Sunday, August 5, 2018
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
Monday, July 2, 2018
The Fifth Circuit ruled last week in Sims v. City of Madisonville, that a nonfinal decisionmaker can be liable for a retaliatory discharge against an employee in violation of the First Amendment.
The ruling clarifies the law in the Fifth Circuit and aligns the court with all the other circuits to have addressed the issue. It also means that future nonfinal decisionmakers in the Fifth Circuit are now on notice (and the law is clear, for qualified immunity purposes): You may be liable for actions you take against employees in retaliation for their protected First Amendment speech.
The case involved a police officer's lawsuit against the city and another officer (but not the final decisionmaker) for retaliatory discharge in reprisal for his speech about the defendant-officer's official conduct. The defendant-officer sought qualified immunity.
In a somewhat unusual move, the court took up the first prong of the two-part qualified immunity test in order to get to its holding on the plaintiff's right. Qualified immunity shields an official from a constitutional tort unless (1) the official violated the plaintiff's constitutional rights and (2) the right was clearly established at the time. Because courts can address either prong first, they often (or almost always) address the second prong first, and grant qualified immunity because a right wasn't clearly established. But this means that they don't get to the first prong--whether there was a constitutional violation in the first place. That leaves the law unsettled, which then invites qualified immunity on the second prong in future like cases. Or as the court said: "Continuing to resolve the question at the clearly established step means the law will never get established."
That's exactly what happened here. Fifth Circuit law took a detour on the issue after courts misread an earlier ruling. That led to confusion in the circuit about what the law was. And that, in turn, led to a string of dismissals on qualified immunity grounds because, well, the right wasn't clearly established.
So the court joined all the other circuits to have addressed the issue and ruled that nonfinal (mid-level) decisionmakers can be liable for retaliatory action, so long as their actions were a "causal link" in the retaliatory action.
As numerous courts of appeals have recognized, individual liability for a government official who violates constitutional rights, including First Amendment ones, turns on traditional tort principles of "but-for" causation. If an individual defendant's animus against a coworker's exercise of First Amendment rights is a link in the causal chain that leads to a plaintiff's firing, the individual may be liable even if she is not the final decisionmaker.
The ruling did nothing for the plaintiff in this case, though. That's because at the time of the action (before the court ruled in this case), the law was still unsettled in the circuit--there was no clearly established right--and so the court granted qualified immunity to the defendant under the second prong.
The court also rejected the plaintiff's due process claims.
Sunday, July 1, 2018
Check out Adam Liptak's piece in The NYT, How Conservatives Weaponized the First Amendment.
The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to rule for conservative speech than for liberal speech.
The piece draws on Lee Epstein, Andrew D. Martin, and Kevin Quinn's 6+ Decades of Freedom of Expression in the U.S. Supreme Court.
Wednesday, June 27, 2018
The Supreme Court today ruled that Illinois's fair-share, agency-fee requirement for non-members of public sector unions violated the First Amendment. The ruling deals a significant blow to public sector unions.
The 5-4 ruling wasn't entirely a surprise: The Court has sent several signals in recent years that fair-share was on the chopping block. The big question for the Court in today's ruling, Janus v. AFSCME, was how Justice Gorsuch would vote. He voted with the other conservatives against fair-share.
As part of the ruling, the Court overturned Abood v. Detroit Bd. of Ed., the 1977 case upholding a fair-share requirement against a First Amendment challenge. The Abood Court held that the state's interests in avoiding free-riders and maintaining labor peace justice any intrusion into First Amendment rights of non-members. Today the Court said that "Abood was poorly reasoned," that it "has led to practical problems and abuse," and that it "is inconsistent with other First Amendment cases . . . ."
The ruling means that states can no longer allow public sector unions to require non-members in a public-sector union shop to pay "agency fees" or "fair share" fees that go to the union's collective bargaining activities (but not to its political activities).
The ruling could have a devastating effect on public sector unions, or it could energize them. Time will tell.
It's unclear at this point whether the ruling could be used to challenge fair-share in the private sector.
