Constitutional Law Prof Blog

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

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

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

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

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

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

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

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

Daily Listen: The 27 Amendments

In need of a new playlist — something constitutional perhaps?

Try "27: The Most Perfect Album" available from WNYC Radiolab here.

A bit of text about each of the amendments, but the treasure is the linked songs.  For example, the Third Amendment features Palehound and They Might be Giants. Not to be missed is the Fifteenth Amendment

Not to be missed are the Fifteenth Amendment pieces by  Aisha Burns and Nnamdi Ogbonnaya.  But the whole project is worth a listen - and one can play through the list.

 

 

 

Second Circuit: Police Use of LRAD May Violate Fourteenth Amendment

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

In its unanimous opinion in Edrei v. Maguire (Bratton), a panel of the Second Circuit upheld the the denial of a motion to dismiss a complaint alleging excessive force under the Fourteenth Amendment's Due Process Clause by police officers using a LRAD - - - long-range acoustic device - - - during a protest. The defendants claimed both that the LRAD did not constitute excessive force and that they were entitled to qualified immunity because it had not been clearly established at the time of the 2014 protest that using a LRAD could be excessive force.

Chief Judge Robert Katzmann's opinion discussed LRAD, noting that the New York Police Department was using a "portable Model 100X, which also has loudspeaker and area denial functions."

The 100X’s product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X’s control panel shows a red beam emanating from the front of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION.”

The plaintiffs, who were subjected to the LRAD during a protest in New York after "a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal chokehold." During the protest,

with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high‐pitched alarm began pulsing though the streets. The defendants had activated the LRAD’s area denial function. According to plaintiffs, they had not been ordered to disperse and no such order is audible on the video.

The plaintiffs reported physical injuries, including significant ear pain, prolonged migraines, vertigo, and ringing in the ears, and most sought medical treatment.

Judge Katzmann's opinion rejected the defendants' argument that the LRAD could not constitute "excessive force."  The opinion relied on the "shocks the conscience" test as it had been explained in the Second Circuit with regard to excessive force as considering several factors: “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was . . . [inflicted] maliciously or sadistically.”  The court held that this Second Circuit precedent was not changed by Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), decided after the 2014 protest. Moreover, applying the standard to the allegations, the security threat was low, the proportionality of the force used was "stark," there were significant injuries, and there are no allegations that the police officers attempted to temper their use of force.

The court also rejected the police officers' claim to qualified immunity. The defendants argued that it was not clearly established at the time of the 2014 protest that "using force in crowd control violates due process."

But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers. This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights. Qualified immunity doctrine is not so stingy.

Additionally, the court discussed the protestors First Amendment rights and stated that "Were this not enough, a wealth of cases inform government officials that protesters enjoy robust constitutional protections."

The court did stress that the opinion was a "narrow" one.  As an interlocutory appeal from the denial of a motion to dismiss, this is expected. Nevertheless, the opinion is certainly a victory for the plaintiffs in their due process challenge to the use of LRAD.

[image: LRAD 500 x in NYC during 2011 via]

 

Federal Judge Finds First Amendment Violation by Politician Blocking Constituent on Facebook

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

 In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.

Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events. 

As a threshold matter, Judge Cacheris determined that there was state action.  This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page.  Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances.  Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge). 

Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed.  There was no neutral policy (such as a ban on profanity) which was being neutrally applied.

The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues.  Nevertheless, the judge stated that

Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.  By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.

The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.

This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.

[image by Matt Shirk via]

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

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

 In the United States Supreme Court unanimous decision in  Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment.  This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February.  Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus.  God is good" regarding a result on his parking ticket. 

The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages.  The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:

By Fekner - Own work, CC BY-SA 3.0 via

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .

While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens."  The Court noted that the present statute applies to all social networking sites including  Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media. 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric."  For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child."  Among Alito's examples are Amazon.com, the Washington Post website, and WebMD.  Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."

Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute.  The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute. 

 

Second Circuit Holds No First Amendment Claim for Prisoner's Journalistic Publication

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

Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges.  McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front. 

While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech."  This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement -  - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

Daniel McGowan via

But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007).  Soon thereafter, the BOP had instructed staff not to enforce it.  In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity.  Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation.  Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."

The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.

Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

Magistrate Orders Apple to "Unlock" iPhone of Deceased Shooter

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

A California Magistrate has issued an "Order Compelling Apple, Inc. to Assist Agents in Search" exactly as requested by the government, with the exception of the word "Proposed" crossed off in Order's title, that requires Apple to provide "reasonable technical assistance in obtaining access to data on the subject device."  The subject device is an Apple iPhone seized from a black Lexus; this is the black Lexus that was driven by the so-called "San Bernardino shooters."  The government's motion explains some of the technology involved and argues that the All Writs Act, 28 USC §1651, authorizes the Order.

The Order specifies that the "reasonable technical assistance" shall accomplish these functions:

• (1) it will bypass or disable the auto-erase function whether or not it has been enabled;
• (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and
•  (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple is resisting the Order.  In an "open letter" to customers, the CEO of Apple has stated:

Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.

