Constitutional Law Prof Blog

CALI for Constitutional Law: New Lesson on Same Sex Marriage, Windsor, and Perry

CALI has been updating its lessons this summer, including its Constitutional Law lessons.

There is an entirely new one "Marriage and Same-Sex Marriage in Constitutional Law" covering the basic constitutional issues and arguments in marriage with an emphasis on same-sex marriage litigation. It emphasizes understanding the Supreme Court's 2013 decisions in Hollingsworth v. Perry and United States v. Windsor, involving the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act (DOMA), respectively. The last section includes questions concerning the arguments in the issue of state bans on same-sex marriage that will be reaching the Court soon.

 

Other ConLaw Lessons of interest:

Abortion

Contemporary Commerce Clause

The Early Commerce Clause

Eleventh Amendment

Marbury v. Madison

Ripeness and Mootness

Standing

State Action

 

 

Academic Freedom in Saskatchewan

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

Can a tenured professor, serving as a dean (or executive director) of the university's school of public health be terminated for publicly criticizing the university's restructuring plans?

This does not involve the new Kansas social media policy for academics, but the question that arose at the University of Saskatchewan this week;  there's a good overview and links to the letter itself in this article from the Globe & Mail.

For Americans the situation seems close to the famous letter to the editor protected by the First Amendment in  Pickering v. Board of Education.  But recall Mr. Pickering was merely a teacher while Professor Buckingham at University of Saskatchewan was a dean charged with implementing the very policies he was criticizing, a situation akin to the one the Sixth Circuit confronted in Dixon v. University of Toledowhen considering a university human resources officer who made public statements inconsistent with the university's anti-discrimination policy that she had to enforce.

In recognition of this distinction, it seems now Buckingham has only been relieved of his duties as an administrator and may return to campus, seemingly complete with tenure.

Canadian ConLawProf Michael Plaxton (at the University of Saskatchewan) has a nuanced discussion in the Globe and Mail today.

 

Academic Freedom in Kansas

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

Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.

An amended policy has finally been adopted.

It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment. 

Additionally, the new policy also attempts to digest the current state of First Amendment law:

3.  The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:

i.  is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;

ii.  when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;

iii.  discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or

iv.  subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.

In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.

While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues.  The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.  

Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined?  Or will the policy merely chill speech?

 

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

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

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

The mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional

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

Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.

One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate."  But, the Third Circuit stated, that is not a "constitutional flaw."

"A Funeral" by Anna Archer via

The challenged statutory provisions included ones that:

(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.

The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.

In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:

The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names.  A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.

 [citation omitted]

ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case.  It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.

The Supreme Court's Heavy First Amendment Docket this Term

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

Last Term, the United States Supreme Court's First Amendment docket was decidedly light.  This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.

Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here.  The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas).  The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.

 This Term, there is a bounty of First Amendment cases before the Court.

In alphabetical order, they include:

• Conestoga Wood Specialties Corporation v. Sebelius &  Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act.  The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine.  Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.
  
  
• Harris v. Quinn
  The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers.  Our extensive coverage of the issues is here.  Oral arguments were held January 21 and our analysis is here.
  
  
• Lane v. Franks
  The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator.  Our discussion of the grant of certiorari January 17 is here. 
  

• McCullen v. Coakley  
  This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.
  
  
• McCutcheon v. Federal Election Commission
  This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees.  Oral arguments were held October 8, 2013 and our analysis is here.
  
  
• Susan B Anthony List v. Driehaus 
  This case is a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.
  
  
• Town of Greece v. Galloway  This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.  The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity."   The Solicitor General filed a brief supporting the town.  Oral arguments were held in early November and our analysis is here.
  
  
• United States v. Apel  
  Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction.  At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.
  
  
• Wood v. Moss
  Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue.  The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators.  Oral argument is scheduled for March 26, 2014.

ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term.  And First Amendment watchers, scholars, and practitioners may see some important changes.

Happy New Year! Happy Grading!

Wishing everyone "grading zen."

 

[image via]

Sunday Dress: Protesting "Obamacare" Wearing a Guy Fawkes Mask

While the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.

As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.  

For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood,  including Judge Rovner's hypotheticals.

More about the arrest and Florida statutory scheme is here. 

