“Live Free or Die” Validly Circumscribed in Time of Public Health Emergency, New Hampshire Superior Court Finds

Binford, et al. v. Sununu, Governor of the State of New Hampshire, No. 217-2020-cv-00152 (Merrimack Sup. Ct.)

The Superior Court in the State of New Hampshire has denied plaintiffs’ request for injunctive relief from the governor’s emergency order prohibiting public gatherings of fifty or more persons during the time of the COVID-19 viral epidemic. 

Plaintiffs challenged the order on federal and New Hampshire Constitutional grounds, arguing that the governor lacked authority to issue an unenforceable order which would interfere with rights of assembly and religion.

The Superior Court denied the plaintiffs’ emergency motion on March 18th, and after hearing, dismissed the case on March 20.  

The court observed that the governor possesses emergency powers which may be used to protect the lives of the public during the present pandemic.  The current use of such powers is all the more apt when of short duration: the emergency order by its terms will expire on April 3.  

The court noted that the governor’s exercise of emergency powers are subject to circumscription by the legislature, and may be addressed by further judicial review should the need arise.

There is no formal written opinion at this time.  The hearing on the motion was closed to the public, but news coverage has been provided from several sources, as an audio record of the hearing has been provided to the press..


Governor’s March 16th Emergency Order

Emergency Motion for Temporary and Permanent Injunctive Relief

Opposition to Motion for Injunctive Relief

Court Upholds Governor’s Order: New Hampshire Union Leader

Court Upholds Ban on Large Gatherings: Seacoast Online

 

Not Exactly the Remedy Plaintiff Had In Mind: Federal Judge Denies Injunctive Relief Against Alleged Unicorn Trademark Infringers, Observing Public Health Crisis is Real, But Unicorn Crisis is Not

Art Ask Agency v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto, No. 20-cv-01666 (N.D. Ill.)


Plaintiff sought an emergency order to bring to a halt alleged infringement on unicorn and elf designs, which if granted would involve third parties domestically and internationally.  The federal court, strapped for resources in light of declared national and state emergencies, brooked plaintiff no mercy when, having been advised that the court would not schedule the hearing as plaintiff requested, plaintiff renewed its demand.

The court’s pointed opinion serves not only as a shot across the bow to litigants demonstrating extraordinary, yet imprudent, zeal in extraordinary times, but offers homespun 19th century legal wisdom:  “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” 1 Jessup, Elihu Root 133 (1938). Hill v. Norfolk and Western Ry. Co., 814 F.2d 1192 (7th Cir. 1987).

Sure to be quoted to litigants and clients alike in coming days.

Just Lawful Chortles, But Frets:  The trial court was well within reason to put counsel on notice that repeatedly pressing its cause would not work, and particularly not in times of emergencies of the court’s and the nation’s own.  Through the quote from Root the court did, in fact, offer counsel a way to soften the blow to the client, albeit sardonically.  

Yet the reliance on ‘national emergency’ may itself soon wear thin.  At the heart of this case, and the court’s order, is the issue of enforceability, not pestiness.  Courts do not like to issue orders that cannot be effectuated, and rightly so. This is particularly true of orders that would affect entities not before the court, which would occur if the relief requested by Art Ask Agency were granted. It would not have consumed a great deal of judicial resources to mention this in the order denying reconsideration of the scheduling order. 

Although counsel everywhere will no doubt make use of this opinion to illustrate to clients what approach not to take at present, no one, and we may hope the courts included, looks forward to expansion of the “national emergency” rationale to cause even further limitations on the process of the courts.

Art Ask Agency v. The Individuals, et al., No. 20-cv-1666 (N.D. Ill.).

 

Some Kind of Hearing, Updated: UConn Student’s Suspension Permanently Vacated, Parameters of New Investigation and Hearing Envisioned, and Student Deemed to Have Prevailed.

John Doe v. University of Connecticut, et al., No. 3:20-cv-00092 (D. Conn.)


A student accused of conduct violations and the University of Connecticut and its officials have reached agreement to dissolve permanently the student’s suspension and to refashion rules and procedures for a new investigation and hearing on the allegations.  The new proceedings, to be completed not later than this month, are intended to provide some due process safeguards seen to have been lacking in initial proceedings. 

The U.S. District Court has entered judgment in accordance with the Consent Order submitted by the parties, with the court to retain jurisdiction to hear any matters relating to that order. 

The university defendants concede that John Doe is the prevailing party in the case and as such is permitted to recoup attorneys’ fees.  The process of determining the amount of the fee award is underway.  

Just Lawful Observation:  The case exemplifies the hazards of college and university administration of investigations and discipline having life long consequences yet operating without the constitutional guarantees promised in federal and state courts. 

The consequences to an accused student deprived of due process are life altering.  To this may be added the financial pressures on universities to be compliant with federal gender parity laws, violation of which will result in loss of funding.  Some believe this pressure has rendered schools incapable of operating without bias.  Moreover, social pressure to vindicate individuals who complain of sexual misconduct is everywhere felt, no less so in colleges and universities.

It occurs to Just Lawful that if ever there were cases that cry out for restorative or reparative justice, it is these cases in which students’ lives implode when activity viewed as consensual by one is viewed as assault by another.   Where remedies may be devised through mediation or learned interventions for both parties, this may be worthy of exploration.  

The costs of these proceedings to students, whether accused or accuser, are not academic in any sense:  at this time John Does’ attorneys’ fees request approaches one hundred thousand dollars.  Few students or their families could shoulder such costs without hardship.

2020 3 20-cv-00092 Consent Order

2020 3 20-cv-00092 Judgment

 

Suitable Accommodations Must Await Another Day: Supreme Court Declines Review of Walgreen Employee’s Religious Discrimination Claim

Patterson v. Walgreen, No. 18-349, 549 U.S. ____ (cert. denied February 24, 2020).


A decades-old Supreme Court case offhandedly announced that the “undue burden” that would relieve employers of any obligation to accommodate an employee’s religion need only be more than de minimus.  Joining in denial of certiorari of an employee’s case against Walgreen, Justices Alito and Thomas would like to revisit the standing precept, particularly where the old decision relied not on the civil rights statute but on federal agency guidance which predated statutory refinements of the definition of ‘religion’.

 

The Solicitor General suggested that other issues are of concern that need review, but the Court does not consider this case to be the proper vehicle.  The Solicitor General has asked whether an employer must offer a partial accommodation where a full accommodation would pose an undue hardship, or whether speculative harm can establish undue harm.  

 

Patterson alleged that Walgreen’s discriminated against him because his religion forbade working on his sabbath.  Walgreen’s routinely accommodated him in scheduling his work but declined to do so when an urgent need arose and it was thought that  accommodation would work an unairmness to another employee.

 

Patterson failed to appear for the requested Saturday work, which precipitated a delay in training Walgreen employees.  Discussion with Patterson was not fruitful. Patterson wanted a guarantee that he would never be asked to work on his sabbath.  He declined consideration of other positions where the issue would not arise. Walgreen’s suspended and later terminated Patterson.

 

The 11th Circuit observed that Patterson had established a prima facie case, leaving for decision on whether Walgreen failed to offer a reasonable accommodation or that Walgreen’s could not offer a reasonable accommodation which would not pose an undue hardship, which hardship can embrace both direct and indirect costs.  

 

An accommodation need not be the one requested by an employee, nor need the employer offer an array of accommodations from which to choose.  The duty to accommodate his match by a countervailing duty on the employee’s part to work with the employers as the employer suggests.

 

The 11th Circuit declined to address in depth the issue of undue hardwhip because Walgrehaten’s had offered Patterson the opportunity to change schedules when practicable or to obtain another position.  Even if undue hardship were considered, however, Patterson would not prevail because Walgreens would have incurred undue hardship had it been forced to rearrange its business schedule and that of other employees’ to accommodate Patterson.

 

The 11th Circuit also affirmed the trial court’s rejection of Patterson’s retaliation claim.  It cannot be said, the appellate court observed, that Patterson’s termination subsequent to his rejection of all reasonable accommodations was retaliatory.  An employee cannot both reject proffered reasonable accommodations and then claim retaliatory termination.  

 

Although the case will not be heard by the Supreme Court, the opinion accompanying denial of certiorari establishes that at least some of the associate justices are not at ease with the low standard that applies to employers concerning religious accommodations nor are they pleased with the continued existence of outdated definitions of religion.  The denial of certiorari means that the 11th Circuit’s view that an employee must cooperate with an employer concerning accommodations stands. As the 11th Circuit sees it, an employee seeking a religious accommodation cannot insist on the employee’s choice of accommodation, nor can the employee complain of retaliation where reasonable accommodations were offered and the employee rejected them.  

