Saturday, March 30, 2019
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
Friday, March 15, 2019
In his opinion in Cockrum v. Donald J. Trump for President, Inc., Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign. The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.
Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.
However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.
For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right. This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action. The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.
Counts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort. The court dismissed the state tort law claims without prejudice.
The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.
Monday, February 25, 2019
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.
Wednesday, February 13, 2019
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.
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.
Thursday, June 29, 2017
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.)
Saturday, September 3, 2016
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."
Tuesday, February 23, 2016
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.
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.
Monday, September 29, 2014
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.
Thursday, December 19, 2013
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.
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:
Friday, September 21, 2012
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.
Wednesday, September 1, 2010
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)
Friday, August 20, 2010
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).
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.
Monday, July 19, 2010
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.
Saturday, July 10, 2010
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.
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.
Saturday, May 9, 2009
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.
Wednesday, April 29, 2009
The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit. With a bit of tinkering, this litigation could be adapted to a constitutional law examination with any number of issues.
Magistrate Judge Kevin Fox recommended dismissal of the complaint based upon standing. Fox's order, available at 2009 WL 1025960, provides:
The plaintiffs' alleged injury, which is purportedly based upon the content of, or the discriminatory impact flowing from, the Women's Studies program at Columbia, is not an “injury in fact,” since the plaintiffs do not allege they enrolled in a Women's Studies course(s) at Columbia that caused them to suffer a direct injury occasioned by firsthand exposure to the content of the Women's Studies course(s), or that they were discriminated against, by being denied the opportunity to participate in Columbia's Women's Studies program.
In support, the Magistrate Judge cites Moose Lodge No. 107 v. Irvis, 407 U .S. 163 (1972) (finding that the plaintiff lacked standing to challenge the Moose Lodge's racially discriminatory membership policy, because he never applied for membership). The Magistrate's discussion signals the equal protection issue lurking here. Of course, had the analysis proceeded further, Moose Lodge would also be pertinent to deciding the state action issue, given that Columbia University is not a public university.
The District Judge, Lewis Kaplan, adopted the Report and Recommendation in his Order. Although brief, Judge Kaplan's Order made three additional points. First, Judge Kaplan rejected the notion that Magistrate Fox should have recused himself because he is a graduate of Columbia University. Second, Judge Kaplan considered an objection to the Magistrate's description of the action as being brought pro se. As Kaplan noted, this is not true as a "purely technical matter" since Hollander is an attorney and the second plaintiff in the case, but even if true such an argument "betrays a remarkable instinct for the capillaries" given that the pro se designation actually worked to Hollander's benefit under the more liberal pleading rules afforded pro se litigants. Third, Kaplan stated:
In his final paragraph, the judge labels the claim "absurd" and dismissed the case.
Friday, October 10, 2008
The Branchflower investigative report concluding Governor Palin abused her power as governor to settle a personal matter makes interesting reading. (A pdf link to the 263 page Branchflower report is available at the Alaska Daily News and the New York Times, and many other outlets as well).
But what strikes me most is the role of Sarah Palin's husband, Todd Palin. I'll admit I have a personal reaction. I've known too many heterosexual women (including legal academics and lawyers) who use the phrase "my husband" incessantly, as if appealing to some authority in a conversation with me. Although, I will say, I haven't ever had any of the women with whom I've worked invite their husbands into meetings or ever had their husbands call me and give me job instructions.
One could start thinking about whether I would be equally appalled if the gender roles were reversed - - - what if one of my male colleagues had their wives or partners in meetings? And what did I really think of of Hillary Clinton's role in the White House? And one could start imagining same-sex couple constellations. Indeed, Todd Palin makes a similar point in his deposition, available as pdf here.
Instead, however, I'm thinking STATE ACTION.
It is easy to imagine a hypothetical, although to make it a little simpler, assume the person who might bring a constitutional challenge against Todd Palin was not a state employee, so that the question of state action rests more squarely on the shoulders of Todd Palin. In "all fairness" - - - as the language from Edmonson v. Leesville Concrete provides - - - could we call Todd Palin a "state actor" ? Does that depend on how one "fairly" interprets the intertwining of a spousal relationship and work relationships?