the same time, Metro was considering restricting ads, given the increasing number of complaints about ads disrespecting President Obama and ads on hot-button issues. A Metro employee told the Board that AFDI's proposed ad was the "straw that broke the camel's back," and the Board approved a temporary moratorium. The Board then rejected AFDI's ad under the moratorium, and later issued permanent restrictions on certain ads. The permanent policy, now in place, prohibits ads on "an issue on which there are varying opinions," politics (pro or con any candidate), religion (again, pro or con), and "industry position[s] or industry goal[s] without direct commercial benefit to the advertiser" (again, pro or con).
AFDI sued, arguing that the moratorium (but not the permanent policy) violated the First Amendment.
The court ruled first that the case was not moot. The court said that the permanent policy represented the same restrictions under the moratorium, and so AFDI's claim against the moratorium was still a live dispute, but now against the permanent policy. (Judge Karen LaCraft Henderson dissented on this point and thus would have dodged the merits.)
The court next said that Metro was a nonpublic forum (under Archdiocese of Washington), and that the restrictions were view-point neutral. The court rejected AFDI's arguments that the policy was view-point discriminatory because (1) Metro adopted the policy in response to AFDI (no evidence of this, and the straw-that-broke-the-camel's-back comment only meant that AFDI's ad, along with a whole bunch of other ads, led to the policy), (2) the policy was facially view-point based (not so under Lehman v. City of Shaker Heights), and (3) the religion restriction is inherently view-point based (AFDI didn't sufficiently develop or press this argument).
But while a view-point neutral regulation in a nonpublic forum usually satisfies the First Amendment, it also has to be reasonable. The court said that there was enough of a question here to remand the case for a determination of reasonableness under this Term's Minnesota Voters Alliance v. Mansky (holding that a restriction on political attire in a poling place wasn't reasonable).
Sunday, August 5, 2018
The Fifth Circuit ruled in Seals v. McBee that Louisiana's statute that criminalizes "threats" is unconstitutionally overbroad in violation of the First Amendment. The ruling strikes the state law.
The case arose when officers arrested Travis Seals for an unspecified reason and claimed that Seals resisted arrest and threatened them (with physical harm and legal action). The DA declined to prosecute. Seals then filed a civil action against officers for malicious prosecution, conspiracy, and a First Amendment violation. In particular, Seals said that the Louisiana statute that criminalizes "threats" was unconstitutionally overbroad. (The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [specified persons, including public officers and public employees] with the intent to influence his conduct in relation to his position, employment, or duty.)
The court first ruled that Seals had standing to sue, even though the DA disavowed bringing charges (but also that the government could bring charges as late as December 2019):
Seals's position mirrors that of the plaintiffs in United Farm Workers. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana's caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because the scales are at least as balanced as in United Farm Workers, Seals, too, has standing to challenge Section 14:122.
The court ruled next that the statute was substantially overbroad in violation of free speech:
"[H]ere the statute sweeps so broadly, encompassing any number of constitutionally protected threats, such as to boycott communities, to run against incumbents, and to sue police officers. Hence it is overbroad."
Chief Judge Beryl A. Howell (D.D.C.) ruled on Friday in CREW v. FEC that an FEC regulatory loophole that allows 501(c)(4) organizations and cooperating super-PACs to avoid statutory disclosure requirements was invalid. The ruling strikes the FEC regulation, invalidates the FEC's dismissal of CREW's administrative complaint against Crossroads GPS, and means that the FEC has to reconsider the complaint for failure to disclose contributors. Judge Howell stayed the ruling to give the FEC time to issue valid interim regulations.
The ball's now in the FEC's court. Depending on what the FEC does, this ruling could strike a serious blow to 501(c)(4)s and cooperating super-PACs that use the regulatory loophole to fly under the radar and evade disclosure of contributors.
The case tests the FEC disclosure reg at 11 C.F.R. Sec. 109.10(e)(1)(vi) against the authorizing federal law at 52 U.S.C. Secs. 30104(c)(1) and (c)(2)(C). The reg requires a non-political committee (like a 501(c)(4) organization) to report "[t]he identification of each person who made a contribution in excess of $200 to the person filing such report, which contribution was made for the purpose of furthering the reported independent expenditure." The statute requires a non-political committee "who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year" to report "the identification of each person who made a contribution in excess of $200 to the person filing such statement which was made for the purpose of furthering an independent expenditure."