We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

Over at ars technica, Dan Goodin argues:

It would be one thing for the court to order Apple to brute force this one device and turn over the data stored on it. It's altogether something else to require that Apple turn over powerful exploit software and claim that whatever digital locks are included can't be undone by a determined adversary. That's why it's no exaggeration for Cook to call Tuesday's order chilling and to warn that its prospects for abuse of such a backdoor are high.

Although the Order is directed at one "subject device," Apple's compliance with the Order would make all our devices subject to government search.

 

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.

 

 

DC Circuit Holds No Clearly Established Right Not To Be Tasered

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

In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.

Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.

Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights.  The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.

Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'"  In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case."  This "context," the court further acknowledged, depended on whether Lash was "resisting arrest." 

This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."   

Here is one of the videos of the incident:

 

The court further rejected Lash's arguments regarding the video as conclusive:

Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,”  protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.

[citations omitted]

Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.

Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser. 

 As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."

 

Welcome Race and the Law Prof Blog

An exciting new venture and promising source for race and the law scholars, teachers, and students:

Race and the Law Prof Blog

by

Professors Khaled A. Beydoun, Atiba Ellis, Brant T. Lee & Nareissa Smith

(pictured below)

Daily Video: Nancy Leong Interviews Scott Dodson, Editor of RBG Book

LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press.  The book has a terrific array of contributors.

 Worth a watch!

 

 

 

 

Second Circuit Allows First Amendment Public Employee Retaliation Claim to Proceed

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

In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department. 

Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.

Additionally, Smith had presumably been subject to an adverse action: he was suspended without pay and transferred to an administrative position.  He thereafter retired.

These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true.  However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that

The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.

The Second Circuit then analyzed whether a summary judgment was warranted under  Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:

Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.

(emphasis in original).  Moreover,

Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.

Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously. 

[image via]

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

New Jersey Supreme Court Finds Constant GPS Monitoring of Sex Offender Unconstitutional as Ex Post Facto

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

In a closely divided opinion in Riley v. New Jersey State Parole Board, the New Jersey Supreme Court has found that its Sex Offender Monitoring Act (SOMA), passed in 2007, violates the prohibition on  ex post facto laws under both the New Jersey and United States Constitutions when applied to a person whose crime was committed in 1986 and was released from prison not under any type of parole supervision.

George Riley, who is now 81 years of age, argued that the monitoring constituted punishment, rather than simply civil consequences. The majority of the court found that SOMA was penal in nature: it "looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another name does not alter its essential nature."

The majority also discussed the particulars of the GPS monitoring: the device combines the transmitter and tracking device into a single ankle bracelet that Riley experiences as heavy and causes pain when he sleeps; the device identifies Riley as a sex offender "no less clearly than if he wore a scarlet letter"; the device transmits prerecorded messages while Riley is in public; Riley must be "tethered" to an electrical outlet for one or two hours every sixteen hours and cannot be out of range of the GPS receiver; and the wearing of the GPS is not reviewable under SOMA.

The majority stressed that Riley was not otherwise subject to probation and parole, but had completed his sentence, thus distinguishing his situation from some of the other cases that had considered the GPS monitoring issue.  However, the majority did note that "North Carolina Supreme Court in 2010 upheld against an ex post facto challenge a statute that provided for GPS monitoring of sexual offenders, regardless of whether the offenders had completed their sentences." 

Importantly, the majority applied United States Supreme Court precedent in analyzing whether the New Jersey statute was punitive and specifically stated that the "New Jersey Ex Post Facto Clause is interpreted in the same manner as its federal counterpart."  Thus, the state may clearly seek United States Supreme Court review of the state supreme court's holding in Riley. Whether or not it will is uncertain, but the division on the New Jersey Supreme Court as well as divisions among state courts may tip the balance toward asking the United States Supreme Court for review.

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McCutcheon and Collins on McCutcheon at Cato Today

At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.

More information here.

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?

 

Daily Read: Deven Desai on Data Hoarding and Associational Freedom

"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits."  What should the constitutional limits be?  And what is their source?  In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai  (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."

Desai argues:

The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties.  The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.

[footnotes omitted].

Ultimately, Desai contends that "pervasive surveillance turns us into sheep."  But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake.  Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."

Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.

NSA Documents Database

Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency?  Or just want to look around?

The ACLU now has a handy database, available here.

As the announcement explains:

This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.

We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."

An important tool for scholars and advocates. 

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Illinois Supreme Court: State's Eavesdropping Statute Unconstitutional

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

Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?

In its opinion in People v. Clark, and a companion opinion in People v. Melongo, the Illinois Supreme Court held the state's statutory criminalization of eavesdropping unconstitutional.

Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.

In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."  The court recognized the ubiquity of smartphones and other recording devices.

Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private."  It gave these examples:

1.  a loud argument on the street;
2. a political debate in a park;
3. the public interactions of police officers with citizens (if done by a member of the general public); and
4. any other conversation loud enough to be overheard by others whether in a private or public setting.

Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.

Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo.  The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial.  Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark.  Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent.  The court similarly found this provision overbroad.

It will be interesting to see how the Illinois legislature responds.

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