 

JustLawful prognostication:  This case was continued on conference lists for nearly a year, indicating its significance to the Court was not insubstantial but, as the concurring justices noted, the case did not present squarely the open issues that ought, in their views, to be addressed.   With the opinion below undisturbed, the balance of power in employer – employee relations in religious accommodations, at least in the 11th Circuit, rests with the employer. An employer may terminate an employee who refuses a reasonable accommodation, and may demonstrate that accommodation presents an ‘undue burden’ by offering only that the accommodation would cause more than slight harm.  

These issues will not diminish but only expand as the nation moves toward embracing a more expansive notion of religion and religious observances, and as the population of the United States grows ever more diverse in its demographics and in its religious practices.  The push and pull of employer and employee needs will likely not abate any time soon, making the hope for an apt case to serve as a vehicle to review will be presented sooner rather than later. Of course, there is nothing that stands in the way of legislative correction or executive and/or administrative refinement, perhaps obviating judicial intervention, should the coordinate branches’ respective spirits be so inclined.

 

Patterson v. Walgreen 18-349_7j70 February 24, 2020

Patterson v. Walgreen 11th Cir. March 9 2018

Appearances Do Not An Electronic Public Square Make: Ninth Circuit Rejects Assertion that First Amendment Applies to YouTube

Prager University v. Google LLC f/k/a Google Inc. and YouTube, LLC, No. 18-15712.  February 26, 2020.


Like the universe, the internet and its multiple platforms appear to be ever-expanding, even as the law of this new domain runs to catch up with novel features and equally novel claims.  The development of largely open online platforms upon which all and sundry may present their ideas, including their video recordings, gave rise to this suit. Prager University (“PragerU”), an informational resource which is not a true university, presents video discussions about politically conservative ideas.   

PragerU has objected to YouTube’s classification of its content as subject to YouTube’s “restricted” setting and to YouTube’s concomitant limitation on some of PragerU’s advertising.  The “restricted” setting is a user driven device which permits filtering content that some may see as objectionable. YouTube manages the classifications of content. Content providers who object to YouTube’s restricted classification may appeal, but the factors involved in classification and the reasons for decisions remain internal to YouTube.

PragerU has argued that YouTube is subject to the First Amendment because YouTube acts as an electronic public square.  Much as with traditional public squares, speech must be on a come one, come all basis, without hindrance by the platform provider. As such, PragerU has insisted, YouTube’s limitations on the visibility of PragerU’s content violate its First Amendment rights.

Not so, says a panel of Ninth Circuit justices, relying on an observation from the Supreme Court’s last term that the mere hosting of another’s speech will not make a private entity public.  Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).  

The First Amendment constrains only the government.  PragerU’s argument that YouTube has assumed a traditionally and exclusively governmental function falls far short of the mark. Inviting the public to avail itself of private property will not make a private property holder a state actor.  Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).  

Unlike the government, which is forbidden by the First Amendment from interfering in citizens’ speech, a private entity may do as it pleases, notwithstanding that its choices may at times displease.  

The panel also rejected PragerU’s assertion that YouTube’s terms of use constituted false advertising in violation of the Lanham Act.  If this were so, the court observed, any agreement could be transformed into marketing material.

Finally, the Ninth Circuit refused to recognize any binding effect to YouTube’s public pronouncement that it aspires to uphold First Amendment principles.  Notwithstanding its legal tone, this statement was mere opinion.  More importantly, there is no “opt-in” feature that would allow a private actor to become a state actor by force of its own will.

JustLawful prognostication:  This decision will not end this matter.  There is simply too much speech at stake and too few platforms of YouTube’s scope to think otherwise.  This is not to suggest that the Ninth Circuit is incorrect, but that further exploration of these issues is expected.  This is particularly so where, as the Ninth Circuit noted, both parties offered that were the court to rule against them, the sky would surely fall (Slip. Op., pp. 13-14).  

Prager University v. Google 9th Cir. February 26 2020

 

Some Kind of Hearing: Perceiving Procedural Deficiencies, Federal Court Orders University of Connecticut to Enroll Suspended Student

Doe v. University of Connecticut, No. 3:20-cv-092. Temporary restraining order granted January 23, 2020. Hearing on preliminary injunction continued to February 19th.


That procedural due process must be accorded when the state acts to limit constitutionally protected interests seems to be second nature in our conceptions of fundamental fairness, yet it was only a half century ago, a millisecond in the slow emergence and refinement of legal principles, that the centrality of such promises was articulated in Matthews v. Eldridge, 424 U.S. 319 (1975).   And since Matthews was decided, there has been ongoing development of principles that will breathe life into its meaning.  If it is not enough that due process requires notice and an opportunity to be heard, but to be heard in a meaningful time and in a meaningful manner, the contours of the process that must be provided continue to evolve.

Recently a federal district court in Connecticut ordered the state university to reinstate a student suspended based on allegations of sexual assault where the court observed that the university’s process failed to permit the student to present witness testimony tending to negate the accuser’s credibility and failed to permit the submission of questions to the accuser.   These deprivations in themselves so distorted the proceedings that relief from the university’s decision was in order.

Doe had been months from graduation when he was accused of sexual assault. Initially the university expelled him, then revised its determination to a two year suspension, subsequent to which the school agreed to consider, but not guarantee, an application for readmission without consideration of credit earned elsewhere.

The court did not decide whether students facing discipline have confrontational rights that include cross examination, an issue of controversy within the federal courts, but focused instead on the school’s failure to permit the submission of some questions to the accuser and the presentation of witness statements helpful to Doe.

The court observed that the potentially catastrophic losses which would follow delay or preclusion of Doe’s education, as well as losses of economic and reputational interests, outweighed the university’s interest in student discipline on these facts. In light of the irreparable nature of the potential losses to Doe, the extraordinary measure of temporary mandatory injunctive relief was substantiated.  

While the interests of Doe’s accuser were not insignificant, the court noted, they would not preclude ordering temporary relief, particularly where Doe and the accuser had encountered each other subsequent to the alleged assault without incident.

A full hearing on injunctive relief having been scheduled, the parties have represented to the court that settlement discussions have been undertaken in earnest. 

This case is one among several that have within recent months caused federal courts to question the sufficiency of educational institutions’ responses to allegations of sexual assault.  Financial pressure has been applied to compel schools’ compliance with federal laws demanding sexual parity.  While such measures require close institutional attention to allegations of sexual assault, lest federal financial support be lost, some courts appear to be unwilling to permit an accused’s constitutional interests to be sacrificed in service of financial concerns.  

2020 01 23 Doe v. University of Connecticut, No. 3:20-cv-92 (MPS)

“Leveling Down:” Dismantling Problematic Programs to Remediate Constitutional Conflict: Attractive to Some Supreme Court Justices, Insufficient to Others

Espinoza v. Montana, No. 18-1195.  Oral argument held January 22, 2020.


Oral argument for the Espinoza case shed little light on its outcome, although it did underscore that the Supreme Court justices hold divergent views on what is appropriate not only constitutionally, but with respect to addressing constitutional error.  

Justice Ginsburg intimated that the parents who brought suit have no taxpayer standing as they are not directly involved with the Montana tax credit in issue.  She further suggested that the state supreme court was not unreasonable in “leveling down,” or avoiding constitutional problems by dispensing with the scholarship program entirely.  

Justice Sotomayor signaled disdain for any state involvement in religion, pointing to history for support, much as others point to history for support for the opposite view, that the framers would abhor hostility toward religion but rather sought to guard against preferential government treatment for one faith over another.

Other justices asked how the circumstances of the Espinoza case would even conceivably be acceptable if the issue were race rather than religion. Justice Alito reminded counsel that it is not really possible to overlook the coincidence of the enactment of Blaine Amendments with the wave of immigration that accompanied the Irish potato famine. 

Justice Breyer noted that there is no Establishment Clause respecting race, demolishing the “no distinction” point of view respecting race and religion.  The justice likewise worried about how a determination that the state might permissibly be involved in religion by means of the tax credit would impact subsequent funding decisions.  His principal worry seemed to be that a determination that religion could not be excluded would compel inclusion of religion in all state funding.  

Justice Kagan, noting her joinder in the Trinity Lutheran decision, asked whether the Espinoza case was not distinguishable from Trinity LutheranTrinity Lutheran concluded that it is unconstitutional to preclude participation in neutral and generally available government programs because of religion.  In this case, she stated, religion is directly involved: the issue is payment of money to religious institutions.

