Monday, September 23, 2013
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Thursday, August 29, 2013
Sport and speech: The Bobblehead
Monday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.
Monday discussed it in a 2006 interview:
“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”
While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.
Monday, August 12, 2013
Boobies and attempted coherence on student speech
I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.
The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.
Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).
Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.
There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).
The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.
Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.
Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.
Friday, August 09, 2013
State of public discourseFrom TV blogger Ken Levine.
Thursday, August 08, 2013
What's "Obvious" About Corporate Free Exercise?
Rick Garnett suggested recently in this space that it is “obvious” (Rick’s word) that legal entities have Free Exercise rights, and Will Baude has written a bit more cautiously that churches “or the real parties in interest behind them” probably can assert their own first amendment claims. Now, I’m just an unfrozen caveman tax lawyer, but I did once flip through a copy of “First Amendment Institutions” (and write two articles about nonprofit organizations in politics). And I think the “obvious” examples are just intuition pumps. Will argues churches very likely have their own sets of rights, while Rick says that anti-kosher laws would violate the rights of firms selling kosher products.
[UPDATE: Rick points out (see the comments) that his post doesn't quite claim that entities have FE rights qua entities, though his phrasing of that distinction may be too subtle for duller readers (ahem). So substitute for "Rick," with some modest amendment, "Adler," or "Bainbridge" or others, such as this piece by Scott Gaylord of Elon.]
I would say it’s obvious that regulation of churches or religious practices can interfere with individual rights to free exercise. If my religious beliefs include shared worship with a community of likeminded believers, certainly direct restrictions on church (or other religious community) activity can interfere with my exercise of those beliefs. But why does the organization itself need to be able to assert its own claims? Corporations (including nonprofit corporations, such as most churches) can only sue by virtue of state laws giving them that power. Are Will & Rick claiming it is “obvious” that states are constitutionally obligated to give legal personhood to abstract entities?
This may seem a fine distinction, but asserting that law is concerned with the rights of entities, not just the people in them, elides an important element of individual choice. Believers who choose to invest their money in a highly regulated industry can reasonably be presumed to go in with their eyes open to the possibility that regulation will impose a variety of burdens. If they don’t like that, they should take their money elsewhere. That’s a very different thing than a total prohibition on some key religious practice, as in Rick’s kosher example. The degree of imposition is just much smaller in my example, because the government leaves open many alternative avenues for religious expression. Is it zero burden? Of course not, but this is a balancing test, isn’t it?
Of course, SCOTUS also makes this same overly-easy substitution in Citizens United. Why is the right of political expression a right of the entity, not its members? Can’t the members express their political views individually (at least absent some special meaning to speaking together as a legally-recognized group)? Maybe forming a collective facilitates speech. But then the issue is to what extent it is permissible for government to reduce its prior commitments to facilitating expression. That field is treacherous, to be sure. But by simply assuming that the entity embodies its members’ rights, we dodge what ought to be at the center of the debate.
Free speech counterfactual
Mike Dorf and Thomas Healy have an interesting exchange on the following counterfactual: What if Holmes had not changed his mind about the freedom of speech and dissented in Abrams? Would we still have developed our liberal, speech-protective model of the First Amendment? Would others--Justice Brandeis, Learned Hand, Zechariah Chafee, Justices Black or Douglas (not to mention Justice Brennan, who is not discussed despite New York Times)--have laid the intellectual foundation and got a majority of the Court to go along? Healy has is doubts, while Dorf is intrigued with the idea that Brandeis' model--from Whitney--would have carried the day over Holmes' marketplace.
The discussion is triggered by Healy's forthcoming book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America.
Update: A reader points me to a 1999 Constitutional Commentary symposium, organized by Jim Chen, on Constitutional Butterflies (i.e., the butterfly effect applied to constitutional law). It includes a contribution by my colleague (and former GuestPrawf) Tom Baker on Holmes' fortuitous train ride with Learned Hand (described in Gerald Gunther's bio of Hand), the effect it had on Holmes' vision of free speech, and the effect that Holmes' vision had on later First Amendment development. Interestingly, Healy argues in his post that Hand questioned and ultimately renounced his original position on free speech (part of the reason Healy believes that, absent Holmes' switch, Hand would not have been the one to carry the speech-protective mantle).
Friday, July 26, 2013
More fan speech
Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball. Two other things.First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.
Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech
We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.
But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.
Friday, July 19, 2013
Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling
As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force. The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research. The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:
There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.
Read the whole case here.
The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime." The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases.
The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."
Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information. Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.
I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.
This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.
Wednesday, July 10, 2013
Procedure in constitutional challenges, ctd.
Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.
The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?
Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.
I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.
A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper
In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story.
In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.
Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.
The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.
Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.
Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern? The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.
Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.
