Constitutional Law Prof Blog

Court Defines When Public Official's Social Media Violates Free Speech

The Supreme Court issued a pair of rulings this week that set the test for when the First Amendment prohibits a public official from restricting access to their social media. The rulings send the cases back to the lower courts for application of the Court's new test.

Both cases arose when local public officials blocked users from their social media. In both cases, the officials used social media for both public posts and personal posts. The blocked users sued, arguing that the officials violated the First Amendment. In response, the officials argued that their use of social media did not constitute state action, and so neither Section 1983 nor the First Amendment applied.

The Court ruled that the First Amendment applied to public officials' mixed-use social media when (1) the public official had actual authority to speak on behalf of the government on a particular matter and (2) the public official purported to exercise that authority in the relevant posts. As to (1), the Court said that "[t]he alleged censorship must be connected to speech on a matter within [the official's] bailiwick." It also said that "[d]etermining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage."

In sum, a defendant . . . must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.

As to (2), the Court said that "the public employee [must] use his speech in furtherance of his official responsibilities" and that this can sometimes (as with speech "on an ambiguous page") require "a fact-specific undertaking in which the post's content and function are the most important considerations." The Court also noted that the technology mattered. For example, "[b]ecause blocking operated on a page-wide basis, a court would have to consider whether [an official who blocked users] had engaged in state action with respect to any post on which [the user] wished to comment." "If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designed personal account therefore exposes himself to greater potential liability."

Fourth Circuit Says Public Charter School Not a State Actor for Dress Policy

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fourth Circuit ruled that a public charter school isn't a state actor for purposes of its dress policy, and dismissed an equal protection challenge to that policy. At the same time, the court ruled that Title IX covers the policy, and remanded the case for further consideration on that statutory ground.

The case, Peltier v. Charter Day School, tests CDS's policy that requires girls to wear skirts or skorts. CDS's stated reasons for the policy are baldly based on romantic paternalism and outdated ideas about sex-based differences; and the plaintiffs provided plenty of evidence that the policy harmed girls. Still, the court ruled that the plaintiffs couldn't assert an equal protection claim under Section 1983, because CDS isn't a state actor.

The court ruled that despite North Carolina's charter, designation, and funding of CDS as a "public" school, functional considerations made CDS a non-state-actor for the purpose of its dress policy.

Functionally, North Carolina's charter school statutory scheme disentangles the state from the day-to-day operations of CDS, and in particular CDS's promulgation of a dress code. The statutory scheme clearly reflects a "legislative policy choice" to contract with privately operated schools to provide a hands-off approach by the state, enabling pedagogical experimentation and school choice. Likewise, the fact that CDS is directly publicly funded, rather than reimbursed for tuition it charges by the state, is a formal distinction. . . . That charter schools cannot charge tuition in North Carolina merely reflects the legislative designation of the schools as public, and thus open equally, in theory, to all. It does not functionally change the relationship between CDS and the state.

The court went on to say that its ruling is limited to CDS's dress policy, suggesting that CDS may be a state actor for other purposes, and that its ruling doesn't license CDS to discriminate (because there are numerous other anti-discrimination requirements that apply to it). Moreover, it said that CDS's justification wouldn't have satisfied equal protection standards if CDS were a state actor.

The court also ruled that Title IX applied to the dress policy, notwithstanding a 1982 Department of Education move to revoke a previous regulation that applied Title IX to "any rules of appearance." The court applied Chevron and concluded that nothing in Title IX prevented its application to dress policies.

Judge Kennan dissented on the state-actor portion of the ruling. "I therefore part company with my friends in the majority and would hold that actions of [CDS], a public school created under North Carolina law and funded almost entirely by governmental sources, are actions of the state for purposes of Section 1983. Moreover, I would hold that CDS' enforcement of the skirts requirement, with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of Equal Protection under the law."

Missouri Federal Judge Finds State Representative Violated First Amendment by Twitter Blocking

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Campbell v. Reisch, United States District Judge for the Western District of Missouri Brian Wimes found that a state representative violated the First Amendment rights of her constituent when she blocked him from commenting on her tweet on Twitter.

 Judge Wimes largely agreed with Knight First Amendment v. Trump, in which the Second Circuit, affirming the district court opinion, found that President Trump violated the First Amendment rights of those he blocked on Twitter.  Judge Wimes found that the plaintiff's speech was on a matter of public concern; Campbell was disputing a criticism by Representative Reisch arising from Reisch's criticism of her political opponent. Further, Judge Wimes found that the "interactive space" on the Twitter account is a designated public forum. Resich's blocking of the plaintiff because he disagreed with her was viewpoint discrimination prohibited by the First Amendment.