Justice Gorsuch interjected for clarity the question whether a federal court may aptly intervene where a state court has made an error under federal law, intimating that the question whether the state court error was active or passive is a red herring.

The Chief Justice questioned the role of intent in discrimination cases, suggesting, without more, that there may be some relevance for Espinoza. Thee Chief Justice cited a 1977 case holding that an ordinance with discriminatory impact was nonetheless constitutional because its enactment was without discriminatory intent.  

There are no certainties in the law, but it is not irrational to speculate that there will be no unanimity in any determination the court makes. The divergence in thought will not unlikely be reflected in a multiplicity of opinions.

Among Friends: Strict Separation Advocates Square Off Against School Choice Proponents in Challenge to Montana Determination to Dismantle School Choice Tax Credit

Espinoza v. Montana, No. 18-1195 (U.S. Sup. Ct.) Oral argument January 22, 2020.


Dozens of amicus briefs have been submitted to the Supreme Court concerning the Court’s consideration of the constitutionality — or not — of a Montana tax-advantaged school choice program.  A thumbnail of their arguments is presented here.

 

 

Entities Submitting Amicus Briefs for Respondents Arguments
Baptist Joint Committee for Religious Liberty; The Evangelical Lutheran Church In America; General Synod of The United Church of Christ; Reverend Dr. J. Herbert Nelson, Ii, As Stated Clerk of The General Assembly of The Presbyterian Church (U.S.A.) “No funding” provisions in state constitutions promote religious liberty. Nothing in the 1972 re-enactment of the Montana Constitution suggests that its ‘no religious funding’ provisions were grounded in religious animosity. Principles of federalism compel the federal government to refrain from interference in state determinations concerning state constitutional matters: states must remain free to provide greater separation of church and state than the federal constitution requires.
Tennessee Education Association The Court is urged to bear in mind that public education serves society, where funding for private or church affiliated education is focused on individuals. In the absence of evidence that the Montana constitution’s ‘no aid’ provision is grounded in religious bigotry, the provision should not be struck down.
Colorado, California, Hawaii, Massachusetts, Michigan, Minnesota, New York, Oregon, And Washington The state amici are among the 38 states having state constitutional ‘no aid’ provisions. Amici submit that states have a profound interest in managing public education, that considerations of school funding issues are not “one size fits all” matters and are well within the ‘play in the joints’ of the competing religion clauses, and that such matters should be and remain within the powers of the states to consider.
Montana Association of Rabbis The Montana tax credit, if upheld, inures overwhelmingly to the benefit of Christian schools, and as such produces discrimination against Jews, who are a religious minority within the state. The discrimination which would ensue from upholding the tax credit is insupportable.
Religion Law Scholars Traditional considerations of the proscriptions of the Establishment Clause permits a benevolent neutrality regarding religion. The state’s activity with respect to religion need not be rigid, yet care must be taken to preclude religious accommodation from becoming state sponsorship of religion. In order to avoid state sponsorship of religious institutions, a state may determine, as Montana has, not to fund programs such as the scholarship tax credit in issue here.
National Disability Rights Network, The Arc of The United States, Council of Parent Attorneys And Advocates Twenty one disability rights advocacy groups join to oppose preferential tax treatment for private educational institutions. The groups fear that because the private schools are not bound by the federal laws governing public education of children with disabilities, such as the Individuals with Disabilities in Education Act (“IDEA”), the gains won by such legislation will be lost, and private schools will bear no accountability for their treatment of students with disabilities.
National School Boards Association et al.  More than a dozen school board associations, school systems associations, school administrators’ associations, and other public education associations and advocates submit that the Montana Supreme Court’s determined neutrality with respect to state involvement in religion is lawful and that expansion of Trinity Lutheran to public education would undermine long standing principles governing state involvement in religion.
American Federation of Teachers, National Education Association, Montana Federation of Public Employees, And Montana Quality Education Coalition Teachers’ unions urge dismissal of the case because petitioners’ interests in the relatively small tax credits being challenged are too extenuated to confer Article III standing. Precedent requires dismissal of third party challenges to others’ tax interests: to hold otherwise would flood the courts with third party actions.
Public Funds Public Schools Amicus submits that Montana Constitution Article X, Section 6 reflects the state’s commitment to the expenditure of public funds for public schools. Diversion of public funds to private schools is insupportable, particularly where doing so undermines student achievement.
Religious And Civil Rights Organizations The “play in the joints” of the federal religion clauses leaves room for states to offer more robust religious freedom protections than those accorded by the federal constitution. Montana need not require that every program that benefits public institutions benefit religious institutions: declining to permit public funding of private entities at all in order to maintain neutrality is well within the state’s rights. Upholding the Montana Supreme Court decision would not disturb decisions about property taxes, but failing to uphold the state’s decision would upend decades of precedent that precludes state involvement in funding religion. The state’s determination not to fund religious activity does not infringe upon its exercise.
State of Maine School districts lacking resources with which to operate public schools may arrange for private schools to operate in their stead, or may pay tuition for students to attend a non-sectarian school, but funding to religious schools is not permitted. Notwithstanding that Maine’s is not a voucher program, Maine questions the direct diversion of public funds to religious entities and urges the Court to affirm the Montana determination as so doing will aid Maine in resisting challenges to its approach. Maine argues that precedent recognizes that refusal to fund religious entities does not violate the Free Exercise Clause, and Trinity Lutheran does not disturb that result.
Montana Constitutional Convention Delegates Participants in the 1972 Montana Constitutional Convention assure the Court that Article X, Section 6 was vigorously debated. The convention repudiated the religious animosity of its 19th century counterpart, but chose to enact the ‘no aid’ provision in furtherance of a fundamental state commitment to public education. Not hostility toward religion but a commitment to government restraint with respect to involvement in religious matters guided the enactment of the ‘no aid’ provision.
Montana and Northern Wyoming Conference, United Church of Christ The Montana-Northern Wyoming Conference of the United Church of Christ are social justice advocates who perceive that advocacy for public education falls within those social justice goals. The UCC Conference points out that questioning the underlying legislative motivation that led to the enactment of Montana Constitution Article X, Section 6 is not proper in an “as applied” challenge such as the one in issue in this case. Even if it were proper, the motivation in 1972 was to further public aid to public education without animosity toward any faith or faiths, and that re-enactment purged the provision of any of its tainted history
Freedom From Religion Foundation, Center for Inquiry, American Atheists, And American Humanist Association Advocates urge the Court to frame the case not as one of discrimination against religion, but of impermissible state-compelled aid to religion. No such aid was within the framers’ contemplation, such aid has been historically precluded, and to hold otherwise would contravene both history and tradition. Indirect aid through tax credits is no less odious than direct aid. In the larger sense state abstinence from engagement in funding religious activities fosters religious liberty. Amici note that non-involvement in religious activities precludes preferencing one faith over another or compelling any citizen to fund a faith anathema to his or her own. Moreover, state funding of religious schools invites state regulation of those same schools, inviting entanglement that may prove undesirable by both state and church.
Entities Submitting Amicus Briefs for Petitioners
Arguments
Forge Youth Mentoring Forge Youth Mentoring, which provides Christian assistance to at-risk youth, urges the Court to recognize that Trinity Lutheran teaces that the state may not preclude religions from participation in generally available public benefits applies to education. An overly broad reading of Locke, involving direct aid to religious formation, is not apt here and particularly not so following Trinity Lutheran.
Billy Graham Evangelistic Association, Samaritan’s Purse, National Legal Foundation, Pacific Justice Institute, And International Conference of Evangelical Chaplain Endorsers Amici argue that Montana erred in its fundamental perception of the monies in issue as being owned by the state. The state does not own all because it can tax all, nor does it own the taxpayers’ contributions to private educational institutions in this case by virtue of provision of a credit against tax for such donations. Precedent supports the conclusion that the donation of private money to a private entity does not become state money by virtue of offering the credit. Zelman holds that a neutral program which permits choice concerning the direction of funds need not offend the Establishment Clause.
131 Current And former State Legislators State legislators unequivocally contend that Blaine Amendments reflect not only a shameful history but also present a contemporary impediment to state efforts to advance educational benefits for its citizens.
Justice And Freedom Fund, Institute for Faith And Family, And North Carolina School Choice Attendance at private school is an acceptable means of compliance with Montana’s compulsory education requirement. Where parents must choose private education because public education conflicts with their values, the provision of tax advantages for private education is a counterbalance to the parents’ underwriting of objectionable public schools through taxation. Where private choice directs the flow of private funds for educational and not religious ends the Establishment Clause is not implicated. The Court should continue on its course of applying flexible non-discrimination principles rather than to uphold inflexible ‘no aid’ laws.
Arizona Christian School Tuition Organization And Immaculate Heart of Mary Catholic School The application of the Montana constitution’s ‘no aid’ provisions directly discriminates against religious organizations and because it does so in connection with a generally available program or benefit — education — it cannot survive analysis under Trinity Lutheran. Amici argue that the Blaine Amendment, readopted in 1972 with knowledge of its history, bears a shameful history and is facially unconstitutional.
Montana Family Foundation The Montana Family Foundation asserts that the Religion Clauses reflect and require a ‘wholesome neutrality’ concerning government involvement in religion, a view upheld in Trinity Lutheran which is not present in Blaine Amendments or in Montana’s no-aid amendment.
Center for Education Reform, et al., Amici support the attainment of educational excellence and are of the view that a primary factor in successful school outcome’s is a family’s ability to direct the choice of school their children attend. Montana’s prohibition of access to a generally available benefit — education — runs afoul of Trinity Lutheran.Families have a recognized and constitutionally protected liberty interest in where their children attend school. Denying school choice because of religion violates bedrock constitutional principles. By comparison, the state interest in any indirect aid to religious that may flow from permitting a tax credit for private donations is miniscule. The antipathy to Catholicism undergirding the Blaine amendments would not be recognized by the Framers, but the interests of parents in their children and in freedom from religious discrimination would have been applauded, and should be today.
Rusty Bowers, Speaker of The Arizona House of Representatives, And Other State Legislative Leaders Legislative leaders of three states worry that the consideration of Blaine amendments in general and in this case in particular is ill-founded. As it is grounded in individual choice, the Montana program does not raise Establishment Clause concerns, but the denial of equality within a generally available benefit raises Free Exercise concerns that compel reversal of the Montana decision.