Friday, July 05, 2013
Sports and patriotism
From ESPN's Howard Bryant. I'm not sure this is as new a phenomenon as he suggests or that sports used to be apolitical, but I agree that it has become more pervasive and, to some, obnoxious. I particularly like the closing paragraph, where he points out the inconsistency (if not outright hypocrisy) of leagues and the media immersing games in compulsory politics, then criticizing players who speak out for their own causes and ideals, demanding that they "shut up and play."
Wednesday, July 03, 2013
According to this CBS story, Dan Balz's book on the 2012 election reports that Mitt Romney was seriously considering selecting New Jersey Governor Chris Christie as the Republican vice-presidential nominee, but was dissuaded by an SEC regulation governing campaign contributions:
I found this striking and was curious whether the reg was constitutional, but I can't actually figure out what rule the CBS story is referring to. I did find this long discussion of the SEC pay-to-play reg, but I can't actually figure out what the story is referring to. Readers -- any idea? Is there a rule that stops banks from contributing to home-state candidates? You were very resourceful about Guthrie.
In the end, it was money, not chemistry, that kept Christie off the GOP ticket. A "pay to play" regulation from the Securities and Exchange Commission prevented the country's largest banks from donating to candidates and elected officials from states in which big banks were located. If Christie, the governor of New Jersey, were added to the ticket, Romney's campaign would have been barred from accepting any campaign contributions from Wall Street - a critical source of cash for the GOP candidate, formerly a private equity manager.
Thursday, June 20, 2013
Judicial rhetoric in AID
SCOTUS today decided Agency for Int'l Development v. Alliance for Open Society In'tl, holding 6-2 (per the Chief; Scalia dissenting, joined by Thomas; Kagan recused) that requiring a recipient of federal HIV/AIDS funds to adopt a policy opposing prostitution violates the First Amendment. I don't have a lot to say about the opinion, other than it is interesting to see Rust v. Sullivan once again discussed as a funding case and not a government-speech case (which it had sort of morphed into). Instead, I just want to draw attention to the language and rhetoric flying around both the majority and dissenting opinions.
Justice Jackson and the 70-year-old Barnette get some love from the Chief. After saying that the program "requires [recipients] to pledge allegiance to the Government's policy," Roberts insists that "we cannot improve upon what Justice Jackson wrote for the Court 70 years ago," going into Jackson's "fixed star in our constitutional constellation" quotation.
The Chief also throws in his usual turns of phrase--"an offer that cannot be refused", funding activities "on its own time and dime", as well as the "pledge allegiance" line above. These are becoming quite common in Roberts opinions, especially his First Amendment cases. I still cannot decide if they are distracting or make for good judicial writing.Of course, Roberts cannot hold a candle to Justice Scalia in this respect, especially when Scalia is in dissent and is not trying to guide lower courts or hold a coalition together and can go with guns blazing. Thus, the majority "pussyfoots" around the issue of coercion (or lack thereof) in the funding program and it makes a "head-fake" at unconstitutional conditions. The idea behind the limitation--government enlisting the aid of those who support its ideas--is a "matter of the most common common sense." And the "elephant in the room" is that Government does not really force anyone to do anything by denying funding. (On that last one, I appreciate that Scalia did not mix his metaphors by either making the elephant pink or having it weigh 800 pounds).
Scalia is especially hot in creating hypotheticals. He uses Hamas as an example of an organization that is quite good at distributing public welfare, but reasonably could be excluded from a food-distribution program (even if Hamas were a U.S. organization). Or he insists that a "federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it." Or note the examples he uses to show that government funding of a particular viewpoint obviously discriminates against those who disagree--"Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates." That last one was striking--the opposite of sexual abstinence is free love and not those who recognize sex as a part of any monogamous relationship? And does anyone even use the term "free love" anymore?
Also, recall that last week in Myriad Genetics, Justice Scalia refused to join the portions of the opinion discussing details of genetics and molecular biology, some of which seemed fairly anodyne. There has been some discussion about Scalia's apparent uncertainty about the science. Well, his AID dissent shows he has no such hesitation (humility?) about economics ("Money is fungible. The economic reality is . . . they can expend greater resrouces on [other] policies. . . . [T]his is a real and obvious risk.") or communicable diseases ("prostitution, by which HIV is transmitted").
Finally, a more substantive point. I quote Scalia's closing flourish because it does say something about his views of government programs and unconstitutional conditions:
Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.
In other words, all who work on the government's behalf or support are just like government officials and can be subject to the same limitations as those who are, by virtue of their elected or appointed position, actually wielding government power. Is that right? And should it be? And, if taken literally, what does it mean for other sreas of the law? For example, should a recipient of federal funds now be treated as a state actor for 14th Amendment/§ 1983/Bivens purposes?