Judge Wimes' opinion considers the "color of state law" requirement under 42 U.S.C. §1983, like the state action requirement, met under this "fact intensive" analysis. The judge stated that the defendant controlled the interactive space of her twitter account in her "capacity as a state legislator." Further, she had " launched her Twitter account alongside her political campaign," her "handle references her elected district, and her Twitter account links to her campaign webpage," the  "image associated with Defendant’s Twitter account is a photo of her on the state house floor," and finally  she "used the Twitter account to tweet about her work as a public official."

Like Trump on Twitter, and the county legislator on Facebook in Davison v. Randall (& Loudoun County) decided by the Fourth Circuit, this opinion is another finding that elected officials cannot "curate" the comment sections on their social media posts. Although there is some authority to the contrary, the strong trend is a warning to warning to elected officials who attempt to silence their critics on social media. 

[image via]

SCOTUS: No State Action in First Amendment Challenge to Public Access Channel

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.

Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of  Time Warner's cable system and Time Warner is a private company.  At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.  During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines. 

Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue.  The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:

(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));

(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);

(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).

Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved. 

Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function.  Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.

The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."

The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner.  The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.

Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other."  The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels.  The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"

The Court's divided opinion reveals an established political rift in state action doctrine and theory.  In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

On the other hand, Justice Sotomayor for the four dissenting Justices concludes:

This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.

While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.

Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.

Federal Judge Finds Charter School's Gendered Dress Code Violates Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Peltier v. Charter Day School, Inc., Senior United States District Judge Malcolm J. Howard in the Eastern District of North Carolina held that the dress code of the Charter Day School corporation mandating that girl students wear skirts violated the Equal Protection Clause.

The bulk of Judge Howard's 36 page opinion concerned the threshold matter of state action given that Charter Day School (CDS) is a private nonprofit corporation. CDS described itself as a "traditional values" charter school and operated under North Carolina statutes allowing and regulating charter schools. Judge Howard determined that CDS had responsibility for the dress code (unlike another defendant), was viewed as a public school under state law, was performing an historical, exclusive, and traditional state function, and was subject to pervasive regulation including regarding suspensions for dress code violations.

On the Equal Protection Clause issue, Judge Howard noted that grooming and dress codes did not fit neatly into the doctrine of sex discrimination articulated in United States v. Virginia (VMI) (1996), noting that the CDS argued that intermediate scrutiny should not apply, but rather a "comparable burden" analysis. However, Judge Howard determined that even under a "comparative burden" analysis, the skirts requirement for girls did not "pass muster." Judge Howard stated that the skirts requirement was not consistent with community norms: women and girls have worn both pants and skirts in school and professional settings since the 1970s.

In considering the interests CDS asserted, including that the skirts requirement "helps the students act appropriately toward the opposite sex," Judge Howard found that there was no evidence to substantiate this, including a comparison to the days when there were exceptions to the only-skirts requirement. Moreover, the CDS board members could not explain when deposed how the skirts requirement furthered the goal. And while CDS stressed their students' good performance, there was no link between the performance and the skirts policy.

As Judge Howard implied, mandating girl students wear skirts has become anachronistic. However, as Judge Howard also noted, this does not mean that all gender-specific dress codes violate equal protection.  For more about school dress codes and enforcing gender norms, see Dressing Constitutionally.

image: girls in pants in Minneapolis, 1929, via

Federal District Judge Dismisses Claims Against Trump Campaign for Disclosure of Information

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Cockrum v. Donald J. Trump for President, Inc.,  Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign.  The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.

Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.

However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.

For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right.  This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action.  The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.

Counts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort.  The court dismissed the state tort law claims without prejudice.

The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.

SCOTUS Hears Oral Argument in Public Access Television and State Action Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.  As we discussed in our preview, the doctrinal question revolves around whether it is general constitutional state action doctrine or public forum doctrine under the First Amendment or whether there is a convergence of the two doctrines. The Second Circuit held that there were sufficient allegations of state action and First Amendment violations to prevent dismissal of the complaint.

Recall that the case involves a claim that Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content in violation of the First Amendment, which requires state action.

In oral argument, Michael DeLeeuw, arguing for MNN, began by stating that MNN could not be deemed a state actor under any of the Court's state action tests.  On the other hand, in the conclusion to his argument on behalf of the original plaintiffs, Paul Hughes stated that his "argument is limited to the context of public forums and the administration of public forums being state action" and "goes no further than that."