Jerry And Kathy Armstrong, Lashawn Robinson, Gwendolyn Samuel, Yi Fang Chen, And Pacific Legal Foundation In Support Parents of students and the foundation assert that school choice is a primary component of a parent’s “right, responsibility and privilege” to raise his or her child. School choice programs are critically important in providing an educational setting which will permit a child to thrive, and such programs are particularly critical where parents would not otherwise have the means to access such a setting.
Jewish Coalition for Religious Liberty Amicus observes that Montana’s Blaine Amendment is an impediment to students who would benefit from scholarships to Jewish Day School., which would educate them, ground them in their faith, and prepare them for leadership roles. The costs of such schools has been termed a “community crisis,” which would be alleviated by a determination that the Blaine Amendment, grounded in a history of religious antipathy, can no longer stand as an barrier to educational opportunities.
Christian Legal Society, United States Conference of Catholic Bishops, The Union of Orthodox Jewish Congregations of America, American Association of Christian Schools, The Anglican Church In North America, Association of Christian Schools International, The Church of Jesus Christ of Latter-day Saints, Council for American Private Education, Council for Christian Colleges & Universities, Ethics & Religious Liberty Commission, Evangelical Council for Financial Accountability, The General Conference of Seventh-day Adventists, Institutional Religious Freedom Alliance, The Lutheran Church – Missouri Synod, National Association of Evangelicals, Queens Federation of Churches, And World Vision, Inc. (U.S.) Amici urge the Court to continue to recognize that the First Amendment protects religious liberty through government neutrality respecting religion. Trinity Lutheran supports these principles by holding that the government may not preclude participation in a generally available benefit because of religion. That preclusion is clear here where no parent may avail himself or herself of a tax credit available to all because it concerns donation to a sectarian entity. Government neutrality is not manifested by discrimination against religion but by permitting the participation of all without concern for religion. The core constitutional concern of protection of voluntary and private choice in belief is best served by equality in governmental aid to religious and non-religious schools, a position which is “both formally and substantively neutral.”
Independence Institute Amicus presents a detailed history of the 19th century Blaine Amendments, illustrating the antipathies toward disfavored religions that these laws supported and promoted, underscoring that in that day “sectarian” applied only to those disfavored groups, and arguing that the application of the Montana Constitution’s “no aid” provision violates both the First and Fourteenth Amendments of the U.S. Constitution.
Alliance for Choice In Education Amicus submits that precluding faith-based schools from participation in scholarship benefits sharply reduces their likelihood of obtaining favorable educational outcomes for students. The exclusion ignores history and likewise ignores the importance of parental capacity to seek educational opportunities consistent with their values. Research supports a correlation between choice and good outcomes. The Locke decision’s “play in the joints” between the religion clauses does not endorse discrimination against religion. Where the purpose of the tax credit was to benefit family choice generally and no one religion particularly, the guidance of Trinity Lutheran would favor inclusion of both non-sectarian and sectarian schools.
The Liberty Justice Center And American Federation for Children Amicii submit that the application of Blaine Amendments to school choice programs keeps children from low income families captive, that the amendments turn the Establishment Clause on its head by punishing rather than protecting minority religions, and that Blaine Amendments, which are grounded in religious animus, violate the Equal Protection clause.
Georgia Goal Scholarship Program, Inc. Georgia’s corollary to the Montana tax credit program is critically important to students. Grounded in religious animus and racial bigotry, Blaine Amendments cannot be permitted to stand in the way of minority children’s education. The application of these amendments to minority students in the ante-bellum and post-civil war south forced African American students into industrial education and denied them the classical liberal education available to others.
The Rutherford Institute A relic of 19th century anti-Catholicism, Montana’s Blaine Amendment, like those of the thirty seven states that retain such provisions, discriminates among religions in violation of the principles of neutrality toward religion required by the federal Establishment Clause.
Americans for Prosperity And Yes. Every Kid. The Montana constitution does not reach tax credits, yet the state Supreme Court applied the constitution in violation of the rights of those who could not be verified as non-religious. Tax credits are not appropriations of public funds. The Montana Supreme Court erred in establishing a religion of secularism. Although not raised in prior proceedings, amici submit that Montana has engaged in unconstitutional viewpoint discrimination by denying equal third party funding to all students.
The Becket Fund for Religious Liberty Because they are grounded in religious bigotry, Blaine Amendments are presumptively unconstitutional. Reenactment of Montana’s Blaine Amendment in 1972 did not cure its racial animus. Application of the Montana no-aid provision violates the principles articulated in Trinity Lutheran.
Senators Steve Daines, Tim Scott, John Kennedy, And Marsha Blackburn And Representative Greg Gianforte Montana’s no-aid provisions remain exactly as they were in 1889. The application of the Blaine Amendment discriminates among religions and cannot survive analysis under Trinity Lutheran. Locke concerns direct funding of clergy education and does not embrace the kind of global exclusion of religious entities from available benefits that Montana has upheld here.
Montana Catholic School Parents, The Catholic Association Foundation, And The Invest In Education Foundation Amici parents provide anecdotal evidence of the benefits of children’s placement in religiously affiliated schools. The anti-Catholic history of the Blaine Amendments precludes their present application. The application of Montana’s ‘no-aid’ provision interferes with parents’ fundamental interests in governing their children and their children’s educations.
Oklahoma, Georgia, Arizona, Alabama, Alaska, Arkansas, Kansas, The Commonwealth of Kentucky By And Through Governor Matt Bevin, Louisiana, Governor Phil Bryant of The State of Mississippi, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, And West Virginia Montana could not and did not cure the constitutional deficiencies in the application of the no-aid provision by dismantling the program in its entirety. Federal intervention is warranted under the Supremacy Clause, which requires that the federal courts deny the effect of unconstitutional state laws. Even were state Blaine Amendments considered to be constitutionally acceptable, they do not reach tax credits which continue to permit private control of educational funding, particularly where it is individual students and not religious institutions who benefit from the scholarships. Upholding the Montana decision will jeopardize the programs of other states, some of which have concluded that their tax credit programs do not violate the First Amendment. The harm from upholding Montana’s decision would flow to other benefits and would fall particularly on low income families.
The Honorable Scott Walker Wisconsin’s former governor and school choice proponent argues that the direct funding of religious education that was present in Locke is not present in this case and that in any event Locke should be overruled, as any status-use distinction to be drawn with respect to funding cannot survive constitutional scrutiny. The attempt to distinguish Locke away in Trinity Lutheran is not sufficient: Locke must be overruled in its entirety.
The Cato Institute Montana’s Article X, Section 6 violates the Free Exercise Clause as applied to Montana’s tax credit program, for exclusion from public programs because of religion evinces hostility toward religion and lacks the neutrality that the constitution prescribes. While the Establishment Clause forbids government entanglement with religion, it likewise prohibits the government from handicapping religion. In avoiding entanglement with religion, the state must guard against discriminating against religions. Application of the Montana Blaine Amendment creates obstacles solely on the basis of religion and as such violates the First Amendment. It is error to consider a tax credit to be an expenditure of public funds. And exclusion of schools because of religion creates rather than diminishes conflict within communities, for those who are forced to forego choice will be at odds with those who would impose their choice upon them.
Edchoice, Reason Foundation, And The Individual Rights Foundation Proponents of educational and individual choice join with free market libertarians to offer the observation that states legislate in favor of school choice year after year with full awareness that litigation will ensue and with bring with it families’ fears that their children’s schooling will be disrupted by the litigation. Social science documents improved educational outcomes for students. The constitution does not support exclusion of religion from public benefits. Public school students do not suffer because of school choice programs but become attuned to the existence of many views within society. Finally, the provision of school choice programs may diminish the amount a state needs to expend on education, creating a savings benefit.
The Opportunity Scholarship Fund This Oklahoma Scholarship Granting Organization notes that Oklahoma’s laws are substantially similar to Montana’s, but Oklahoma’s programs have been upheld as constitutional under Zelman. The organization is concerned, however, that any acceptance of a scholarship by a family with a child with a disability will be seen as accepting a benefit which would preclude receipt of federal disability support. Oklahoma argues that this concern would be alleviated by the Court’s ruling that exclusion of religious schools from the scholarship program is unconstitutional.
Pioneer Institute This institute, describes itself as one that fosters civic discourse, submits that application of Blaine Amendments, grounded in anti-Catholic bigotry, offends the First Amendment. The institute provides a detailed history of state and federal Blaine amendments.
The Center for Constitutional Jurisprudence This litigating branch of the Claremont Institute, which focuses on the law as conceptualized by the Framers, observes that religious establishment flourished in the colonies but concern about religious compulsions followed the revolution, leading to the promulgation of the protections of individual liberty from state intrusion that the First Amendment guarantees. The First Amendment operates to constrain the federal government in order to protect religious liberties, not to deny them or to codify hostility toward religion. Montana’s laws and interpretations of those laws evidence that hostility and, as such, cannot survive constitutional analysis, as they violate the Free Exercise Clause.
The American Center for Law And Justice The ACLJ argues that it is not constitutionally permissible to deny generally available benefits on the basis of religion. The Locke decision, questionable in its own right, is not controlling in this case, as it involved direct aid in training for professional ministry. The ACLJ questions the extreme and disruptive logical outcomes of the exclusion of benefits on the basis of religion. Such exclusion would permit charitable deductions to nonprofits seeking to reduce famine but not to support Jewish community life, or permitting contributions to Ivy League schools but not Jesuit universities.
Mackinac Center for Public Policy This center for free market public policies asserts that school choice programs in Michigan have significantly enhanced student educational attainments. A determination upholding the Montana decision could impact Michigan’s programs, relegating students who have benefitted from choice to poorly performing public schools.
The Foundation for Moral Law This foundation supports strict construction of the constitution. Montana’s laws and actions violate the federal constitution, as they make hostility toward religion a state policy, which the First Amendment forbids. The Framers feared that the government would penalize citizens for not believing as the state thought that they should, which is precisely the result of the Montana decision. The First Amendment constrains the government from inhibiting religion and as such, it precludes policies which exclude religion entirely from general benefits. The state may not unduly burden religion nor may it exclude religion. The Trinity Lutheran decision should direct the outcome in this case.
The Solicitor General of The United States Montana’s exclusion of sectarian schools because they are sectarian schools violates the Free Exercise Clause because so doing imposes special disabilities upon religion. The state cannot avoid the impact of the no-aid provision, grounded in religious antipathy, by attempting to fashion a remedy that would end the program entirely. As the Montana law was unconstitutional from the beginning, the Montana Supreme Court could not by any measure remedy the statute but had only the power to acknowledge the statute’s constitutional deficiency.