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

Supreme Court Justices by Donkey Hotey

 

In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby  essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees. 

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.

 

Continue reading

Daily Video: After Shelby County v. Holder

The Court's decision last Term on the constitutionality of the Voting Rights Act in Shelby County v. Holder is noteworthy for its impact (see our posts here and here).

Here's a terrific exploration in video form of the decision and its impact on Pasadena, Texas, by Kali Borkoski of SCOTUSBlog. 

 

This short clip would be an excellent in-class introduction to the issues - - - and could be updated depending on the outcome of the local election.

 

What the Best Law Teachers Do

Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding volume, What the Best Law Teachers Do (Harvard).  As the title says, the book is a compilation of the best practices of the best teachers in our field.  It should be at the top of the reading list of any law professor.

 

We're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book.  (Other con-law-familiar names include Julie Nice and Heather Gerkin.)  Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof.  Check it out.

Tweet by University of Kansas Professor Results in Suspension: First Amendment Ramifications

According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard. 

Guth tweeted:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.

There is also the question of  the lack of due process accorded to Professor Guth, as some have noted.

But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin.  Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee.  On this view, his speech should be protected under the First Amendment.  Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.

Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).

Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.

 

 

 

Read more here: http://www.kansascity.com/2013/09/19/4494140/ku-rebukes-journalism-professor.html#storylink=cpy

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

Constitute: The World's Constitutions On Line

The folks at the Comparative Constitutions Project created an excellent new resource, Constitute, an on-line, searchable, and topic-tagged collection of the constitutions of the world.  (H/t to Michael Huggins.)  The site is quite user-friendly and offers a terrific and easy way to bring comparative constitutionalism into your classroom or to search for comparative provisions in world constitutions for your writing.

Constitute currently includes every constitution in force as of September this year, with plans to include a version of every available constitution written since 1789.

Fourth Circuit: The First Amendment, Facebook, and a Sheriff's Election

The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity.  The court reverses in part the grant of summary judgment to the sheriff by the district judge.

As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here,  and "the established jurisprudence governing the discharge of public employees,  because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980). 

An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech."   The district court had concluded that “merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection,” but the Fourth Circuit panel disagreed.  Its discussion of  Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs

 did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically warned his employees not to support [his rival] Adams through Facebook."  Roberts also seemingly specifically  "threatened that Adams supporters would not be reappointed."

Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question.  Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.

Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.

The majority concludes that, at the relevant time, “a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons,” and, on this basis, it determines that Sheriff Roberts is protected by qualified immunity with respect to his discharge of [the three plaintiffs]. In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation.

This case will most likely be cited and known for its finding of "like" on Facebook as speech.  But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.

[image via]

Teaching and Learning the Irony of Marbury v. Madison: 1L Performance Pieces

Teaching and learning Marbury v. Madison (1803) can be challenging.  As Steven Schwinn has highlighted, I've presented at AALS on innovative ways to use powerpoint using Marbury as an example.  And I've also authored the CALI Lesson on Marbury v. Madison, which stresses understanding the case's historical importance and recognizing its use in contemporary constitutional litigation.

Marbury v. Madison is not only iconic, it's ironic. One way to have students "own" the irony is to have them create a single powerpoint slide that represents the meaning of the case's ironies. This is no easy task. In The Ironies of Marbury v. Madison and Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391(2004), Con Law Prof Samuel Olken explained the various levels of irony in the decision, but the central one on which we focus in class is Marshall's solidifying the (greater) power of judicial review to declare an act of Congress unconstitutional by refusing the power of jurisdiction granted by Congress to issue a writ of mandamus to Marbury.

But students are not limited to powerpoint slides; they can use any creative way to portray their point. 

This year, two students, Daniel McCarey and Chloe Serinsky submitted a composition and posted it on You Tube where it will join the ranks of other takes on Marbury, from a serious talking head version to the explicit language rap version that we also discussed.

Their version is indebted to Alanis Morissette's song "Ironic" and arguably uses irony in a more correct (if more legal scholarly) sense.