Justice Kagan wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Sotomayor dissented separately.
Tuesday, June 26, 2018
In its closely divided opinion in National Institute of Family and Life Advocates (NIFLA) v. Becerra, Justice Thomas writing for the Court found California's FACT Act regulating "crisis pregnancy centers" violates the First Amendment.
Recall that the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The majority's opinion found the regulations as to both the licensed and unlicensed pregnancy centers violated the First Amendment.
As to the required notice for licensed pregnancy centers, the majority found it was a content-based regulation subject to strict scrutiny under Reed v. Town of Gilbert (2015). The Court rejected the category of "professional speech," relied on by the Ninth Circuit, stating the "Court’s precedents do not recognize such a tradition for a category called “professional speech.”" However, the majority opinion recognized that the Court had "afforded less protection for professional speech in two circumstances," but stated that neither "turned on the fact that professionals were speaking." First, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the majority discussed the more deferential review accorded to laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” However, the majority found Zauderer inapplicable because "the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available." "Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic." Second, citing Planned Parenthood of Southeastern Pa. v. Casey, the majority acknowledged that the Court had rejected a First Amendment challenge to a law requiring physicians to obtain informed consent before they could perform an abortion.The majority distinguished Casey, however stating that:
The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.
The majority's opinion states that regulating medical speech is especially problematical given that "Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities, quoting language regarding the Chinese Cultural Revolution and Nazi Germany.
Even if strict scrutiny did not apply, the majority stated that "the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it."
As to the unlicensed notice, the majority found that it did not survive even under Zauderer, because it was “unjustified or unduly burdensome.”
Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements.
In a concurring opinion, Justice Kennedy, joined by Roberts, Alito, and Gorsuch, argued that the California law was viewpoint discrimination.
Thursday, June 14, 2018
Friday, June 1, 2018
The Seventh Circuit this week rebuffed a First Amendment challenge to the phrase "In God we Trust" on our currency by a non-theistic Satanist. The unsurprising ruling allows the government to continue to print that phrase on money.
The plaintiff challenged the phrase under the Establishment Clause, the Free Exercise Clause, and the Speech Clause, among others. The court rejected each.
As to the Establishment Clause, the court said that the phrase wasn't an endorsement of religion, that it didn't coerce religious beliefs, and that it wasn't based on a forbidden religious purpose. In short, the court said that the phrase is simply a part of our nation's heritage:
The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation's religious heritage. Examples include the phrase "one nation under God," which has been in the Pledge of Allegiance since 1954, as well as the National Day of Prayer, which has existed in various forms since the dawn of the country and is now codified [in the U.S.C.]. Moreover, when the religious aspects of an activity account for "only a fraction," the possibility that anyone could see it as an endorsement of religion is diluted. In the case of currency, the motto is one of many historical reminders; others include portraits of presidents, state symbols, monuments, notable events such as the Louisiana Purchase, and the national bird. In this context, a reasonable observer would not perceive the motto on currency as a religious endorsement.
As to free exercise, the court said that the plaintiff's "claim fails because the motto's placement on currency has the secular purpose of recognizing the religious component of our nation's history."
As to free speech, the court rejected the plaintiff's claim that the phrase amounted to forced speech, because nobody would regard the phrase as the plaintiff's own speech.
The court also rejected the plaintiff's RFRA claim (no substantial burden on the plaintiff's practice of Satanism) and his equal protection claim (because the government had at least one legitimate objective, "acknowledging an aspect of our nation's heritage").
Thursday, May 24, 2018
The Ninth Circuit yesterday upheld Montana's political committee reporting and disclosure requirements against First Amendment challenges by a group whose major purpose was not political advocacy. The ruling keeps these requirements on the books.
The case arose when the group Montanans for Community Development refrained from sending a pro-job-growth mailer that mentioned certain candidates in upcoming state elections, because it would have to comply with state political committee reporting and disclosure requirements. MCD sued, arguing that the requirements were unconstitutionally vague, that they were overbroad, and that they were unconstitutional as applied to MCD (as a group whose major purpose wasn't political advocacy).