Wednesday, June 19, 2013
Making easy cases complicated
The Tenth Circuit last week decided Cressman v. Thompson, reversing the 12(b)(6) dismissal of a complaint challenging, on First Amendment grounds, the "Sacred Rain Arrow" image on Oklahoma's license plates. The decision, while correct, seems a lot more complcated than it needed to be on several lines, but also illustrates some interesting points.
1) The court spends some initial time on standing, not because there is any real doubt about an injury, but over whether the six state officials were the proper defendants, which the court squeezed into the traceability prong. In other words, the court treated as part of traceability (i.e., causation) whether each named officer defendant is responsible for enforcing the allegedly unconstitutional law that the plaintiff is challenging.
But this strikes me as another example of standing swallowing the entire analysis in anticipatory constitutional litigation. In damages actions, the suability/liability of the defendant under the applicable law is a merits issue; there is no reason for it to become an Article III issue in an Ex Parte Young equitable action such as this. The court does acknowledge the overlap between standing and Ex Parte Young/sovereign immunity, as the propriety of the named defendant is the "common denominator" of both inquiries. To me, however, that just shows that what should be a single merits inquiry--who is liable to the plaintiff--is being misconstrued in jurisdictional terms under multiple doctrines.2) There is a lot of discussion of Twiqbal plausibility over what should actually be legal issues and conclusion--whether the picture is symbolic speech (because it would be understood as stating a particularized message) and whether having to display the image (or pay extra money for a specialty plate) constitutes compelled speech under Wooley v. Maynard. None of these are facts subject to plausibility analysis. The court should not be concerned with the plausibility of the plaintiff's legal arguments, only the correctness of those legal arguments. All the plaintiff should have to plead is that he is being made to display the symbol or pay money to avoid displaying it (which really is unconstested); the rest is legal analysis.
3) This case does expose a few problems with various aspects of speech doctrine. One is how clear or articulable a drawing or symbol must be to constitute symbolic speech; there is a split as to the effect that Hurley (which held that speech need not contain a single clearly articulable message) has on Spence (which suggest that symbols must in order to be protected). Another is whether recent government speech cases undermine or overrule compelled speech cases such as Wooley. A third, which the court was more emphatic, is whether Wooley applies to all compelled messages or only ideological ones (the district court read Wooley to apply only to ideological messages, such as "Live Free or Die"). The court mostly avoided resolving these legal issues by falling back on the plausibility of the plaintiff's allegations.
This case really does not appear to be a close First Amendment cases--it is as close to being on all fours with Wooley as one can get and I frankly am surprised a state would still believe it could compel someone to display any message on a license plate. For whatever reason, both the district court and the court of appeals (even in reaching the right conclusion) made this case more difficult than it needed to be.
Tuesday, June 18, 2013
Libel Law, Linking, and "Scam"
Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.
Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible” and that his “ventures rarely—if ever—work.” In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.
Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.
More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one. The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”
It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court, “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”
As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view. Instead, the Milkovich Court held that a purported "opinion" can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based. [This analysis is freely borrowed from this article at pp. 924-25, full citations are included there.]
Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack
Saturday, June 15, 2013
How Could Surveillance Violate the First Amendment?
Howard asks an interesting question about surveillance and the First Amendment. In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms." But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression. So what might Justice Sotomayor be talking about, and is there any merit to it?
The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes. There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases. There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it. But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era. And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.
The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits). (E.g. here and here.) While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.
But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views. By contrast, from what we know of the NSA programs, they do not have this problem. Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate. While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim.
Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering. The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."
So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution. But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.
Surveillance and the First Amendment
A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?
Friday, June 14, 2013
Barnette at 70
Today is the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette, one of the most significant early free speech cases, particularly rhetorically. When I attend the game at Marlins Park this Sunday and I refuse to stand when they play "God Bless America" during the Seventh Inning Stretch, I have Barnette to thank. Interestingly, this anniversary follows on the heels of a list serv conversation about how teachers and school administrators routinely ignore (or forget about or don't know about) Barnette and force students to participate in flag rituals.
After the jump is a post from John Q. Barrett's (St. John's) The Jackson List (a list serv of regular posts and information about Justice Jackson--Barrett is writing a biography of Jackson). It includes some interesting links, including a discussion with two of the girls involved in the case.Today, June 14, 2013, marks the 70th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson's opinion for Court, in West Virginia State Board of Education v. Barnette.
The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.
The case was brought on behalf of students who were Jehovah's Witnesses. In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag. For that refusal, they were expelled from school. Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.
In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute requirement violated the children's First Amendment rights, which exist to strengthen "individual freedom of mind in preference to officially disciplined uniformity..."
A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone. In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court's decision to uphold Pennsylvania’s flag salute requirement. (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“Fifth Column” hysteria that was sweeping the country. Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah's Witnesses in the Pennsylvania case.)
By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.
Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court's opinion in Barnette. Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson's summary paragraphs:
The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Jackson’s very finest judicial opinions.