 

Massachusetts Trial Court Considers the Constitutional Contours of End of Life Care

Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

Communications Breakdown: Political Consultants and the United States Both Sought — and Obtained — Certiorari Review of the Constitutionality of Exceptions to the Federal Ban on Automated Cell Phone Calling

William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631.  Petition for Certiorari granted January 8, 2020.


The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages.  Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.  

The TCPA prohibits calling cell phones without consent absent an emergency.  This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.   

The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.

The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact.  Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.

The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.  

The American Association of Political Consultants’ views are diametrically opposed on both grounds.  The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt.  Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.  

It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit.  Severing an exception to an unconstitutional statute works no remedy, they argue.

A scheduling order has not yet been published.  There are two other petitions for certiorari pending in on related issues for which no action has been taken.

Petition for Certiorari: Barr, Attorney General, et al. v. Am. Assoc. of Political Consultants

Respondents Brief in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

Petitioners’ Reply in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

 

Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)


Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

When Constitutional Clauses Collide:  Citizens’ Challenge to Montana’s Tax Advantaged School Choice Plan Seeks First Amendment and Equal Protection Review.

Espinoza, et al. v. Montana Department of Revenue, et al. No. 18-1195.  Oral argument set for January 22, 2020.


Many families hope that education will pave the way to successful adulthood.  Frequently private schooling is sought to serve that end, but many families find that no matter how arduously they work, the funds necessary to obtain that private schooling remain elusive:  scholarship help is a necessity for many who want to send their children to private school.   

In 2015, Montana enacted legislation providing a dollar-for-dollar tax credit, up to $150.00 annually, for donations to scholarship providing non-profit entities.  The non-profit entities would in turn use the donations to award scholarships, paid directly to the schools.  

Some 28 states have enacted at least 57 programs similar to Montana’s, called “school choice” programs.   Almost all private schools in Montana were qualified recipients of these tax advantaged scholarships. Yet very many of these schools were directly or indirectly affiliated with religious institutions.

Montana’s Constitution, Article X, Section 6, Part 1 prohibits the payment of state money, directly or indirectly, to fund religious activity.  This limitation was incorporated in the tax credit statute. Following enactment of the tax credit, state tax authorities promulgated a regulation echoing the preclusion of the use of tax money for religious entities.

Fearing that scholarships were in jeopardy, parents sued the state to enjoin it from precluding awards of scholarships to religious educational institutions, asserting that precluding aid would violate their First Amendment and Equal Protection rights.  The state countered that permitting the scholarships would run afoul of the state’s First Amendment and state constitutional obligations. 

The parents prevailed in the trial court but on appeal the Supreme Court of Montana, unable to split the constitutional baby between sectarian and nonsectarian beneficiaries of the tax credit program, declared the entire statute unconstitutional.  

The matter is now before the Supreme Court. 

Petitioners’ Challenges.  Petitioners urge the United States Supreme Court to reject the Montana Supreme Court’s wholesale invalidation of the entire tax credit statute as in violation of the federal religion clauses.  The parents ask the Court to determine the Montana state constitutional amendment forbidding aid to religion to be unconstitutional as applied to them, and to find Montana’s actions to be discrimination against religion in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Petitioners point out that Montana’s prohibition on state funding of any religious activity had its origins in the anti-Catholic Blaine Amendments of the 19th Century.  As religion is an inherently suspect clause, the state constitution as applied offends the 14th Amendment Equal Protection clause, petitioners argue.  

The wholesale ban on any and all state aid to religion does not support government neutrality but rather evinces hostility toward religion and, as such, cannot survive constitutional review, petitioners argue.  This is true, petitioners assert, whether any of the tests of Zelman v. Simmons-Harris, 536 U.S. 639 (2002) or Lemon v. Kurtzman,   403 U.S. 602 (1971) or the teachings of the recent Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012  (2017) are applied.

Zelman requires only a religiously neutral program with choice centered in the individual, not the state, which petitioners assert is true of the 2015 Montana legislation.  In contrast, the state’s ban of all aid is hostile, not neutral, and works to deprive individual families of choice. Petitioners submit that however awkward it may be in application, Lemon in no sense endorses the antipathy to religion that Montana’s actions evince.

Montana’s dismantling of the tax credit program, which was available to all without respect to religion, advances no secular purpose where, petitioners argue, its only effect is to trample the rights of the religious with no concern for students.  Petitioners urge that the preclusion of state funding of religious professionals’ training, found to be unconstitutional in Locke v. Davey, 540 U.S. 712 (2004), is inapposite, for that case concerned direct aid to churches in developing their clergy, which is not true of the Montana case.   

Montana’s Response.  Montana does not argue mootness, but does argue that the Montana Supreme Court’s invalidation of the tax advantaged school choice plan does away with constitutional concerns.  All aid has been precluded: no hostility, disparity or discrimination can be found where the statute no longer exists.  