The court, in a brief and unpublished opinion, rejected these claims. The court said that Montana law put a "person of ordinary intelligence [on] fair notice of what is prohibited" (and thus wasn't vague); that the requirements were substantially related to sufficiently important government interests of informing the electorate, deterring actual corruption and avoiding the appearance of corruption, and gathering data to enforce more substantive electioneering restrictions (and thus wasn't overbroad); and that "[p]olitical committee reporting and disclosure laws can extend beyond groups whose major purpose is political advocacy" (and thus survived MCD's as-applied challenge).
Wednesday, May 23, 2018
In her Opinion in Knight First Amendment Institute v. Trump, United States District Judge for the Southern District of New York, Naomi Reice Buchwald, found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views.
Judge Buchwald's 75 page opinion is well-structured and well-reasoned, proceeding through the multiple and complex issues posed by the novel issue. The parties' extensive Stipulation formed the basis of the summary judgment order.
Judge Buchwald first found that the named plaintiffs and organizational plaintiff had standing as to both the President and Dan Scavino, the White House Social Media Director with access to the Twitter account. But she granted summary judgment in favor of Defendant Sarah Huckabee Sanders, who did not have access to the Twitter account (and Hope Hicks, no longer at the White House, was dismissed as a Defendant).
On the First Amendment issue, Judge Buchwald concluded that the Twitter account was governmental in nature as was the act of blocking other Twitter users. The judge rejected the argument that blocking was not state action because the blocking functionality was afforded every user: "but the power to exclude is also one afforded generally to every property owner. When a government acts to 'legally preserve the property under its control for the use to which it is dedicated,' it behaves 'like the private owner of property.'" She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now:
Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.
Indeed, quoting from the parties' Stipulation, the Judge recounted:
With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38.
But the real issue for the forum analysis was not the President's tweets, which the Judge held to be "government speech" not subject to First Amendment constraints as the United States Supreme Court recently explained in Walker v. Texas Division, Sons of Confederate Veterans.
Instead, the "interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents," and, Judge Buchwald concluded, is a "designated public forum."
As such, the designated public forum is subject to the First Amendment requirement that any governmental restrictions must be "narrowly drawn to achieve a compelling state interest.”
Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”
This viewpoint discrimination is impermissible, Judge Buchwald concluded, and not justified by any personal First Amendment right advanced by the President. Judge Buchwald distinguished "muting" and "blocking" on Twitter - - - which the President had argued were indistinguishable - - - and concluded:
The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.
Finally, Judge Buchwald rejected the argument that the court categorically lacked authority to enjoin the President: "No government official, after all, possesses the discretion to act unconstitutionally." Nevertheless, she decided that a declaratory judgment should suffice: "we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."
Monday, May 7, 2018
The Seventh Circuit ruled today that a retailer was not likely to succeed on its First Amendment challenge to Indianapolis's adult-store zoning regulations.
The case, HH-Indianapolis v. Indianapolis, arose when the plaintiff sought to open a retail establishment called "Hustler Hollywood" in Indianapolis. The corporation sought advice from city officials in order to avoid the "adult" designation under the city's changing zoning rules, and, in reliance on that advice, entered into a ten-year lease at a particular location. But when the corporation applied for a structural permit to remodel the property, the city determined that the retailer was either an adult bookstore or an adult service establishment--either way, not permitted in the zone where it was located (but permitted in other areas of the city, including a zone right across the street). The corporation declined to challenge the designation through the state courts and instead brought a First Amendment challenge in federal court.
The Seventh Circuit ruled that it was unlikely to succeed (and thus denied its motion for a preliminary injunction). The court said that the case fell squarely within the Supreme Court's "erogenous zoning" line: "There is simply 'no First Amendment objection' when the City exercises its zoning power to reduce the secondary effects of adult businesses, and HH has alternative avenues of communication."