* * *
· West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
· A 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
· A Jackson List post from earlier this year, “Arguing Barnette”—click here; and
· A 2010 Jackson List post, “The Newest Barnette Sister”—click here.
As always, thank you for your interest and please share this with others.
And in the United States, happy Flag Day! It was just a coincidence that the Supreme Court decided Barnette on Flag Day in 1943, but in history that coincidence is powerful and instructive.
Monday, June 10, 2013
Cert. denied in gruesome images case
SCOTUS today denied cert. in Scott v. Saint John's Church in the Wilderness, involving an injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age" in an area near a church just before, during, and just after worship times. Jessie Hill wrote about the case last month.
In my recent article on the jurisdictional issues in New York Times v. Sullivan, I argued that SCOTUS has a less-than-stellar recent record of keeping an eye state courts adjudicating First Amendment defenses in state-law claims. Although a case such as Scott still would have been reviewable only on certiorari (and not subject to mandatory review) even prior to 1988, the Court in past years was more willing to hear cases such as this one. Particularly where the lower court decision seems to fly in the face of two recent decisions (Snyder and Brown). State courts also seem increasingly willing to issue anti-speech injunctions, with SCOTUS not inclined to monitor them closely.
This denial also shows the Court backing away in the First Amendment area. In its first few years, the Roberts Court seemed inclined to take a lot of cases in this area, particularly free speech, deciding 10 or 15 cases some terms. This past term has one free speech case (and we are still awaiting a decision); next term so far has one Establishment Clause case. I wonder why the change.
Friday, May 24, 2013
"Sport as Speech" and Non-sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Thursday, May 23, 2013
Gruesomeness and the First Amendment
As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.
Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.
A few random thoughts follow the jump:
First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.
At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.
Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children.
Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.
Police Body Cams
This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.
Wednesday, May 22, 2013
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
Monday, May 13, 2013
Mike Wallace interviews Justice Douglas on free expression (1958)If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Monday, April 29, 2013
First Amendment on campus
Here are a couple of stories about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.
The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.
Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.
My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.
For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."
Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.
Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.
Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.
Wednesday, April 24, 2013
Animal cruelty law rejected
Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.
Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.
Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.
Thursday, April 18, 2013
Why fan speech matters
If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.
Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.
Tuesday, March 12, 2013
State courts and the First Amendment
One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.
But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.
On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.
Monday, February 25, 2013
Political Participation and Libel Law
The news today is that Sheldon Adelson is suing the Wall Street Journal for libel. So here's my question. If Adelson is deemed a public figure because of his very public involvement in electoral politics, then does imposition of the actual malice standard constitute a burden on that political participation, in violation of the First Amendment? My intuition is that that can't be right: the whole question of whether someone is a public figure turns largely on whether the person has injected himself into the public discourse. Since presumably you do that by engaging in speech, it can't be an unconstitutional burden on free speech to impose a higher liability standard: if it were then much of the "public figure/higher fault standard" structure is suspect.
But then what about Davis v. FEC, the "Millionaire's Amendment" case? If Davis stands for the proposition that a person's spending of his own money to influence the outcome of an election can't trigger burdens on that person or his speech (or, rather, that such burdens have to satisfy a high standard), then isn't that what's going on here? Adelson participates in politics -- that leads to his becoming a public figure -- which in turn leads to his having to satisfy the actual malice standard -- that leads to any alleged libel likely going uncorrected.
Or is the answer that libel is different because the plaintiff, by being a public figure, can vindicate the reputational interest that libel is designed to protect to begin with? So in that case Adelson doesn't lose anything by virtue of his having a tougher time in court -- he can protect his reputation through self-help, and that's all that libel law ultimately cares about. If that's the right analysis then I'd be tempted to ask by Davis himself couldn't just spend his own money and get his message out: that's his self-help, which remains in competition with the opposing (or in this case, libelous) speech that stays out there in the market. And in both cases, the end result is more speech. But that's a more detailed argument, that gets to the merits (or lack thereof) of Davis itself.
Tuesday, February 19, 2013
Dorf on cameras in the courtroom
Mike Dorf offers some thoughts on cameras in the courtroom (particularly SCOTUS and appellate courts), in light of Justice Sotomayor's recent announcement that she would not support allowing cameras into oral argument (a switch from the position she took during her confirmation hearing). He does a good job rejecting the arguments that people will not understand what is going on and that the justices and/or attorneys will grandstand for the cameras. He also adds a nice First Amendment twist--at the very least, the burden of persuasion that these harms may occur rests with the opponents of cameras (the "censors") rather with than the proponents of cameras. I had not thought of that in my prior comments, but it is a great point.
Monday, February 18, 2013
Why no First Amendment?