The court explained how the reg falls short:
First, the challenged regulation wholly fails to implement another disclosure requirement, mandated in 52 U.S.C. Sec. 30104(c)(1), requiring reporting not-political committees to identify non-trivial donors, as well as the date and amounts of their contributions, when the contributions were made for political purposes to influence any election for federal office, or at the request or authorization of a candidate or the candidate's agent. Such contributions may, in fact, be intended to fund the not-political committee's own contributions and be routed to candidates, political parties, or political committees, such as super PACs. Second, the challenged regulation impermissibly narrows the mandated disclosure in 52 U.S.C. Sec. 30104(c)(2)(C), which requires the identification of such donors contributing for the purpose of furthering the not-political committee's own express advocacy for or against the election of a federal candidate, even when the donor has not expressly directed that the funds be used in the precise manner reported.
These disjunctions between the reg and the statute allow non-political committees and cooperating super-PACs to evade disclosure requirements. The court explains how this works:
Reading subsection (c)(1) out of the statute makes a difference. By contrast to the donors covered in subsection (c)(2)(C), who contributed to support the not-political committee's independent expenditures . . . the donors covered in subsection (c)(1) contributed to not-political committees to support political efforts in connection with federal elections, which contributions may be used by the not-political committee, in some cases, to contribute directly to candidates or political committees, including to fund super PACs. For example, super PACs set up only to make independent expenditures, may receive unlimited contributions from donors, including not-political committees, to fund their independent expenditure activity. While super PACs, as political committees, must disclose their contributors, those disclosed contributors may serve merely as pass-through entities to route the funds to the super PAC.
Indeed, super PACs are often affiliated with not-political committees, such as 501(c)(4) organizations, because, as a political committee and not-political committee, respectively, each entity "abides by a particular set of rules, enjoys distinct opportunities, and is subject to different restraints." Allowing not-political committees to mask donors, who otherwise are subject to disclosure under subsection (c)(1), facilitates the role of these organizations as pass-throughs, enabling donors to contribute to super PACs without being identified by routing their contributions through affiliated 501(c)(4) organizations or other types of not-political committees. Absent enforcement of subjection (c)(1), super PACs disclose the identities of contributing not-political committees, but the latter do not disclose the original contributors, subverting the FECA's broad disclosure regime.
The ruling strikes the FEC reg, but gives the Commission another bite at the apple--45 days to issue interim regs that comply with the statute.
Wednesday, August 1, 2018
The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.
Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.
The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.
The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.
The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.
The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."
The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise).
[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.
The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.
Friday, July 6, 2018
In a brief opinion in Cigar Association of America v. United States Food and Drug Administration, Judge Amit Mehta has enjoined the FDA's warning requirements regarding cigars under 21 CFR 1143.5, such as the statement "Cigar smoking can cause lung cancer and heart disease" pending appeal.
In a previous opinion in May, Judge Mehta had sustained the FDA rule against a First Amendment challenge (as well as other challenges), finding that "Because the warning statements are factual and uncontroversial disclosures aimed at informing the public about the risks of cigar and pipe tobacco use and at correcting the public’s misperceptions about such products’ use, and because the [FDA] Rule does not impose these requirements in an “unjustified or unduly burdensome” manner, the Rule is constitutional" under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985).
Nevertheless, Judge Mehta's conclusion regarding the "likelihood of success on the merits" prong of the preliminary injunction analysis was that the Cigar Association raised "serious legal questions going to the merits, such as
whether Defendants’ asserted governmental interest in imposing the health warnings regime is a substantial one; the precise burden the government bears under Zaudererto compel purely factual and uncontroversial government speech; and whether a disclosure of the size and appearance mandated by the warnings requirements is so “unduly burdensome” as to chill protected speech. These are difficult legal questions, and the D.C. Circuit might well disagree with this court’s resolution of them.
Most interestingly, however, Judge Mehta relies on the Supreme Court's June decision in National Institute of Family and Life Advocates v. Becerra holding California's FACT Act requiring of disclosures by "pregnancy crisis centers" violated the First Amendment. Judge Mehta states that Becerra "only adds to the substantiality of the issues Plaintiffs intend to raise on appeal," even as Judge Mehta writes
This court does not concur that Becerra requires an outcome different than the one the court reached— Becerradiffers from this case in multiple, material ways—but that disagreement does not diminish the merits of Plaintiffs’ motion. Becerra makes clear that Plaintiffs’ appeal raises serious legal questions.
Yet while an important aspect of the Court's opinion in Becerra as we discussed was that abortion was not "uncontroversial," it does seem as if the cigar association cannot make the same claim as to the links between tobacco and cancer. Or can they?
A case to watch as it goes to the D.C. Court of Appeals in the continuing saga of First Amendment challenges to government mandated warnings and disclosures by industries as in the 2014 DC Circuit en banc American Meat Institute v. U.S. Department of Agriculture and panel opinions in National Association of Manufacturers v. SEC (conflict minerals) and R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling).
Thursday, July 5, 2018