In between, the Justices probed factual questions regarding the composition of the MNN board, MNN's ability to curate content (or whether it must adhere to first-come-first-served), the practice with other public access channels, the agreement scheme between the city and MNN as well as regulations, and searched for analogies in railroads, "private prisons," and schools opening their facilities.  Early in the argument, Chief Justice Roberts asked whether facts about MNN's ability to curate content was disputed, with counsel for MNN responding that they were, and Chief Justice Roberts responding that the case was before the Court on the pleadings.  At several points, Justice Breyer focused on specific facts, noting that certain facts tended toward or against there being state action or the creation of a public forum.

On the whole, the argument seemed to favor a very particularized analysis.  So while the Court could certainly articulate a broad new standard for state action, it seems more likely that the Court's decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.

SCOTUS Preview: State Action and Public Access Television

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On February 25, the Court will hear oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.

In the Second Circuit's divided opinion in Halleck v. Manhattan Community Access Corporation (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.

But before reaching that heart are sticky issues involving whether the First Amendment applies at all given the complex statutory and regulatory schemes governing "public access" television. Additionally, the conflation of the state action threshold for all constitutional claims and the doctrine of "public forum" under the First Amendment can make the analysis murky.  As a further complication, the most applicable precedent is Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) which the majority opinion in Halleck by Judge Jon Newman accurately describes as "a case that generated six opinions spanning 112 pages of the United States Reports," in which "five Justices expressed differing views on whether public access channels were public forums."  Judge Newman acknowledged that there was not only disagreement among the Justices, there was disagreement among the Circuits and District Courts, but ultimately declared:

With all respect to those courts that have expressed a view different from ours, we agree with the view expressed by Justices Kennedy and Ginsburg in Denver Area. Public access channels, authorized by Congress to be “the video equivalent of the speaker’s soapbox” and operating under the municipal authority given to MNN in this case, are public forums, and, in the circumstances of this case, MNN and its employees are subject to First Amendment restrictions.

Writing a dissent on this issue in the Second Circuit, Judge Dennis Jacobs essentially criticized the conflation of the state action and First Amendment public forum issues, arguing that the majority opinion

private property leased by the Government for public expressive activity creates a public forum; a facility deemed to be a public forum is usually operated by Government; action taken at a facility determined to be a public forum usually is state action; the First Amendment applies to a person acting at such a facility if the person has a sufficient connection to Government authority to constitute state action; and here, the Borough President’s designation of MNN to administer the public‐access station is sufficient.

[citations to majority opinion omitted]. Judge Jacobs would have applied state action doctrine under the Second Circuit requiring that a private entity can only be deemed a state actor if there is compulsion by the state, or joint action with the state (an entwinement analysis), or when the private entity has been delegated a public function by the state.  In his concurrence, Judge Lohier argued that there was state action under the public function analysis, but for Judge Jacob, the operation of an "entertainment facility" was not a traditional public function: "And it is fortunate for our liberty that it is not at all a near‐exclusive function of the state to provide the forums for public expression, politics, information, or entertainment."

Looking forward to the oral argument at the Supreme Court, it will be worth noticing whether the Justices focus on public forum doctrine under the First Amendment or on state action doctrine or whether the problematical convergence of the two doctrines continues.

 

Fourth Circuit Finds Public Official Violated First Amendment Rights of Constituent on Facebook

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its thorough opinion in Davison v. Randall (& Loudoun County), the Fourth Circuit earlier this month concluded that the interactive component of the Facebook Page of Phyllis Randall, the Chair of Loudoun County, Virginia constituted a public forum and that the Chair engaged in classic viewpoint discrimination violating the First Amendment when she banned a constituent from posting on the page.

The Fourth Circuit's unanimous opinion by Judge James Wynn affirms the opinion by District Judge James Cacheris which we extensively discussed here. 

However, for the first time on appeal the government defendants raised the argument that the individual constituent who was temporarily banned, Brian Davison, lacked Article III standing because he did not suffer an injury in fact. Judge Wynn's opinion first found that the plaintiff evinced an intent to engage in the proscribed conduct in the future — here, commenting on Facebook Pages of the government official — which was easily satisfied given that he was "active in local politics."   Second, Judge Wynn's opinion found that there continued to be a credible threat of future "enforcement" by the government, especially given past actions and that Randall had not "disavowed" future enforcement.