So far this term, the Supreme Court has only one First Amendment case on its docket--Agency for International Deveopment v. Alliance for Open Society International, Inc., which considers whether a federal law requiring organizations to explicitly oppose prostitution and sex trafficking as a condition for receiving federal funds to provide HIV and AIDS programs overseas. This contrasts with the previous years of the Roberts Court, which had seen a general uptick in First Amendment cases from the late Rehnquist Court, to the tune of 10-15 cases per year.
Any thoughts, speculation, guesses, or general spitballing as to the drop-off this term? One-year fluke? No cert-worthy cases? Has the current Court reached a general consensus on First Amendment (at least Free Speech Clause) matters for the moment?
I participate in an annual end-of-term panel on the Court's First Amendment cases and the panel organizers last week circulated an email wondering what we should talk about (not sure we can get two hours on whether AIDS prevention programs are government speech for Rust purposes). One possibility is to try to speculate on what exactly is going on this year.
Update: And as if on cue. The case likely will be for next term, however.
Monday, February 11, 2013
Eppur si muove
There is a good story by Adam Gopnik in the current New Yorker about Galileo--next year marks the 450th anniversary of his birth and there are several new books about him. This got me thinking about Galileo's status as a hero (or martyr) for free expression and about the free-speech ideals in play in his story.
On one hand, Milton mentioned the aging and imprisoned Galileo in Areopagitica (Gopnik says Milton visited Galileo during the latter's house arrest) as an example of the evils of official licensure. We often point to Galileo and his punishment by the Inquisition as Exhibit A in the need for epistemological (or epistemic) humility--that we cannot know what is true, what we hold as true may come to be shown false, and that the authorities should not enforce one version of scientific, political, or other truth. He represents the man proven right by history, thus the paradigmatic example of why government should not have the power to declare facts and ideas wrong.
On the other hand, as Gopnik describes, some (notably Bertolt Brecht) have taken the position that Galileo was not a hero because he recanted rather than subject himself to torture or death for his beliefs. Others (including historian Thomas Mayer, who has written two new books about Galileo's trial and the Italian Inquisition) insist that Galileo contributed to his own problems through hubris and pugnacity. He migh have avoided trouble by not taunting Pope Urban VIII or by presenting heliocentrism as a theory, on par with the Church's view, rather than as the one correct position that he himself believed. And several scholars argue that the trial, and its status as an illustration of the worst type of censorship, "is shrouded in myth and misunderstanding."This leaves several interesting questions. Is Gopnik right that the myth of the trial in fact "seems pretty much right: Galileo wrote a book about the world saying that the earth goes around the sun, and the Church threatened to have him tortured or killed if he didn’t stop saying it, so he stopped saying it"? Or is that too simple? Should we accept a free speech regime that draws distinctions between what can be said generally and what can be advocated for as reflective of the speaker's true beliefs? Can a free-speech regime impose epistemological humility on individual speakers themselves (i.e., if the authorities must be humble as to what they know, must all speakers)?
Finally, is punishment and martyrdom the only way for someone to stand up for their free speech rights? Or does truth advance sufficiently simply because truth (particularly scientific truth) establishes something as reality, no matter that the government may insist the scientist must say about it. As Gopnik puts it, "the scientist can shrug at the torturer and say, Any way you want me to tell it, I will. You’ve got the waterboard. The stars are still there."
Monday, February 04, 2013
Saturday, February 02, 2013
The nature of online speech
At CoOp, Danielle Citron and Mary Anne Franks have numerous posts about the problem of revenge-porn sites. Keeping with that theme of misogyny on the internet, here are posts by Ann Friedman at New York Magazine and Amanda Marcotte at Slate offering advice on how to deal with "the creeps, the weirdoes, the bug-eyed nutters, and the sleazeballs in fedoras" who show up in on-line comments sections. Marcotte in particular makes what I think is a nice point: These days everyone owns a computer, which means that the creepy guy on the subway or the paranoid guy in the bank line also have access to comments sections. But, she argues, if this guy is just annoying in the former contexts, he should not be legitimately powerful in the latter context.
I am not a woman and I write on a blog read by a relatively small, niche audience of thoughtful and intelligent people; so I will not try to be overly sanguine about the trash (and purveyors of trash) who go after female opinion writers on-line. But I would try to build something on Marcotte's point. There is not necessarily more vitriol or more hateful, misogynistic speech out there than twenty or thirty years ago, nor are there necessarily more people who hold such beliefs. But there are infinitely more forums in which they can express those views, pretty much at will and without any external filter. That obviously is one thing the internet has wrought. But the internet also has wrought infinitely more forums (this blog included) for thoughtful, intelligent commentary about a host of things by a lot of different people.
The question, of course, is whether the benefits of the latter are worth the costs of the former.
Wednesday, January 30, 2013
Does Not Translate?: How to Present Your Work to Real People
Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images? How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?
Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.
Tuesday, January 22, 2013
Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause
If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible. (Here is the trailer). I say this even if you're not a law professor who teaches church/state law. If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.