Montana perceives that Espinoza spotlights the intersection of church/state traditions:  non-discrimination is crucial to religious freedom. The Establishment Clause permits but does not compel aid to religion. If the state is opposed to aiding religious schools the state can, as it has done here, decline to offer any aid at all.  Because petitioners concede that this is true, Montana argues, no constitutional claim remains.  

There can be no intrusion on the Free Exercise of religion where no program exists at all, the state submits.  Invalidation of the entire program works no coercion, as  the invalidation restrains the government, not the individual.

Montana denies that the 1972 re-enactment of the state constitutional no-aid clause ratified or endorsed the religious antipathy that gave rise to the 19th century Blaine Amendments.  Montana offers that the new constitution, enacted in 1972, sought to protect religious liberty by means of strict state separation from religion.  

In this case the state supreme court has protected religious freedom by enforcing the structural barrier between religious schools and the government that the no-aid clause contemplates.  Striking down the tax credit in its entirety ensures that no one is preferred and that no one is penalized for exercising their faith. 

Historic opposition to state funding of religious entities demonstrates the constitutionality of such prohibitions, the state contends.  Trinity Lutheran is not on point, for the tax credit plan does not involve a generally available benefit.

The state has not banned aid to education.  Moreover, where thirty eight states fall in line with Montana’s position, this is history to which the U.S. Supreme Court ought to defer.

The U.S. Supreme Court should not interfere with the constitutional and judicial authority of the state by enforcing a statute that the state Supreme Court has held to be unconstitutional, the state submits.   If it is conceded — and it is — that the state could decline to provide a school choice program, then it cannot be correct that if a school choice program is forbidden by the state constitution, then the application of the state constitution must be in violation of the federal constitution, and, therefore, a void statute must be enforced.

As there is no longer a school choice tax credit program, there is no unequal treatment, and therefore no Equal Protection clause violation.  Nor is there any Establishment Clause issue whether the state chooses to offer greater separation than the federal religion clause requires.

The state offers that the Supreme Court cannot recognize an amorphous “free exercise” violation where petitioners have not identified any violation. The Free Exercise clause inhibits the government: that some difficulty in exercising religion might beforeall individuals does not rise to the level of unconstitutional government prohibition on the free exercise of religious rights.

The operation, or not, of a tax advantage works no prohibition on free exercise.  Anyone can give to scholarships as they see fit: they just will not receive a tax credit.

There is no generally available benefit from which petitioners have been excluded because the tax credit program has been declared void ab initio

Without more, the state constitution’s no-aid close does not violate the Free Exercise Clause. In all, the fact that the Establishment Clause may allow a measure does not mean that the Free Exercise Clause compels it.  The state notes that where school choice is concerned, Justice Beyer has inquired of the fate of the interests of the families who would not wish to fund religious education at all.

Montana cautions that if the Supreme Court were to invalidate Montana’s no aid clause, grave constitutional concerns would arise.  Zelman does not require a single answer to whether  a “no aid” provision helps or hinders religion  Petitioners’ position lacks good sense: it is unimaginable that a statute declared unconstitutional under state law can spring back to life following federal constitutional review.

Zelman observed that choice that includes religion need not violate the Establishment Clause but declining funding is not the establishment of religion.  Lemon poses no problem because there are no unconstitutional effects created by the Montana Supreme Court’s invalidation of the school choice program.  Entitlement to a tax preference is not an establishment clause issue. Similarly, across the board disentitlement works no entitlement. 

Petitioners’ Reply.  Petitioners liken the state’s position to that of the authorities who shuttered schools rather than conform to the constitutional command to desegregate. 

Where the state emphasizes that petitioners concede that the state need not offer an aid program, the petitioners point to a comparable concession by the state:  the state cannot avoid the reality that the provision of a program that excluded religious schools would violate the federal constitution. Where protected classes are concerned, the Supreme Court has recognized that invalidating a program to prevent inclusion is just as discriminatory as exclusion from the start.  

It is not true that the Montana Supreme Court ‘harmonized’ federal and state constitutional interests.  Rather, the state understood that severability — permitting secular while forbidding sectarian aid — was a constitutional impossibility.  Eliminating a program to avoid unconstitutional results does not avoid constitutional concerns but confirms them.

Trinity Lutheran cautions that the Court ought not engage in a wooden application of Free Exercise principles:  indirect coercion or indirect penalties are within the ambit of the Free Exercise clause.  

The only reason the school choice tax credit was eliminated was concern over aid to religious schools.  The result in this case is worse than that in Trinity Lutheran, for the Espinoza petitioners have already relied on the availability of aid.  The additional financial burden and potential educational exclusion imposed on the petitioning parents falls within the concerns the Free Exercise Clause contemplates.

Locke concerned direct funding of professional clergy education, a circumstance not present here.  Further, petitioners argue that there is no “use” limitation on Trinity Lutheran’s holding.  Such an argument is irrelevant, nonetheless, where status discrimination exists: aid will be denied based only on religious status.  If religion and religious education cannot be disentangled, the state disproves its own argument: status v. use is a distinction without a difference.

Contrary to the state’s assertions, the weight of history is not on the state’s side, petitioners counter.  Most early considerations of government involvement in religion concerned direct aid to churches. This is not the case here, and there is no overwhelming reason to believe that aid that could benefit religious and secular schools would be objectionable to the founders. 

The proffered reasons for the wholesale reenactment of the Blaine Amendment in 1972 are of no moment, petitioners insist, where the significance of the measure is that of singling out religion for different treatment, which strikes at the core of Equal Protection clause concerns.  Even if it were accepted that a law’s constitutionality, or not,  cannot be determined by the motives of its enactors, the effects of a statute are reasonably evaluated in addressing constitutional concerns.  

As Montana has entirely banned aid to students seeking religiously affiliated private education, Zelman’s principles of neutrality and individual choice are decimated.

The question is not of “resurrection” of a defunct statute:  the issue is that Montana’s Supreme court determination forever precludes aid.  Similarly, the state’s resuscitation rhetoric must fail, as statutes are routinely revived following judicial review: so doing works no “inverse federalism.”

Petitioners submit that the federalism fears described by the state are phantasms.  There exists ample room for Montana to work within the “play in the joints” of the religion causes.  Montana may enact a school choice program without violating the Establishment Clause but it need not, and this would not violate the Free Exercise Clause. In contrast, adopting a wholesale ban on aid to religion would violate both religion clauses.  

Principal Briefs

Brief for Petitioners

Brief for Respondents

Reply Merits Brief

Joint Appendix

Amicus Submissions:  Note that the United States, as Amicus for Petitioners, Will Participate in Oral Argument 

The United States

Petitioners’ Amici

131 Current and Former State Legislators

Agudath Israel of America

Alliance for Choice in Education

American Center for Law & Justice

Americans for Prosperity and Yes Every Kid

Arizona Christian School Tuition Organization and Immaculate Heart of Mary Catholic School

Billy Graham Evangelistic Association et al.

Center for Constitutional Jurisprudence

Center for Education Reform et al

Christian Legal Society et al

EdChoice, Reason Foundation, and The Individual Rights Foundation

Forge Youth Mentoring

Foundation for Moral Law

Georgia Goal Scholarship Program Inc

Honorable Scott Walker

Independence-Institute

Jerry and Kathy Armstrong et al

Jewish Coalition for Religious Liberty

Justice and Freedom Fund et al

Liberty Justice Center and American Federation for Children

Mackinac Center for Public Policy

Montana Catholic School Parents, Catholic Association Foundation, and Invest in Education Foundation

Montana Family Foundation

Oklahoma et al

Opportunity Scholarship Fund

Pioneer Institute

Rusty Bowers Speaker of the Arizona House of Representatives et al

Senator Daines et al

The Becket Fund For Religious Liberty

The Rutherford Institute

Respondents’ Amici

American Federation of Teachers et al

Baptist Joint Committee for Religious Liberty

Colorado et al

Freedom from Religion Foundation et al

Montana Association of Rabbis

Montana Constitutional Convention Delegates

Montana Northern Wyoming Conference United Church of Christ

National Disability Rights Network et al

National School Boards Association et al.

Public Funds Public Schools

Religion Law Scholars

Religious and Civil Rights Organizations

State of Maine

Tennessee Education Association

 

 

 

Fact v. Fiction Friction: Native American Tribe and Leader Sue “Billions” Showrunners in Defamation

Cayuga Nation and Clint Halftown v. Showtime Networks, et al., No. 157902/2019 (N.Y. Sup. Ct.).  Oral argument on motion to dismiss scheduled for December 23, 2019.