Judge Wynn's opinion for the Fourth Circuit on the state action threshold issue agrees with the district court's opinion that there is state action. Judge Wynn wrote that the issue of whether there is sufficient "color of state law" under 42 U.S.C. §1983 is "synonymous with the more familiar state action requirement applicable to Fourteenth Amendment claims" and the analysis for each is identical. The precise contours of that analysis do not admit to a "specific formula" according to the opinion, instead meriting consideration of the totality of the circumstances and whether there is a sufficiently close nexus. Importantly, here the court concluded that the official used the power and prestige of her office to damage the plaintiff constituent based upon events which arose out of her official status.

On the First Amendment merits, Judge Wynn's opinion found that the Facebook Page — or portions of it — created a public forum, an issue that is intertwined with the state action issue. For the public forum question, the Fourth Circuit, like the district judge, again discussed the specifics of the Facebook Page and interactive component with its invitation for ANY Loudoun resident to make comments on ANY issues. The court noted the language from the Supreme Court's opinion in Packingham v. North Carolina (2017) commenting that social media as currently the most important place for the exchange of views.  Judge Wynn rejected the government's arguments that Facebook was a private website that cannot be converted to a public forum, noting that the forum analysis under the First Amendment applies to private property dedicated to public use.  Judge Wynn also rejected the government's argument that the Facebook Page was exempt from First Amendment analysis as government speech, again noting that it specifically invited constituents to participate.

Interestingly, the Fourth Circuit analogized to Halleck v. Manhattan Community Access Corp (2nd Cir. 2018), which, as the opinion discussed in a footnote, is now before the United States Supreme Court on certiorari (our preview is here).  But the Fourth Circuit distinguished the issues before the Court in Halleck as being state action issues rather than the public forum issues to which it analogized.

D.C. Circuit Says that Fannie Mae, Even Under Conservatorship, is No Government Actor

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled yesterday that Fannie Mae, a government-sponsored but privately-owned corporation, but now under conservatorship of an independent government agency, cannot be sued for a First Amendment violation. The court said that the corporation, even under conservatorship, isn't a government actor.

The case involves a Fannie Mae contractor, Caroline Herron, who alleged that Fannie Mae officials retaliated against her for raising concerns about mismanagement at the corporation. Herron brought a Bivens claim against Fannie Mae officials for a free-speech violation, among other claims. But the Bivens claim hinges, of course, on Fannie Mae officials being government actors. Herron argued that they were, because Fannie Mae is under conservatorship of an independent federal agency, the Federal Housing Finance Agency. In other words, the conservatorship converted Fannie Mae (an otherwise private actor) into a government actor.

The D.C. Circuit rejected that argument. The court looked to the three-part test in Lebron v. National R.R. Passenger Corp. for determining whether a "[g]overnment-created and -controlled corporation[]" is a government actor for constitutional purposes. The court held that (1) the government created Fannie Mae (2) "for the furtherance of governmental objectives." But the court held that (3) under the terms of the conservatorship the government didn't permanently control it. "Although there is no specific termination date, the purpose of the conservatorship is to restore Fannie Mae to a stable condition. 'This is an inherently temporary purpose.'" For the court, it's the purpose of the indefinite conservatorship, not its internal self-destruct clause (which didn't exist), that matters.

The ruling ends Herron's case. (The course dismissed her other claims, too.)

EnBanc Ninth Circuit Rejects Equal Protection Challenge to Tucson's City Council Election Scheme

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its en banc opinion in Public Integrity Alliance v. City of Tucson, the Ninth Circuit held that Tucson's "hybrid system" for electing members of its city council does not violate the Equal Protection Clause.  The staff summary succinctly describes this hybrid system:

Tucson is divided into six wards of approximately equal population, and each ward is allotted one seat on the six- member city council. Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. The top-vote getter from each party eligible for inclusion on the ward- level primary ballot advances to an at-large general election where she competes against the other candidates nominated from the same ward. In the general election, every Tucson voter may vote for one candidate from each ward that held a primary.

Importantly, once elected, the city council members represent the entire city.  The challenge to this system rested upon a denial on the one-person one-vote principle in equal protection doctrine.  The challenger Public Integrity argued that either an entirely ward-based system or an entirely at-large system would be constitutional, but the hybrid combination resulted in For the challenger, the hybrid system means that Tucson voters are denied the right to participate in the primary elections for all but one of their representatives. 

The court noted that although primary elections are "indisputably" state action subject to the same constitutional constraints as general elections, this dis not mean that "primaries and general elections must be identically structured and administered." The court thus rejected the challenger's contention that Gray v. Sanders (1963) mandated that the primary and general election use the same geographical units.  Instead, the court applied the balancing test of Burdick v. Takushi (1992) for less than "severe restrictions."  (Recall that in Burdick, the Court upheld Hawai'i 's ban on write-in voting). The Ninth Circuit here found Tucson's restrictions minimal and found they were justified by Tucson's "important" interests including to "promote local knowledge and legitimacy, geographic diversity, and city-wide representation on the city council."  

