Friday, January 4, 2019
SCOTUS Grants Certiorari on First Amendment Challenge to Trademark Rejection of Immoral or Scandalous Mark
The Court granted certiorari in Iancu v. Brunetti regarding the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the federal registration of “immoral” or “scandalous” trademarks. The Federal Circuit Court of Appeals held that the section violates the First Amendment. At issue was a rejection to a trademark to Brunetti's apparel line named "fuct." The Federal Circuit Court concluded with an interesting analogy to copyright protection and the First Amendment:
The trademark at issue is vulgar. And the government included an appendix in its briefing to the court which contains numerous highly offensive, even shocking, images and words for which individuals have sought trademark registration. Many of the marks rejected under §2(a)’s bar on immoral or scandalous marks, including the marks discussed in this opinion, are lewd, crass, or even disturbing. We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.
We hold that the bar in § 2(a) against immoral or scandalous marks is unconstitutional because it violates the First Amendment.
The Federal Circuit relied heavily on Matal v. Tam (2017) involving the band "the Slants" in which the United States Supreme Court decided that the "disparaging" provision of the same section of the Lanham Act violated the First Amendment. Recall that the Federal Circuit had also decided Matal v. Tam (f/k/a In Re Simon Shiao Tam) en banc, and the litigation in Brunetti has always been somewhat in the shadow of Tam. The Federal Circuit's opinion, rendered more than a year ago, contended that while the "immoral” or “scandalous” provisions might well be viewpoint restrictions as in Tam, they were certainly content discrimination under the First Amendment.
The concurring judge of the Federal Circuit panel in Brunetti argued that the section was amenable to a narrowing and saving construction limited to obscenity (although he agreed that because the name of Brunetti's apparel line was not obscene the trademark was unconstitutionally denied registration). The United State Supreme Court's purpose in granting certiorari is not immediately obvious, but the Under Secretary of Commerce's petition for certiorari picked up the concurring opinion's contention and argued that the Court should not declare the provisions facially unconstitutional.
[image: "news headline pullover hoodie" via]
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]
Wednesday, January 2, 2019
For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported. The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.
Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."
The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.
image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.
Friday, December 28, 2018
In its opinion in Alliance for Open Society International v. United States Agency for International Development, the Second Circuit split in its application of the United States Supreme Court's 2013 opinion in the same case.
Recall that United States Agency for International Development v. Alliance for Open Society International involved a First Amendment challenge to a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. In the relative brief opinion by Chief Justice Roberts, the Court held the spending conditions of requiring an "anti-prostitution pledge" were unconstitutional because they were not limits of the government spending program itself that specified the activities that Congress wants to subsidize, but were "conditions that seek to leverage funding to regulate speech outside the contours of the program itself."
The subsequent litigation revolved around the reach of this holding. For the district judge and the majority of the Second Circuit panel, the holding included the plaintiff organizations and their "foreign affiliates." For dissenting Judge Chester Straub, the "foreign affiliates" possess "no constitutional rights" and the United States government was free to deny them funding for failure to comply with an otherwise unconstitutional condition. For Judge Straub, the majority misconstrued the United States Supreme Court's opinion, extending it to some vague and ill-defined set of "closely aligned" ("whatever that may mean") foreign entities. But the majority opinion, authored by Judge Barrington Parker, rejoined that it is not the First Amendment rights of the foreign entities that are violated, but the domestic organization's speech that is compelled. For the majority, if the government — and by extension, the dissenting Judge — "is right, then Chief Justice Roberts was wrong."
In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution." This refers the 2011 year end report by Chief Justice Roberts in which he stated:
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices. As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions.
Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position. And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.
Wednesday, December 5, 2018
In its opinion in Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, a divided panel of the Third Circuit rejected a challenge to New Jersey's prohibition of large capacity magazines (LCM), defined as magazines capable of holding more than ten rounds of ammunition, N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j). The challengers sought a preliminary injunction based on violations of the Second Amendment, the Equal Protection Clause, and the Fifth Amendment's Taking Clause; after an evidentiary hearing the district judge denied the injunction.
On the Second Amendment claim, the Third Circuit majority agreed with the general analysis laid out by the Second Circuit in New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (2015). Judge Patty Shwartz, writing for the majority, first determined that a "magazine" is an arm regulated under the Second Amendment. Judge Shwartz then considered whether the regulation of a specific type of magazine, namely an LCM, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee," by inquiring whether the type of arm at issue is commonly owned, and “typically possessed by law-abiding citizens for lawful purposes." The court noted that the record showed there were "millions" of such magazines and then assumed "without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." The court then turned to the level of scrutiny to be applied — a question left open by the Court in Heller v. D.C. — by inquiring how severely the challenged regulation "burdens the core Second Amendment right."