In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected. This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious. Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.
So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life. Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever. At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected?? Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.
Or the New York Giants, for that matter. Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies. His fandom is the one thing that gives his life meaning. He dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio. The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.
I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems. The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday. What if Paul refused to work on Sunday? Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)? I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.
Do others use film in this way, or related ways, in their courses?
Wednesday, January 02, 2013
The Citizens United Link to the Affordable Care Act LitigationIt’s not too often that I try to draw a line between my own field of Election Law and the much less familiar field involving the Religion Clauses. That’s a universe I tend to leave to the very capable hands of folks like Rick Garnett, Michael Helfand, and Paul Horwitz. But recent litigation did part of the work, and it raised important issues that, I think, the Supreme Court is ultimately going to need to consider. And it has to do with who, or what, is a person.
In 2010, the Supreme Court handed down its opinion in Citizens United v. FEC, which, among other things, struck down limitations on corporate independent expenditures in the Bipartisan Campaign Reform Act of 2002. One important element of the opinion was the conclusion that the identity of the speaker—in that case, a for-profit corporation—could not be subjected to special restrictions on political expenditures.
This conclusion, according to one justice, prompted pithy bumper stickers regarding corporate personhood. But it’s important to note that even the dissent agreed on larger point: that corporations have First Amendment rights. It’s just that the dissent argued that Congress had a compelling reason to single out for-profit corporations (because of, among other things, their perpetual life, and their ability to aggregate wealth through special tax structures); the majority found no such compelling reason to single out one corporate form over others.
And the dispute was, uniquely, about for-profit corporations. The Supreme Court had previously accepted expenditure limitations placed upon for-profit corporations but routinely rejected similar limitations for media corporations and non-profit “ideological” corporations. In Citizens United, the Court, revisiting its precedent, rejected the argument that Congress had articulated any meaningful distinction that merited a set of rules restricting expenditures for for-profit corporations.
A similar debate is brewing in the context of the Patient Protection and Affordable Care Act. Employers offering health insurance plans must include coverage for FDA-approved contraceptives (including what the FDA calls “emergency contraceptives,” sometimes known as “abortifacients”), sterilization procedures, and other reproduction-related services.
A very small set of “religious employers” is exempt. But there are many more for-profit corporations owned and operated by religious adherents. These corporations may not fit the narrow exemption for “religious employers,” and religious adherents have argued vociferously that even ostensibly “secular” businesses fall under the scope of the Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (There are, of course, nuances between constitutional interpretation and statutory interpretation, which may yield different results.)
Do they? District courts in Colorado, the District of Columbia, and Missouri have punted on the issue. A district court in Oklahoma did the same, in part; but, it also found that, absent precedent that “secular, for-profit corporations” have free exercise rights, plaintiffs failed in their Free Exercise Claims. It also suggested that RFRA applied to “religious organizations, not general business corporations.” Justice Sotomayor, in denying an injunction, specifically noted that the Supreme Court has not addressed “similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders.”
Well, do they? Can the Supreme Court ascribe a telos to for-profit corporations? Does it matter that Hobby Lobby is closed on Sundays? That Mardel Christian bookstores are “dedicated to renewing minds and transforming lives”? If there’s a possible theological dimension to Division I FBS football, would we (or should we) care?
The same questions arose in Citizens United, and they arise here again. There, no one really disputed that media and non-profit ideological corporations had First Amendment protection. Here, no one really disputes that, say, a religious group called O Centro Espirita Beneficiente Uniao Do Vegetal has First Amendment protection.
When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim.
But, would anyone hazard to make a bolder claim?
Friday, December 14, 2012
Doing the waive at the ballpark
Via Nathaniel Grow (who teaches Legal Studies in the business school at Georgia): The image at left (click to enlarge) is a page from the October issue of Yankees Magazine and features the team's ticket policy. Note the underlined language in the inset at the top--fans acknowledge that team policies banning foul/abusive language and obscene/indecent clothing do not violate their free speech rights and they waive any free-speech objections to those policies or their enforcement.
I find it interesting that the team is now framing its attempts to regulate fan expression explicitly in free-speech terms. It suggests their recognition of my core argument--that fan expression, even profane or objectionable fan expression, is subject to First Amendment protection and analysis. This policy is an effort to wiggle away from that legal reality. Of course, the idea of "acknowledg[ing]] and agree[ing]" that something does not violate one's rights when it probably does is pretty Orwellian. It goes well beyond a waiver of a claim into a compelled agreement to an alternate reality.