Eleven (of the 29) active judges of the Ninth Circuit participated in this en banc opinion, authored by Judge Marsha Berzon, and affirming the district judge.  Judge Berzon's relatively brief and straightforward opinion provoked no dissenting or concurring opinions.  It does overrule a previous Ninth Circuit case decided in 1994 on the basis that it articulated a different standard than that required by Burdick.  Perhaps the clearest message from the court is that it deferred to a "careful longstanding choice" that is a "product of our democratic federalism" allowing experimentation even where "the best solution is far from clear."

Federal Judge Finds "Parents for Megan's Law" a State Actor in Fourth Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her opinion in Jones v. County of Suffolk (NY) and Parents For Megan's Law, Judge Joanna Seybert found that the group was a state actor for constitutional purposes and that the complaint stated a valid Fourth Amendment claim. 

The facts as alleged in the complaint illustrate the continuing constitutional issues with civil monitoring of persons convicted of sex offenses.  Jones, convicted in 1992, is a low-risk sex offender subject to numerous requirements under the New York Sex Offender Registry Act (SORA).  New York's Suffolk County (on Long Island), passed an additional act, the Community Protection Act, which Judge Seybert described as including "aggressive sex offender monitoring and verification."  The county act authorized the county law enforcement agency to enter into a contract with the organization Parents for Megan's Law (PFML), a “victim’s advocacy organization that campaigns for increased punitive regulation of people registered for past sex offenses” and “has called for legislative changes that, among other things, would require people convicted of SORA offenses to live far away from population centers.”  The contract requires PML to "use ex-law enforcement personnel" to "engage in proactive monitoring of registered sex offenders."  And "proactive" would be one way to describe the actions of the PFML personnel who came to Jones' home several times, waited for him at the doorstep, asked for his driver's license and kept it for several minutes,  questioned him about his employment, and warned that they would make further unannounced visits to his home and work. 

Illustration from Hound of the Baskervilles via

In its motion to dismiss, PFML argued that it was a private entity not subject to constitutional constraints.  Judge Seybert, relying on Second Circuit precedent, held that there was a "close nexus" and a "delegation of a public function," and thus PML was a state actor.  This was not an ordinary contract, but one in which the police department directed the monitoring operations of the PFML.  Important to her analysis, there was a letter from the county police department informing designated  sex offenders that they would be required to provide identification to PML personnel, thus "creating the appearance of joint action" between the state and the organization.

The letter was also important to Judge Seybert's Fourth Amendment analysis.  The judge distinguished the allegations here from Florida v. Jardines (2013), on which both parties relied, regarding the constitutionality of a so-called "knock and talk" by law enforcement:

Defendants assert that because PFML agents’ interactions with Jones can be classified as a “knock and talk,” no Fourth Amendment violation occurred. However, the allegations in the Complaint raise questions about whether a reasonable person in Jones’ position would feel free to terminate his interactions with PFML. The questioning here did not take place in an open field, or a Greyhound bus, but rather within Jones curtilage--an area afforded heightened Fourth Amendment protection. Moreover, in advance of the visits, Jones received a letter from the SCPD instructing him that he would be visited by PFML for the purpose of verifying his address and employment information. Although the letter stated that Jones would be “asked to provide them with personal identification” and “requested to provide employment information,” the letter begins by stating that “registered sex offenders are required to provide this information under [SORA].” Citizens do not often receive letters from the police announcing home visits by third-party groups. At the very least, the letter is ambiguous as to whether compliance was mandatory. Finally, the description of PFML agents’ conduct gives the distinct impression that compliance was not optional. The fact that the agents waited for fifteen minutes on Jones’ porch while he was in the shower, “followed [him] closely” as he walked to retrieve his driver’s license, and told Jones that “they may make subsequent, unannounced appearances at his job,” gives the encounter the appearance of a seizure of Jones’ person, rather than a consensual “knock and talk.”

Judge Seybert did dismiss the complaint's due process claim, which Jones argued were based on a right to familial association that had been injured by the PFML "visits" to his home.  Judge Seybert reasoned that there was no "invasion of a liberty interest" that was "separate and apart" from the Fourth Amendment claim and thus an independent substantive due process claim could not proceed.

While there are other issues before the court - - - including whether a state (or county) can delegate its sex offender monitoring to a private group are also before the court as a matter of state law - - - the constitutional constraints governing the monitoring of designated sex offenders seems to be squarely presented.