Here, the court held that the New Jersey law did not severely burden the core Second Amendment right to self-defense in the home for five reasons and thus determined that intermediate scrutiny should apply. The court then held that the State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens’ safety," including reducing the lethality of active shooter and mass shooting incidents. The court rejected the challengers' argument that the rarity of such incidents should negate the state's interest, finding instead that the "evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents." The court further found that the LCM ban was a sufficiently close fit to the state's interest in promoting safety.
It was on the Second Amendment issue that Judge Stephanos Bibas dissenting, arguing that strict scrutiny should apply and that even if it does not, the New Jersey statute fails intermediate scrutiny. For Judge Bibas, although the majority stands in good company: five other circuits have upheld limits on magazine sizes," the courts err "in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof."
While the Second Amendment challenge was at the heart of the case, the majority also rejected the challengers' claims under the Takings Clause and the Equal Protection Clause. On the Takings Clause, the majority held that there is not actual taking, and no "regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines." On the Equal Protection Clause, the challengers faulted the Act because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so.The majority did not engage in a robust analysis, but held that "retired law enforcement officers are not similarly situated to retired military personnel and ordinary citizens, and therefore their exemption from the LCM ban does not violate the Equal Protection Clause."
In short, the Third Circuit's opinion is part of a trend of determining that intermediate scrutiny applies to various regulations of high capacity firearms or magazines and upholding state regulation. Most likely a petition for certiorari will follow this opinion and it will be interesting to see whether the United States Supreme Court continues its own trend of denying such petitions.
[image: double-drum magazine, which holds 100 rounds, via]
Wednesday, November 28, 2018
The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover. Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment."
As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states."
The Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.
The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:
And one question is incorporating the right, and the other question is the scope of the right to be incorporated.
And, really, what you're arguing is about the scope of the right.
On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.
In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held.
If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.
Monday, November 26, 2018
On November 28, 2018, the United States Supreme Court will hear oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and arguably whether this includes forfeitures.
The Indiana Supreme Court's brief opinion clearly concluded that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." The Indiana Supreme Court cited footnote 13 of McDonald v. City of Chicago, in which a majority of the Court found that the Second Amendment was incorporated to the states through the Fourteenth Amendment (with a plurality relying on the Due Process Clause). Recall that in footnote 12, Justice Alito's plurality opinion in McDonald listed the provisions of the Bill of Rights that had been incorporated with citations, while in footnote 13, Justice Alito listed the few remaining provisions not incorporated, also with citations.
Justice Alito's citation in footnote 14 of McDonald is to "Browning-Ferris Industries of Vt. v. Kelco Disposal (1989) (declining to decide whether the excessive-fines protection applies to the states)." Yet as the Indiana Supreme Court notes, in its 2001 opinion in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Court stated that the Fourteenth Amendment made the "Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States." The Indiana Supreme Court decided that the Cooper Industries statement was dicta and that the McDonald footnote omission of Cooper supported that conclusion ("we will not conclude lightly that the Supreme Court whiffed on the existence or meaning of its precedent").
Whatever the status of precedent, however, the Court is poised to resolve the question of the incorporation of the Excessive Fines Clause to the States. The amicus briefs tilt heavily in this direction. One possible wrinkle is the relationship between forfeiture and excessive fines, with the State of Indiana arguing that the issue is whether there is a right to proportionality in forfeiture proceedings that is sufficiently fundamental to meet the incorporation test (whether the right is deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty).
Friday, November 2, 2018
The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.
Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.
Tuesday, October 23, 2018
CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.
An America Divided: The Kavanaugh Nomination
The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .
We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline: January 15, 2019
full call and submission details here
Wednesday, October 17, 2018
In a talk at the University of Minnesota Law School, Chief Justice Roberts spoke and emphasized the independence of the judiciary after a contentious confirmation process and reported diminishing confidence in the courts.
Video from C-SPAN here:
Tuesday, September 4, 2018
In its Report entitled The Civil Rights Record of Judge Brett Kavanaugh, the Legal Defense and Education Fund, Inc. of the NAACP supports its opposition to the confirmation of Judge Kavanaugh to the United States Supreme Court.