The court said that the plaintiff's claim really amounted to a challenge to its designation as an "adult" retailer, and under state law belonged in state court.
Thursday, May 3, 2018
The Ninth Circuit this week denied rehearing en banc of a panel ruling upholding Montana's contribution limits against a First Amendment challenge. Through a forceful dissent and response-to-the-dissent, judges on the court wrangled over the right standard for contribution limits in the wake of Citizens United and McCutcheon v. FEC.
The long-running, up-and-down case, now Lair v. Motl, tests Montana's low contribution limits, designed to address the state's unique history with political corruption. A three-judge panel of the Ninth Circuit upheld the limits, and the full court voted to deny en banc review.
In dissent, Judge Ikuta, joined by Judges Callahan, Bea, M. Smith, and N.R. Smith, argued that the panel applied too lenient a standard. In particular, Judge Ikuta wrote that under McCutcheon and Citizens United, "the only state interest that justifies contribution limits is the prevention of acts that 'would be covered by bribery laws if a quid pro quo arrangement were proved.'"
In light of the Supreme Court's clarification, a state can justify imposing regulations limiting individuals' political speech (via limiting political contributions) only by producing evidence that it has a real problem in combating actual or apparent quid pro quo corruption. . . . [T]he government must provide evidence that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" To meet this test here, a state must show that it has a realistic need to prevent acts that 'would be covered by bribery laws" by (for instance) presenting evidence that large monetary contributions were made "to control the exercise of an officeholder's official duties" or "point[ing] to record evidence or legislative findings suggesting any special corruption problem." One thing is certain: the state cannot carry its burden with evidence showing only that large contributions increase donors' influence or access.
Judges Fisher and Murguia responded, arguing that the dissent's test "has never been adopted by the Supreme Court or this court." "The evidentiary standard established by the Supreme Court requires that a state need only demonstrate a risk of quid pro quo corruption or its appearance that is neither conjectural nor illusory."
Monday, March 26, 2018
The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.
The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.
The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).
The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.
Judge Amy Berman Jackson (D.D.C.) ruled on Friday that donors to a PAC don't have a First Amendment right against public disclosure of their identities as part of the FEC investigation file into their political contributions.
The ruling means that the FEC investigation file, including the contributors' identities, will be released, unless and until the ruling is appealed.
The case, John Doe 1 & John Doe 2 v. FEC, arose when the FEC launched an investigation into a series of transactions that landed Now or Never PAC with a $1.7 million contribution. The FEC's OGC learned that John Doe 2 sent about $1.7 million to Government Integrity; that Government Integrity wired about that amount to American Conservative Union; and that American Conservative Union, in turn, sent that amount on to Now or Never PAC.
The FEC's OGC recommended that the Commission find reason to believe that John Does 1 and 2 violated FECA's prohibition on "mak[ing] a contribution in the name of another person or knowingly permit[ting] his name to be used to effect such a contribution." The FEC rejected the recommendation, however, and sent the case to conciliation. Based on the results of conciliation, the FEC found that there was reason to believe that the plaintiffs, the PACs, and the treasurer of Now or Never violated FECA's prohibitions on making or receiving contributions in another person's name.
The FEC also advised that it would put the documents related to the case on the public record.
The John Does sued, arguing that this violated their First Amendment rights, among other things.
Judge Jackson disagreed. She noted initially that "plaintiffs do not make any claim that anyone's associational rights are being infringed, and disclosing the identities of plaintiffs here would not involve the disclosure of anyone's internal operations or political strategies." She also noted that the FEC recently revised its disclosure policy and tailored it "to minimize the burdens on constitutional rights while providing for sufficient disclosure to advancing legitimate concerns of deterring future violations and promoting Commission accountability."
She then wrote that "the constitutional issue has already been decided in the agency's favor." Quoting Citizens United,
The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
Judge Jackson went on to hold that the FEC's disclosure policy is reasonable (under the APA) and consistent with FOIA.
Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.
Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.
Tuesday, March 13, 2018
A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a "V for Vendetta" mask. The ruling ends the protestor's civil-rights action against the officers.