Second Circuit: Volunteer Ambulance Corps Not State Actor

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Grogan v. Blooming Grove Volunteer Ambulance Corps, a panel of the Second Circuit affirmed the summary judgment of the district judge finding that the ambulance corps was not a state actor, leaving unsatisfied  the "essential prerequisite" to the plaintiff's Fourteenth Amendment claim for her termination from the ambulance corps (the BGVAC).

The opinion noted that to demonstrate state action, a plaintiff must establish both that her “‘alleged constitutional deprivation [was] caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation [is] a person who may fairly be said to be a state actor.’”  The court focused on the fairly be said to be a state actor prong, rejecting the plaintiff's argument that emergency medical care and general ambulance services  are “traditionally exclusive public functions,” similar to cases which have held fire protection and animal control within this category.   The court stated that "ambulance services in this country historically were provided by an array of non- state actors, including hospitals, private ambulance services, and, in what seems to be somewhat of a conflict of interest, funeral homes."

 

Moreover, the court rejected the "entwinement" argument, noting that she was required to show that the State was so entwined with the BGVAC management that its personnel decisions are fairly attributable to the State.  The court noted that it could

safely presume that BGVAC derives the vast majority of its funding from public sources given its $362,000 yearly contract with the Town and the contractual provision permitting the Town to audit BGVAC’s finances, Grogan has introduced no evidence suggesting that the Town appoints any portion of BGVAC’s Board or has any say in BGVAC’s management or personnel decisions. Nor has she presented any evidence to suggest that the Town played any role in the disciplinary process that resulted in her suspension. BGVAC’s contract with the Town, moreover, identifies it as an “independent contractor” and expressly disclaims any employment or agency relationship between BGVAC and the Town.

The plaintiff was pro se, so perhaps counsel could have developed additional facts that would weigh in favor of state action.  Nevertheless, the court did not seem inclined to find governmental responsibility for actions of the "volunteer ambulance" corps.

State Action in the News (Again) . . . Or "Duck Dynasty"

In case you never heard of Duck Dynasty, here's the Wikipedia scoop:

Duck Dynasty is an American reality television series on A&E. It shows the lives of the Robertson family, who became wealthy from their family-operated business, Duck Commander, operated in West Monroe, Louisiana, which makes products for duck hunters, primarily the duck call named Duck Commander. The Robertson men, brothers Phil, Si, and Phil's sons Jase, Willie, and Jep, are known for their long beards. The business began in a family shed, where Phil Robertson spent 25 years making duck calls from Louisiana cedar trees. His son Willie is now the CEO of the company. The family was previously featured on the series Benelli Presents Duck Commander and its spin-off Buck Commander, which still airs on the Outdoor Channel.
The show has broken several ratings records on both A&E and cable television as a whole; the fourth season premiere drew 11.8 million viewers, the most-watched nonfiction cable telecast in history.

But the show's popularity is in jeopardy, because the very popular patriarch of the show, Phil Robertson, gave a very unpopular interview with GQ and A&E has "suspended" him from the show.

The constitutional doctrine of "state action" comes into play because some - - - including Louisiana Governor Bobby Jindhal - - - are discussing the suspension as a First Amendment issue.  A&E, to again make use of Wikipedia, is a cable and satellite television station that is "a joint venture between the Hearst Corporation and Disney–ABC Television Group."

Of course, the text of the First Amendment begins "Congress shall make no law" and it is incorporated to the states through the due process clause of the Fourteenth Amendment, beiginning "No State Shall," thus textually expressing the doctrine of state action.  It is not that nongovernmental entities are never subject to the First Amendment as shown by the classic case of Marsh v. Alabama decided by the United States Supreme Court in 1946 and involving the "company town" of Chickasaw.  The Court there rejected the claim by Gulf Shipbuilding Corporation that it "owned" the town and could therefore prohibit the distribution of literature by Jehovah's Witnesses.  There are subsequent cases in which the Court has held that a quasi-private entity is subject to constitutional contraints based on a number of factors. (Law students needing a quick refresher might enjoy a CALI Lesson on state action.)

But in the case of A&E, there is little, if any, support for a finding that A&E could be fairly called a governmental actor and thus the First Amendment is simply inapplicable.

And the First Amendment will also have little, if anything, to do with A&E's decisions about the series entering its fifth season:

 

 

 

Daily Read: Reconsidering State Action and Reconstruction

Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

Ladies Nights?