More fundamentally, even as a straight waiver, it cannot possible be enforceable. Assume for the moment the Yankees are a state actor in managing the ballpark--I argued they were with respect to the old Yankee Stadium, which was owned by the City of New York, although the analysis changes for the new ballpark, which is privately owned but (largely) publicly built. The government cannot condition access to a public forum on a person waiving their right to challenge constitutionally suspect limitations on their speech in that forum (imagine a parade permit saying "As a condition of accepting this permit, you agree that police can halt the parade if your speech is objectionable"). Nor is this saved by the fan's compelled acknowledgement that "such time, place and manner of [sic] the restrictions are reasonable." While it is telling that the team is using those precise words, a TPM restriction must be content-neutral; a ban on foul language and indecent clothing is so obviously not content-neutral.
Finally, I do note that the waiver only applies to dirty words and dirty clothes and not to other possible free-speech violations, such as compelling fans to remain standing by their seats for "God Bless America" or other forced patriotism. I wonder if that is an oversight or if the team has genuinely given up on those efforts.
Tuesday, November 20, 2012
Exposing racist speech, shaming racist speakers
Following on my discussion last week about the piece at Jezebel outing racist tweets by random high-schoolers after President Obama's reelection: Hello There, Racists is a Tumblr that collects racist tweets, Facebook posts, blogs, etc., along with identifying information such as name, school (a cursory look at the site suggests that most of those caught are minors), and photograph. (H/T: My colleague Tracy Pearl). The identifying information is put out by the posters themselves on their own social media sites, which makes this slightly different than the Jezebel post, which went digging to find the kids' schools. The goal of both is to prompt social consequences--professional, athletic, academic--for posting obnoxious ideas. Emily Bazelon at Slate criticizes this sort of crowd-sourced "outing," arguing 1) public shaming is unlikely to cause them to rethink their ideas or statements and more likely to just make them indignant and 2) teenagers don't fully understand how exposed they are on social media. Much depends on whether we believe teenagers understand (or should understand) what ideas are morally wrong and socially unacceptable and thus should bear the consequences, however long-term, of espousing (seemingly proudly, to read some of the posts) such ideas.
Two things to watch going forward:
1) Are some public schools going to find their students on this site and punish them for their posts? And if so, how will those cases play out in court? As I wrote previously, assuming these posts were not written on school time, no coherent conception of student speech would authorize school punishment for this expression.
2) Can the creator of the Tumblr keep the readership on a leash? As this post describes, one of the blogs captured on the Tumblr had to be taken down because threats were made to the subject of the blog. The creator of the Tumblr admonished his readers: "[I]f I get credible reports of threats, I will have to take down this blog. So if you want racists to be exposed, do not be threatening or intimidating.They deserve to lose their jobs and scholarships, but not threats of any kind." Is this the editor preemptively protecting himself on the off-chance that one of his readers does something stupid (no way he would be legally liable, but what ethically responsible is another story)? Is it possible to engage in this sort of crowd-sourced public shaming without things getting out of hand? Are the shamers likely to be as irresponsible as those they are trying to shame?
Monday, November 12, 2012
What about the First Amendment?
Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama's re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed "petty and vindictive."
Worse, Morrissey's stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school "codes of conduct" are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.
This also makes Morrissey's piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.
Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.
Sunday, November 11, 2012
Catalyzing Sports Fans (and the Rest of Us)--early draft now available
I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.
In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs).
Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties.
Monday, November 05, 2012
This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading "Obama Vandals, stealing only stiffens our resolve," which I infer means they also had signs stolen or destroyed.
I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not "American." I am reading the sign to say something like "stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value." If so, I want to push back on that.
I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.
This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner's interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.
One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of much of the dislike for President Obama.
Friday, October 26, 2012
The remedy to be applied is distancing speech
I have not written about the numerous controversies that have sprung up over anti-Islam ads by the American Freedom Defense Initiative on public-transit billboards throughout the country. The ads feature the slogan "In any war between the civilized man and the savage, support the civilized man" and urge people to "Support Israel/Defeat Jihad." Transit authorities have sought various ways to deal with ads that many find offensive and which have sparked fears of both anti-Muslim discrimination and Muslim violence. Efforts to block the ads have, quite correctly, failed--transit billboard spaces are public fora and the objection is pretty clearly content- and viewpoint-based.
One solution to post disclaimers next to the AFDI ads, stating that Muni "doesn't support the message" (San Francisco's Muni) or, for those who want legal detail, "This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA's endorsement of any views express." (Washington, D.C.'s WMATA). Pam Geller, a conservative blogger, co-founder of AFDI, and driving force behind this ad campaign, derided the San Francisco plan as "the manifestation of Sharia in Western society," which seems just a tad overwrought.Obviously, government can respond to private speech in a public forum; a disclaimer distancing the government from AFDI's message is one very good way to respond to or oppose a message being espoused in the forum. We might question whether it is necessary, whether anyone would seriously believe the transit authority endorses every message on every billboard in the Metro stop. But making that disassociation explicit seems an appropriate way for government to proceed.