The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia's Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to "wear a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer" while he is "upon any public way or public property." Gates sued, arguing that his arrest violated the First and Fourth Amendments.
The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates's federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask "knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence."
Under this standard, the court said that the officers didn't violate any clearly established First or Fourth Amendment right. In particular, the majority held that under the circumstances the officers could have reasonably believed that Gates wore the mask to cover his entire face and with an intent to intimidate, and that they therefore had "arguable" probable cause for his arrest. (The court reminded us that "arguable" probable cause--the standard for qualified immunity from a Fourth Amendment claim--is a pretty low standard and doesn't require an officer to have specific evidence of intent. In any event, as to intent, the court said that the circumstances of the protest, the fact that officers previously ordered mask-wearers to remove masks on threat of arrest (even if Gates didn't hear this), and the symbolic threat behind the Guy Fawkes mask all suggested that an officer could infer intent to intimidate.)
Judge Williams dissented. She argued that the majority "fail[ed] to adequately address the First-Amendment implications of the conduct and statute at issue here." In particular, she wrote that "the specific right at issue here--whether individuals can be subject to arrest for wearing a mask during a peaceful protest--was "clearly established" at the time of Gates' arrest."
The panel unanimously held that the officers enjoyed absolute immunity against Gates's state-law claims.
Monday, March 12, 2018
The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.
While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.
The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.
Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.
The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.
As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.
Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.
While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.
Wednesday, February 28, 2018
The Court heard oral argument in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The argument tracked many of the issues in our preview here.
Important to the argument was the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. Early in the argument, Justice Sotomayor asked J. David Breemer, counsel for the petitioners, whether he was asking the Court to overrule Burson. Breemer distinguished Burson as "active campaigning" speech while the Minnesota statute governing attire and buttons was directed at "passive speech," but this did not seem satisfactory to the Justices.
The slippery slope inherent in overbreadth challenges was traversed multiple times. How could the lines be drawn? Several Justices at different points pressed counsel for Minnesota Voters Alliance on whether the statute would be constitutional if narrowed to "electoral speech" (vote for candidate X), but while counsel eventually agreed this might be constitutional, Justice Sotomayor then asked about ballot measure issues. During Daniel Rogan's argument on behalf of the State of Minnesota, Justice Alito pressed with any number of examples after stating that political connotations are in the "eye of the beholder": rainbow flags, Parkland Strong, the text of the Second Amendment, the text of the First Amendment, and "I miss Bill." And what about the very notion of entitlement to vote itself? In Breemer's rebuttal, Justice Sotomayor returned to some of the facts that had prompted the First Amendment challenge:
Let's not forget who these people were and what they were wearing, "Please ID me," which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth . . . .
For Alito, the focus was not on voters who may be intimidated but on the humiliation of a voter who might be forced to cover up a political shirt with "a bathrobe."
As for the government interests supporting the statute, the question of dignity and decorum were paramount, inviting the comparison to the courtroom, which Justice Kagan raised. Although Breemer stated there was no constitutional right to vote free from being bothered, C.J. Roberts asked why a state could not make a determination that there should be such a policy.
The on-the-ground enforcement of the statute, with a potential for viewpoint discrimination, was a focus of Justice Alito's questions, but other Justices were also interested in what actually happened at the polling place. For Alito,but Rogan stressed the process and repeatedly noted that for one hundred years the statute has not been a problem and that Minnesotans know not to wear political slogans to go vote. If there are issues, Rogan stated, they are rather expeditiously solved in a bipartisan process at the polling place.
While one can assume their positions from their questions in oral argument from a few Justices - - - Alito seemed rather obvious - - - it is always risky to venture a guess about the outcome, especially when there is a conflict of constitutional interests. Indeed, this case may be most like Williams-Yulee v. The Florida Bar in which a closely-divided Court in 2015 upheld an ethics rule prohibiting judicial candidates from solicitation; Chief Justice Roberts wrote the majority opinion.