“Billions” is a CBS/Showtime drama series that explores the manners and mores of titans of the New York financial and legal realm.  A fatherless self-made billionaire hedge fund owner squares off against a politically powerful adult child of privilege who cannot escape the influence of his ruthless father.

The Cayuga Nation and its leader object to Billions’ portrayal of them, asserting that the show has intimated the nation and its leader engaged in improper business conduct.  Showtime and its creators demur, asserting that this fictional account bears only a nominal similarity to the plaintiffs, that no viewer would mistake the drama for fact, that the nation as sovereign cannot maintain an action in defamation, and that any claim of misappropriation of Halftown’s likeness must fail, as no likeness has been appropriated and no image has been used in trade or advertising.

Defendants argue that fiction must be accorded strong First Amendment protection, and that the high standard applicable to defamation in fiction cases requires that any representation be unmistakable, indistinguishable from a real person, and involve defamatory statements concerning the target of the defamation. 

None of these standards can be met, defendants submit, where the female tribal leader acting in the show could not be mistaken for the real leader.  Moreover, the portrayal of the tribe and its leaders was not defamatory but rather portrayed the nation and its leader as politically astute.  There was no depiction or suggestion that either the nation or the its leader engaged in any criminal activity, precluding success in claiming defamation per se.

Plaintiffs insist that conclusory arguments without factual support do not support dismissal.  The nation is not without capacity to defend its good name and the idea that oblique representations cannot be actionable distorts the law.

Case Documents:

Summons and Complaint


Memorandum of Law in Support of Dismissal

Case Law in Support of Dismissal

Brafman v. Houghton Mifflin

Milo v. CBS

Summerlin v. Washington Star

Air Zimbabwe v. Tribune


Memorandum of Law in Opposition to Dismissal

 

Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.

Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  


A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio

 

 

 

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95

 

 

The Right to Tell the State It Is Wrong: Ninth Circuit Recognizes Parent May Have a Claim Against Social Workers for Retaliation for Exercising First Amendment Rights in Connection with Child Protection Laws

Capp, et al. v. County of San Diego, et al., No. 18-55119 (9th Cir.) October 4,2019.


Jonathan Capp, going it alone in the judicial labyrinth, twice failed to persuade a trial court that he had been drawn into parental rights proceedings because he railed against the allegations made against him. The trial court twice dismissed his claim, first as insufficiently plead and again as barred by qualified immunity.

The Ninth Circuit has concluded that Capp in fact may assert a claim for violation of his First Amendment rights.  

During divorce proceedings, Capp became the object of San Diego Health and Human Services Agency inquiry. 

A county social worker contacted Capp to discuss his children and alleged substance abuse.  The children were interviewed without his consent.

Capp states that the social worker refused to answer his questions and terminated the interview.  Capp protested in writing to the social services agency. 

The San Diego family court dismissed a custody proceeding said to have been initiated by Capp’s wife at the social worker’s behest.  The family court denied the relief sought and chastised the agency.

A volley of correspondence and corrections ensued.  Capp was told allegations against him had been substantiated, then not, then told he was listed on a state registry concerning child abuse, then not.

Capp sued the social worker, social work supervisors, and the Health and Human Services Agency, claiming violations of his constitutional rights, in particular his right to be free from retaliation for exercising his First Amendment right to speak out against the proceedings initiated against him.

The Ninth Circuit reiterated the well established principle that speech protesting government action is constitutionally protection.  Retaliation for exercising that right is actionable. If an official act would inhibit an ordinary person from exercising First Amendment rights, the wrong may be reviewed in court. Thus, an injured person may succeed if it can be established that retaliation was a substantial or motivating factor in encouraging initiation of custody proceedings.  

Relief by means of a retaliation claim may be pursued even if it is recognized that the state and its social work are obliged to investigate claims of child abuse.  The presence of a legitimate motive will not, by itself, defeat the retaliation claim.

Where an individual can show that there was no substantiated concern for safety and that the individual was treated differently from others in similar circumstances, that evidence will permit an inference that retaliation prompted official action.

Even if Capp were able to show that retaliation for asserting his First Amendment rights to speak in protest of the child protective services agency’s actions, and that this was a motivating or substantial factor in encouraging Capp’s wife’s ex parte custody proceedings, the social workers would enjoy qualified immunity from suit unless they were found to have violated a clearly established constitutional right.

The Ninth Circuit recognized that a clearly established precedent recognized that the government cannot take action that would chill protected speech out of retaliatory animus for that speech.  Opinion, p. 22. Any government official would recognize that threatening legal sanctions or coercive action would violate the First Amendment and, as such, the social workers were not entitled to qualified immunity as a matter of law on appeal, although it could be explored further on remand.

The Ninth Circuit upheld dismissal of Fourth and Fourteenth Amendment claims as the question whether children are entitled to be free from unreasonable searches has not been clearly established and because, while the termination of parental rights could be seen as a violation of substantive due process rights, there is no right to be free from investigation.  As the Fourth Amendment claim failed, so too would the municipal liability claim, particularly where only a conclusory allegation was articulated.

JustLawful Observation:  The Ninth Circuit noted that its articulation of a potential claim in this case was quite close.  Nonetheless it would be unwise to read the decision as anything other than a cautionary tale for those charged with the administration of child protective services. 

Capp v. Cnty. of San Diego (9th Cir., 2019)

Federal Court Enjoins Enforcement of New Jersey’s Mandated Donor Disclosures of Dissemination of Political Speech

American for Prosperity v. Attorney General of New Jersey, No. 3:19-cv-14228 (D. N.J.) October 2, 2019.


New Jersey enacted a statute intended to render transparent the expenditure of money on political causes, requiring disclosure of donors’ identities where $3000 or more annually was given for “political communications.” 

The New Jersey governor refused to sign the bill as initially proposed.  While praising the goal of bringing “dark money” to light, the governor feared that the statute as drafted would infringe on First Amendment rights.

The New Jersey legislature then enacted an essentially identical but renumbered bill which the governor signed on the condition that changes be made to ensure conformity with the constitution and election laws.

No changes were made.

Americans for Prosperity, a group that speaks on diverse issues of public concern, sought and obtained an injunction against enforcement of the act.

Americans for Prosperity argued that the statute reached far beyond matters more appropriately reserved for electioneering.  The court agreed. The statutory mandate of disclosure of donor identify where speech is intended to influence elections goes too far and is too uncertain to be tolerated under the constitution and case law.

The perceived ills evoked the court’s pointed conference:  “Most constitutionally troubling to the Court is the way in which…the Act brings communications of purely factual political information into a disclosure and financial reporting regime historical limited to electioneering communications.”  Opinion, p. 38. 

Although the court confined its ruling to the facial challenge to the statute, the court opined that where politics as practiced can be observed to have invited threats, harassment, and loss of employment, it is not likely that the statuteuroy scheme would survive as-applied review.

Ams. for Prosperity v. Grewal (D. N.J.) October 2, 2019)

 

Badmouthing Police Officer Online, Absent Malice, May Not Demonstrate Bad Character Disqualifying Applicant from Licensure as Private Investigator

Gray v. State, No. 18-AP-65 (Kennebec Sup. Ct.) July 18, 2019.


Maine requires proof of character for licensure as a private investigator, as demonstrated through review by the state police.  In Gray’s case, the police were not well pleased with Gray’s online statements about a police officer, and disqualified him from licensure because he was seen as being unable to provide accurate accounts of matters. 

The Maine Superior Court applied the brakes to this position, observing that offering an opinion online is speech protected by the First Amendment.  In remanding for further administrative proceedings, the court concluded that If the posting were made with knowledge of its falsity or otherwise evinced actual malice, then consideration would be appropriate in the applicant’s character evaluation.  

Justlawful observation:  The judge sidestepped the quagmire that open season on online posting as character could invite while providing some guidance on evaluating troubling online behavior, while simultaneously avoiding what might very well turn out to be an epic feud between the police and the applicant for licensure. 

Gray v. State (Kennebec Sup. Ct.) July 18, 2019

Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)

 

Federal Court in Maryland Upholds Law Precluding Licensed Professionals from Practicing “Conversion” Therapy on Minors

Doyle, et al.  v. Hogan, et al., No. 19-cv-00190 (D. Md.) Motion to Dismiss Granted September 20, 2019.


A Maryland statute governing the provision of mental health services precludes provision of “conversion” therapy to minors.  Violation of the statute carries the risk of professional censure. 