At just shy of 100 pages, the Report details concerns regarding Kavanaugh's record in areas such as executive power, criminal justice, qualified immunity, voting rights, campaign finance, reproductive rights, Second Amendment, and access to justice issues such as standing and pro se litigants. But importantly, the Report makes clear:
even before considering the opinions he has authored, the speeches he has given, and his full legal record, the following is true: Judge Kavanaugh’s nomination is tainted by the influence of reactionary groups in his selection by the President and by the President’s assertion that his nominees will target and overturn settled Supreme Court precedent. A woefully inadequate document production is thwarting the Senate’s “advice and consent” function and the ability of the American public to determine whether they want their Senators to support this nominee. And perhaps most significantly, the President’s credibility has been sapped by the ongoing investigations that raise questions about the legitimacy of his occupancy of the Oval Office and the vast powers it confers, such as the nomination of Supreme Court Justices. This highly unusual and critical context powerfully bears on our assessment of Judge Kavanaugh’s nomination.
Yet the report does delve deeply into Kavanaugh's decisions and reaches conclusions. For example, after a discussion of his decisions about campaign finance, the Report states:
Judge Kavanaugh’s campaign finance record provides four overarching themes. First, Judge Kavanaugh appears hostile to campaign finance regulations, seeming to be unwilling to uphold regulations beyond a narrow anti-corruption rationale. Second, Judge Kavanaugh’s BCRA interpretation [in Bluman v. Federal Election Committee] about the scope of issue-advocacy expenditures would allow foreign actors to engage in thinly veiled “issue advocacy” that deepens racial and religious division leading up to elections. Such a narrow interpretation of the BCRA prevents it from barring foreign actors who influence U.S. elections in concrete ways and increases the likelihood of the use of these racial appeals during the next federal election, an important tool of suppressing the votes of communities of color. Third, as evident in Emily’s List [v. Federal Election Commission], Judge Kavanaugh appears willing to reach out unnecessarily to decide issues in this context. Fourth, Judge Kavanaugh would likely revisit the soft-money limits on contributions to political parties as justice.
At several points, the Report suggests questions and specific focus for the Senate questioning. The hearings begin today.
Monday, August 27, 2018
In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution.
The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018. However, recall also that the United States Supreme Court issued a stay shortly thereafter. In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment."
As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.
Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:
we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
[emphasis in original].
The November election is in 70 days.
Wednesday, August 22, 2018
In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party.
In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment. The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002. The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence." The court summarized the state of First Amendment law after Black:
First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts.
For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "not only through use the officers’ names, but via other facets of the lyrics. They reference Appellant’s purported knowledge of when the officers’ shifts end and, in light of such knowledge, that Appellant will “f--k up where you sleep.”
A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints." Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were
not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.
Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.
The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.
Thursday, August 2, 2018
In an op-ed in the Los Angeles Times Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.
Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.
Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:
Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.
Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.
Tuesday, July 10, 2018
There is obviously much to read and discuss regarding the President's nomination of D.C. Circuit Judge Brett Kavanaugh but two pieces from the Washington Post today stand out.
First, Aaron Blake considers Kavanaugh's comment, made immediately after thanking the president for the nomination, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Banks characterizes this statement as "thoroughly strange and quite possibly bogus." As Banks notes, it is a "completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate," although perhaps it is also "difficult, if not impossible, to disprove." It seems, Banks concludes, a "thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims."
Second, law professor Nancy Leong in her op-ed argues essentially that men need to enter the conversation surrounding abortion in a more honest manner: "Mathematically speaking, millions of men have such [abortion] stories. The one-in-four women who have had an abortion did not get pregnant on their own." Leong references the amicus brief by women attorneys regarding abortions as an effective communication with (soon to be former) Justice Kennedy and implies that a similar brief by men is long overdue. "For decades, men have benefited from the availability of safe and legal abortion. It’s time for men to start taking threats to reproductive freedom personally."
Monday, July 2, 2018
In a recently updated and forthcoming article, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, by Christine Kexel Chabot (pictured) of Loyola-Chicago, she set out to explore whether or not Justices timed their retirements for political effect.
Justices’ political retirement goals have often turned out to be wishful thinking. Some Justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and Justices who timed their retirements politically had limited success in obtaining like-minded replacements.
A fascinating read.
Tuesday, June 26, 2018
In its opinion in Trump v. Hawaii, a closely divided United States Supreme Court found that the so-called "travel ban" or "Muslim ban" did not violate the Establishment Clause.
Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involving standing.
The Court's majority opinion, authored by Chief Justice Roberts, spends substantial space on the statutory issue, ultimately concluding that the Proclamation is within the President's authority under 8 U.S.C. §1182, a provision of the Immigration and Nationality Act.