Are "Ladies' Nights" - - - when a bar or nightspot offers women lower rates than men - - - unconstitutional as a violation of equal protection?

To even consider that issue, the threshold of state action has to be satisfied.  In an opinion issued today, the Second Circuit easily concluded that there is no state action.  The per curiam opinion in Hollander v. Copacabana applied the Lugar test, from Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).  Additionally, the panel found that the holding in Moose Lodge v. Irvis, 407 U.S. 163 (1972), in which the Court found that there was no state action by Moose Lodge despite the existence of a pervasive regulatory scheme governing the Lodge's liquor license, directly refuted the plaintiff's claim.

As the panel noted, the plaintiff has attributed these pernicious “Ladies’ Nights"  to "40 years of lobbying and intimidation, [by] the special interest group called  ‘Feminism’ [which] has succeeded in creating a customary practice. . . of invidious discrimination of men.”   This same plaintiff, an attorney proceeding pro se, who has previously sued Columbia University's Institute for Research and Gender at Columbia University, argued not only that he had standing but that feminism was a religion, claims rejected by the federal court; the private status of Columbia University would also raise a state action barrier.

[image via]

RR    (H/T Nate Teadwell)

Dr Laura's First Amendment Claim: The Problem of State Action

The United States Constitution protects individuals from government action, and not from private action (with the exception of the Thirteenth Amendment).  It is a concept most ConLawProfs discuss in our courses, focusing on cases such as Shelley v. Kraemer (1948) or the more recent Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001).

It's not a difficult concept, even though the doctrine (like all doctrines) has its obscure moments, which can be explored in a CALI offering available to law school students and professors here.

But the basic concept of the Bill of Rights protecting individuals solely from government action tends to be forgotten in the context of the First Amendment.  On too many occasions, when an argument between two people escalates so that one person over-talks the other, or says "shut up," or even kicks the other person off the show or blog, the "loser" cries a violation of the First Amendment.  Even when the "loser" is someone who would ordinarily decry constitutional "interference" between individuals.

Most recently, Dr. Laura Schlessinger, whose racial epithets on her radio show have caused criticism, has announced her retirement from the show, reportedly claiming that she wants "to regain my First Amendment rights." Sarah Palin also invoked the First Amendment in two tweets:  Dr.Laura:don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”)   Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists. And b thankful 4 her voice,America! 

Ken Paulson of The First Amendment Center has a clear and concise explanation of why this is not a First Amendment issue, including discussing state action, but also additional rejoinders to Dr. Laura Schlessinger's claims of being bullied by the left, as well as the problem of equating the marketplace of ideas with the marketplace. 

RR

Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.

RR

Kagan on Mark Tushnet and Harold Koh: Post Confirmation Hearing Responses to Senators Questions

Supreme Court Nominee Elena Kagan has submitted her written responses to post-testimony "Questions Submitted for the Record" from Senators Jeff Sessions, Chuck Grassley, Jon Kyl, Lindsay Graham, John Cornyn, and Tom Coburn. These have been added to the materials from the Senate Judiciary Committee here.       

Two of the more interesting interchanges involved the scholarship of Professors Mark Tushnet and Harold Koh.

Senator Tom Coburn was concerned with Kagan’s opinions of Mark Tushnet’s scholarship:

Q: You were dean of Harvard Law School when Professor Mark Tushnet was hired. Like you, Professor Tushnet also clerked for Justice Thurgood Marshall, and when he received an endowed chair position at Harvard, you introduced him and called him as “one of the world’s leading law scholars, particularly one of the world’s leading constitutional law scholars” and praised his “contributions to the world of scholarship.” In a 1981 law review article entitled “The Dilemmas of Liberal Constitutionalism, Professor Tushnet asserted that, if he were a judge, he “would decide what decision in a case was most likely to advance the cause of socialism.”

a. Is this one of Professor Tushnet’s “contributions to the world of scholarship?

Response: My introduction for Professor Tushnet was not intended to suggest my agreement with any particular aspect of his scholarship or any particular article. It was intended to recognize his general standing in the sphere of constitutional law scholarship.

b. How would you characterize such an approach to the law?

Response: If Professor Tushnet meant that a judge should decide cases based on her own policy views about the best result, then I would characterize that approach as contrary to the rule of law.

c. Would you endorse it? Why or why not?

Response: No. Judges should decide cases based on legal sources, not on policy or political views.