  

They've posted their lyrics on the You Tube site.  The description of judicial power as having "more juice" is nice, isn't it?  But I do love this:

Statute in the left hand
Constitution in the right
Judicial review was the power
To strike that statute outta sight

A different group of five other students also took a musical tack.  Collaborating, 1L students Alexandra De Leon, Alexandria Nedd, Carolina Garcia, Steffi Romano, and Vincce Chan, submitted a power point slide with the music from Drake's song

Started from the Bottom Instrumental

and their rewritten lyrics for a composition now entitled "From the Congressional Dream to the Judicial Machine." Here's a sample:

Congress just wants credit where it’s due
You say it’s written in the constitution…says who?

Extending the Supremacy Clause was Marshall's mission
Refusing Section thirteen to keep the appellate and not the original jurisdiction
Declining more power, but acquiring Judicial greatness
Marshall limited Legislative power by striking down the excess

 Oh how ironic,
Refusing power made the Supreme Court iconic ...

 

Michigan State Professor Removed From Teaching Responsibilities After Political "Rant"

As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.  

Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity.  For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award. 

A person in the classroom taped Penn and  Campus Reform, a project of the conservative Leadership Institute, produced the video below:

  

Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos,  Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection.   Indeed,  the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."

However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it  opined that such a concept is limited to universities and does not extend to high schools.   As a university professor, Penn may have a better chance at making an academic freedom argument.

This could make a terrific in class exercise for ConLawProfs teaching First Amendment.

UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti.  This would substantially improve Penn's position if adopted by the Sixth Circuit.

UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation). 

UPDATE 3: Listen to an interview with ConLawProf Mae Kuykendall of MSU about the incident.

What The Best Law Teachers Do: Conference June 2014

The Institute for Law Teaching and Learning's Summer Conference hosted by Northwestern University School of Law, "What the Best Law Teachers Do," will be held June 25 - 27, 2014, in Chicago.

 

The conference flows from the book What the Best Law Teachers Do , published by Harvard University Press, that  introduces readers to twenty-six professors from law schools across the United States, featuring close-to-the ground accounts of exceptional educators in action. The Conference will feature interaction with these instructors and learning more about their passion and creativity in the classroom and beyond.

Confirmed presenters at this conference include Rory Bahadur (Washburn University School of Law), Cary Bricker (University of the Pacific, McGeorge School of Law), Roberto Corrada (University of Denver, Sturm College of Law), Meredith Duncan (University of Houston Law Center), Paula Franzese (Seton Hall University School of Law), Heather Gerken (Yale Law School), Nancy Knauer (Temple University, James E. Beasely School of Law), Andrew Leipold (University of Illinois College of Law), Julie Nice (University of San Francisco School of Law), Ruthann Robson (CUNY School of Law), Tina Stark (retired, formerly Boston University School of Law), and Andy Taslitz (American University Washington College of Law).

They teach a wide variety of courses across the curriculum including constitutional law.

The co-authors of What the Best Law Teachers Do, Sophie Sparrow, Gerry Hess, and Michael Hunter Schwartz, will provide a framework for the presentations and a global sense of the takeaway lessons from their study.

 

Daily Read: Bennett Capers on Stop and Frisk

Law prof I. Bennett Capers (pictured right) has a terrific op-ed in The New York Times today about Floyd v. City of New York, the "stop and frisk" opinion we discussed yesterday.

Capers starts off with a personal perspective, analyzes the problem and opinion in accessible terms, and then most interestingly concludes:

That still leaves the question, “What now?” Mayor Bloomberg is sure to appeal Judge Scheindlin’s decision, both in the court of appeals and the court of public opinion. But that’s not the only option.

He could actually welcome Judge Scheindlin’s decision to appoint an independent monitor to supervise reform. Mr. Bloomberg already claims crime reduction as part of his legacy. It’s not too late for him to claim that and more: that he reduced crime and finally did so in a way that was fair, egalitarian and not racially discriminatory. And it’s certainly not too late for his successor.

New Yorkers will know that the identity of Mayor Bloomberg's sucessor will be determined at the conclusion of this contentious election period, in which (in)equality is shaping up to be a central issue.  But Capers' piece is definitely worth a read no matter where one lives.

RR

First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos

While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions.  Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.

 The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti. 

 

[image of Trayvon Martin by Shepard Fairey via]

Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland.  After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records.  Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.

 

The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper.  Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.

[Rolling Stone Cover via]

  Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending.  Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.

Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.

RR