On the constitutional issues, Chief Justice Roberts writing for the majority finds there is standing, but concludes that the Proclamation does not violate the Establishment Clause. The Court rehearses some of the President's statements regarding a "Muslim ban," but — in a passage which will be oft-quoted — states that
the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
In making this assessment, the majority, finds the statements essentially insignificant. The Court applies the rational basis standard derived from Kleindienst v. Mandel (1972) which the majority stated applies "across different contexts and constitutional claims" when considering Executive authority. Thus, according to the majority, as long as the Executive act "can reasonably be understood to result from a justification independent of unconstitutional grounds" it will be upheld. The majority briefly considered its equal protection cases involving animus (interestingly, the majority does not discuss McCreary County v. ACLU of Kentucky (2005), an Establishment Clause case involving intent), but rejected the equal protection cases' applicability:
The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.”
Instead, the majority states that the Proclamation results from a worldwide review process (echoing the opening words of the Solicitor General at oral argument), and three "additional features" including removal of three nations since the first ban, significant exceptions, and a waiver process.
Noteworthy in the majority is also its disavowal and essential overruling of Korematsu v. United States (1944), one of the so-called Japanese internment cases, and states that it is "wholly inapt to liken that morally repugnant order [in Korematsu] to a facially neutral policy denying certain foreign nationals the privilege of admission."
Four Justices dissented. The dissenting opinion by Breyer, joined by Kagan, argues that the Proclamation's "elaborate system of exemptions and waivers" points to the conclusion that "religious animus" played a significant role in the Proclamation. Breyer recommended that the issue be remanded for further factfinding, but on balance, the evidence of antireligious bias was now sufficient to find the Proclamation unconstitutional.
The dissenting opinion by Sotomayor, joined by Ginsburg, devotes itself entirely to the Establishment Clause issue and concludes that the Proclamation, which "masquerades behind a facade of national-security concerns," is nevertheless motivated by anti-Muslim bias and "runs afoul of the Establishment Clause's guarantee of religious neutrality." Sotomyor's opinion critiques the majority for providing a "highly abridged account" of the President's public statements regarding Muslims that does not "tell even half the story," and provides almost seven pages of statements, tweets, and retweets, and also notes that "despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam."
In addition to comparing this situation with Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993, in which the Court found unconstitutional the city's prohibition of animal sacrifice as motivated by bias against the Santeria religion, and Korematsu v. United States (1944), as discussed above, Sotomayor's dissenting opinion stated:
Just weeks ago, the Court rendered its decision in Masterpiece Cakeshop, which applied the bed rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi); Masterpiece(KAGAN, J., concurring) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political community.’ ”
The majority did not cite Masterpiece. Neither did Kennedy's brief concurring opinion which closed with what seemed to an attempt at an admonition:
An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
In its closely divided opinion in National Institute of Family and Life Advocates (NIFLA) v. Becerra, Justice Thomas writing for the Court found California's FACT Act regulating "crisis pregnancy centers" violates the First Amendment.
Recall that the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The majority's opinion found the regulations as to both the licensed and unlicensed pregnancy centers violated the First Amendment.
As to the required notice for licensed pregnancy centers, the majority found it was a content-based regulation subject to strict scrutiny under Reed v. Town of Gilbert (2015). The Court rejected the category of "professional speech," relied on by the Ninth Circuit, stating the "Court’s precedents do not recognize such a tradition for a category called “professional speech.”" However, the majority opinion recognized that the Court had "afforded less protection for professional speech in two circumstances," but stated that neither "turned on the fact that professionals were speaking." First, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the majority discussed the more deferential review accorded to laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” However, the majority found Zauderer inapplicable because "the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available." "Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic." Second, citing Planned Parenthood of Southeastern Pa. v. Casey, the majority acknowledged that the Court had rejected a First Amendment challenge to a law requiring physicians to obtain informed consent before they could perform an abortion.The majority distinguished Casey, however stating that:
The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.
The majority's opinion states that regulating medical speech is especially problematical given that "Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities, quoting language regarding the Chinese Cultural Revolution and Nazi Germany.
Even if strict scrutiny did not apply, the majority stated that "the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it."
As to the unlicensed notice, the majority found that it did not survive even under Zauderer, because it was “unjustified or unduly burdensome.”
Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements.
In a concurring opinion, Justice Kennedy, joined by Roberts, Alito, and Gorsuch, argued that the California law was viewpoint discrimination.
Monday, June 25, 2018
The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.
Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:
in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.
Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.
Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.