Coburn came back to Mark Tushnet a few questions later, regarding state action:

Professor Tushnet has recommended reconsidering the 1883 Civil Rights cases in which the Supreme Court held that the 14th Amendment prohibited only the abridgement of individual rights by the state, rather than by private individuals and institutions. The Supreme Court has stated: “It is state action of a particular character that is prohibited. … The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” Professor Tushnet stated:“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”

a. Do you agree with Professor Tushnet’s desire to be rid of the state action doctrine? Why or why not?

Response: No. The state-action doctrine has been repeatedly reaffirmed by the Supreme Court,and the decisions adopting and applying the state action doctrine are entitled to stare decisis effect. These decisions, indeed, function as a basic postulate of our constitutional system.

Coburn also asked, “Do you agree with the views of the Critical Legal Studies movement?” The simple response: “No.”

Senator John Cornyn discussed Professor Harold Hongju Koh's scholarship regarding "the difference between nationalists and transnationalists, whom, he says, 'hold sharply divergent attitudes toward transnational law,' and then asked:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

Response: I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

Other interesting subjects of inquiry include Sessions asking questions regarding recusal, the Second and Eighth Amendments, and many of her memos as law clerk to Justice Thurgood Marshall; Grassley on Garcetti v. Ceballos regarding the First Amendment rights of government employees,  and the relationship between the takings clause and the taxing power, Kyl on Kagan's opinion on Arizona SB 1070 and the (then-contemplated) federal lawsuit, and Coburn's concern with Kagan's "personal lack of pro bono legal services,” comparing her unfavorably to other recent nominees, including Harriet Miers.

RR

South African Constitutional Law, Polygamy, and Sexuality: Saturday Evening Review

One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001.  This anthology provides a study of the "processes of negotiation" of the constitutions as well as an analysis of the final constitution of 1996.  The University of Cape Town Faculty of Law uBuntu Project is hosting me later this month (if you are in the neighborhood, invitation here); to prepare I find myself reading and re-reading the rich literature on South African constitutionalism.  

However, even for Americans with little interest in non-US constitutions, many of this volume's essays  - - - on constitution-making, negotiation, "deadlock," the certification (ratification) process, the "key players," and the Bill of Rights - - - shed light on theories of originalist constitutional interpretation in the US.  Stephen Ellman's exceedingly important chapter comparing United States doctrines of state action and "South Africa's Socio-economic Rights Guarantees to Private Actors," seeks to use "American efforts to grapple with state action" to "illuminate the issues facing South African courts" applying a more expansive notion.  However, Ellman's essay constructs a two-way mirror: Americans can use the South African constitutional notions to "illuminate" the issues faced by courts confronting the sometimes limiting state action doctrine.

The contribution of the other co-editor, Penelope Andrews, is also vital.  Entitled "The Stepchild of National Liberation: Women and Rights in the New South Africa," Andrews discusses how women pressed their concerns and win a place at the negotiating table.  Again, this experience distinguishes the US constitutional-framing context.  Yet as Andrews notes, even in the 1990s the claims of customary and traditional law could conflict with claims for gender equality, especially in the rules about property, ownership, and guardianship of children.  

Andrews doesn't mention marriage or polygamy in this piece, although she has written about it elsewhere (on ssrn here and here); she is quoted in today's Washington Post in an article entitled "Which Mrs. Zuma Will Be South Africa's First Lady?" discussing  the ramifications of the fact that the new President of South Africa, Jacob Zuma, is a practicing polygamist.  The "First Lady" is not a position in the South African or US constitution, but for all the attention and anxiety it can generate (especially when potential heads of state are polygamous, or unmarried, or female, or perhaps divorcing) it might seem as if there should be some constitutional clarity.  As the WaPo article comments, "South Africans are still in the dark about who will be Zuma's date to galas and have dibs on the spousal office in the east wing of the president's hilltop residence in Pretoria, the administrative capital." 

Current controversies, however, do not detract from the relevance of The Post-Apartheid Constitutions. It is an excellent volume that remains timely, not only in its historical discussions but in its concerns.  The major omission in the volume is a lack of attention to sexuality issues and insufficient attention beyond Andrews' essay to gender issues.  South African constitutional law has been recognizing many sexuality rights, due in part to "sexual orientation" being a ground of discrimination in the Constitution.   Good sources on the issue include American ConLawProf Mark Kende's new book previously blogged here which has a chapter on "gay rights" and the South African Journal of Human Rights, which has had several special issues on sexuality including volume 23 part 3 (2007) and volume 20 part 2 (2004). 

Another great source on sexuality, constitutional law, and South African politics is the website website Constitutionally Speaking by South African ConLawProf Pierre de Vos (pictured above)   It is a must read for anyone trying to keep up with the legal landscape in South Africa.

RR