But there arguably is something different at work here than simple government speech. Here, the transit authorities are responding to a message through and with the message itself. The government is slapping its own message right next to (and as part of) the private message and using the original message as the vehicle for its own. This then looks less like government counter-speaking to the private speaker than the private speaker being compelled to counter-speak to itself. By making the counter-speech part of the private speech, it looks a lot like mandatory warnings, which ordinarily raise concerns outside the commercial speech context. So the transit authority could post signs throughout the forum explaining designated public forums, its obligation to accept the offensive ads, and its non-endorsement of the message; but its power to place that sign next to particular billboards from which it wants to distance itself is more limited.
Alternatively, perhaps the disclaimer is better understood not as government counter-speech (which receives no First Amendment scrutiny) and more as a condition on, or term of access to, the traditional public forum (akin with having to pay a fee), which does receive constitutional scrutiny. Then the question is how broadly government applies the new practice. It would be plainly unconstitutional if the government singled out only this speaker or message for a disclaimer or if it singled out only certain speakers or messages in content-based terms. The WMATA policy apparently will apply to all "viewpoint" ads, a non-legal term that I am guessing means noncommercial ads. That is better than only targeting AFDI. But distinguishing commercial and non-commercial is still content-based, so WMATA must justify the distinction; the likely argument is that only noncommercial speech requires a disclaimer because only noncommercial speech creates a risk that the authority will be associated with the controversial or offensive message (although I wonder how true that is). Assuming that these disclaimers are more than ordinary government speech and thus are subject to some First Amendment scrutiny, the transit authorities would be better off using disclaimers to all ads of all kinds.
Monday, October 15, 2012
A New Essay on the Roberts Court and the Press: Not a Free Press Court?
The abstract for my new essay , Not a Free Press Court?, is as follows:
The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.
I wrote this small essay, which is now available on ssrn, for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).
Tuesday, October 02, 2012
What were they thinking? or Not so bad?
A colleague sent me this story from the Jewish Daily Forward: Amazon will no longer sell a 250-piece Jigsaw puzzle featuring a picture of Dachau Concentration Camp. The puzzle, marketed as appropriate for ages 8-and-up, met with objections from German legislators, as well as the head of the Dachau memorial.
I want to raise two points and I ask them honestly, not trying to be provocative.
1) I was struck by the comment that the head of the memorial wanted an investigation into whether prior sales of the puzzle were unlawful under German law, once again demonstrating how the U.S. departs from other countries on the subject of the freedom of speech. We can debate whether the puzzle is offensive or in bad tatse. But unlawful?
2) Is this really that offensive? The picture was taken by Robert Harding, a well-known international travel photograph who has had many photos made into puzzles. He also has taken a number of photos of Dachau. The picture itself is not disrespectful (at least reports don't suggest that it is); it is an image of a historical place where something awful happened, something that we should remember. I assume no one would object to anyone selling the photograph (although maybe I am wrong on that).
It seems to me that puzzles are simply one way of creating or presenting a picture or photograph. There is nothing wrong with having that picture be somber or meaningful or emotional, as long as the picture created is respectful or tasteful. We have puzzles of great works of art; why not also of photos of historically significant places or events. There were comments in the story about a "toy" being a "trivialization" of the events there. But this is not Dachau action figures or Dachau trading cards. Perhaps it is inappropriate for children and eight is too young as the target audience for the puzzle. But the call was for a total ban on (and suggestion of illegality of) all sales, not just a change in marketing.
Update: I am guesting at CoOp this month and I cross-posted this. One commenter over there suggested that anything that facilitates "never forget," even in the form of a jigsaw puzzle, serves a beneficial purpose. He also poses a great hypo: What would our reaction have been if Iran had banned those puzzles because they acknowledged Dachau as a special place, thus acknowledging the Holocaust? Would we be troubled by a combination of denial of free expression and denial of the Holocaust?
Monday, September 10, 2012
Gee, that's big of you
"Upon reflection, he has his First Amendment rights," Del. Emmett C. Burns Jr., a Baltimore County Democrat, said in a telephone interview. "And I have my First Amendment rights. … Each of us has the right to speak our opinions. The football player and I have a right to speak our minds."
Glad we got that straight. Still, it is frightening that it took "reflection" for a public official to realize that "the football player" has First Amendment rights and the same right as him to speak his opinion. This does show that Hadar was onto something in her comment to the first post--Burns does regard football players as objects and not fully informed members of society.
Saturday, September 08, 2012
Activist athletes, tone-deaf politicians
Now here's a fun free-speech controversy.
On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.
Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter. What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.
We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.
Update: The New York Times has a short piece on the controversy, mentioning a number of current and former players who have come out in support of marriage equality and arguing that it reflects a shift in the NFL's political culture.
Friday, August 31, 2012
More free speech and ideology
Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.
I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?
Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.
Scalia, judicial ideology, and flag burning
Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.
As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.
More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.
Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.