“Conversion” therapy is the name applied to interventions intended to reorient an individual’s sexual identity, presumably from same sex or other preferences to heterosexual interest.  “Conversion” therapy has received substantial disapprobation from professional groups, and some professionals advocate that even if there were evidence to support the efficacy of conversion therapy, it should not be offered to minors.

Plaintiff Doyle asserted in federal court that the preclusion of delivery of conversion therapy to minors unconstitutionally impaired his speech rights and his religious liberty. 

The court disagreed, finding that while the conversion therapy involved speech, the administration of therapy was in fact conduct outside the realm of constitutional concern.  

Moreover, the court observed, the therapist’s freedom to speak of or about conversion therapy remains untouched by the statute.  A mental health services provider may provide information about or express an opinion about conversion therapy without fear. 

Central to the court’s determination was the inability of minors to provide informed consent for treatment. As the state interest in the health and well being of minors is at least substantial, if not compelling, imposing limitations on professional conduct to which the minor is legally unable to consent is not unreasonable.  In that minor children are not capable of autonomously exercising informed consent and in that others may exercise consent on their behalf, the state is not wrong in protecting minors from treatment to which they could not accede as a matter of law.

The court concluded that as therapist’s speech interests are not within the statute’s purview, neither were free exercise rights abridged, as the prohibition on “conversion” therapy for minors is a law of general applicability which does not substantially interfere with any belief or practice of religion.

The statute applies only to those who are licensed practitioners within Maryland.

Doyle v. Hogan (D. MD.) September 20, 2019

Ninth Circuit Asked to Reverse Dismissal of Complaint Alleging YouTube Is a Modern Public Square Subject to First Amendment Constraints Applicable to Government Entities

Prager University  v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.  


Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.  

Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC,  an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform.  PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”  

As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints.  PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment.  As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.  

PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.  

Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube  is properly exercising its own First Amendment rights as a private corporation.  

YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.  

YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.  

YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.  

YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.

Impact as Envisioned by Industry and Advocacy Leaders.  The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.  

The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums.  Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.  

The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.

Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.  

Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed.  The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers.  The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.

The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency.  Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.

Self-Governance, If Assured, Must be Assiduously Pursued.  The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards:  it must make an effort to do so diligently. 

The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression.  That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.

The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections.  The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums. 

Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.  

Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all. 

This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue.  Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.  

Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public.  Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.  

In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.

Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state. 

Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise.  CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment.  To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.

Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor.  Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now.  User run video sharing has never been a state function.  

Marsh is inapposite:  YouTube is not governing a town.  No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the  government by the First Amendment.  

Upending Application of the Law.  Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest.  Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.  

Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly.  “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues. 

JustLawful Prognostication.  Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found.  The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.  

Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.

Prager University v. Google and YouTube Appellant Brief

Prager University v. Google and YouTube Appellee Brief

Prager University v. Google and YouTube Appellant’s Reply Brief

Prager University v. Google and YouTube EFF Amicus Brief

Prager University v. Google and YouTube Computer and Communications Industry Association Amicus Brief

Prager University v. Google and YouTube Chamber of Commerce Amicus Brief

 

Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019

 

 

 

 

 

Judicial Encroachment on Speech Rights Must Be Articulated with Particularity

Bank of Hope v. Chon, No. 18-1567 (3d Cir.) September 17, 2019.


The trial court in this embezzlement case erred in failing to articulate why speech suppression was necessary to the fair and orderly proceeding of the case.  The Court’s order forbidding defendant from contacting bank shareholders to garner support was entered without the court’s stating its reason for so doing, and failed to consider less restrictive alternatives, all in violation of defendant’s First Amendment rights.

Bank of Hope v. Chon (3rd Cir., 2019)

Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.


A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)

Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).


Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)

Litigants’ Agreement Cannot Limit Public Access to Courts

Kentucky v. Marathon Petroleum Company, No. 3:15-cv-354 (W.D. Ky.) September 17, 2019.


First Amendment and common law rights of access cannot be waived by any party’s failure to object to a motion to seal or by the parties’ consent to place records under seal. Access rights rest with the public and may be limited in the court’s discretion for good cause, including the potential of disclosure of corporate agreements to impede corporate contract negotiations.

Kentuchy v. Marathon Petroleum Co. (W.D. Ky., 2019)

 

 

“Fake” News, Real Consequences: Circus of Suits Against Media Concerning Seth Rich Murder March Along

Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.).  District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.).  Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).


News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.  

Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage.  Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced  the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.  

As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.

Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.  

In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story.  Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.  

Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer.  Butowsky appeared in the media with commentary about the WikiLeaks allegations.

The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York.  The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.  

Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident:  harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable. 

As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.  

Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract. 

More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.  

Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler.  Wheeler did not meet with success:  his case in the Southern District of New York was dismissed at the pleading stage.

The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter.   Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox. 

Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch. 

Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.

Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting.  Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.

The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.

Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published. 

The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.

Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression.  The arrangement and presentation of information factors into the analysis.

No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.

Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person.  Nonetheless, the complaint provides allegations sufficient to plead malice.

Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice. 

The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could.  This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.

Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery.  The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing. 

The Story Continues in Courts.  Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing.  Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken.  The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false. 

Rich v. Fox News Network, LLC, et al. (2nd Cir.)

Butowsky v. Folkenflik, NPR, at al. (E.D. Tex.)

Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018)

The Constitutional and Cultural Clash Between Compelled Speech and Commercial Equanimity Continues: Arizona Holds Municipal Human Rights Act Unconstitutional As Applied to E-Commerce Custom-Made Wedding Invitations and Recognizes Claim Under State Free Exercise of Religion Act

Brush & Nib, LLC v. Phoenix, No. 18-cv-0176-PR. (Az.) September 16, 2019.


The Arizona Supreme Court has concluded that the Phoenix ordinance requiring equal treatment for all persons cannot be applied to compel the creation of wedding invitations for same-sex couples in view of the protections afforded pure speech and those afforded sincerely held religious beliefs under state law. 

A Product-Specific Decision. The court recognized the design and handmade productions of wedding invitations to be artistic creations protected as pure speech while refusing to opine concerning other aspects of plaintiffs’ business.  

An As-Applied Challenge. A portion of the municipal law that forbade statements that persons within protected classes would be unwelcome in a place of public accommodation was declared unconstitutionally vague by the Arizona Court of Appeals, leaving only an as-applied challenge before the Supreme Court.

Speech Doctrines, Protections, and Their Limits. The court noted that although the Arizona Constitution offers greater speech protections than does the United States Constitution, the distinction does not disturb the result in this case. 

The “compelled speech” doctrine developed by the United States Supreme Court establishes that the First Amendment forbids the government from demanding that an individual speak where to do so would offend his deepest beliefs.  This protection of autonomy and against compulsion extends to any requirement that an individual adopt the speech of others where to do so would offend his deepest beliefs.  

Not all speech enjoys the protection of the “compelled speech” doctrine, but “pure speech,” which includes original artwork, is protected by the First Amendment because of its self-expressive nature and not because of the medium chosen or the presence or absence of a particular message.

While a business does not forfeit First Amendment protections because it operates for profit, neither does it enjoy a blanket exemption from the laws generally applicable to commerce because the business involves speech or creative expression.  

Accordingly, plaintiffs’ business is not insulated by the First Amendment, but the particular custom made designs and products in issue do enjoy constitutional protection. 

Artistic Expression, Not Discriminatory Conduct. The court rejected the city’s argument that discriminatory conduct and not protected creation were in issue, and in particular rejected the suggestion that the plaintiffs’ position is a proxy for discrimination, for even if some protected groups were affected more than others by plaintiffs’ position, that does not cause plaintiffs’ to forfeit First Amendment protections.  Plaintiffs have no issue with same sex customers but aver that same sex marriage falls outside the Christian faith that is central to their enterprise.

It does not matter, the majority observed, that the creative process is collaborative with the customer or that no “endorsement” of same sex marriage is involved.

Ordinance Not Content Neutral As Applied. The court concluded that the ordinance, while content neutral, became content based as applied, and that, notwithstanding that a compelling state interest in fairness and equality in commerce are embodied in the ordinance, the breadth of the statute was fatal when strict scrutiny analysis was undertaken.  An ordinance aimed at inhibiting discriminatory conduct which includes speech within its sweep cannot be said to be sufficiently narrowly tailored to the government goal to be upheld. Speech regulations, where permissible, must be approached as “minimums, not maximums”

A Pointed Clash.  The majority chastened the dissenting judges for what it perceived to be hyperbolic revivification of history and stressed that the court’s conclusions in no way may be seen as permitting any merchant to fail to comply with the Phoenix public accommodations law. 

Religious Free Exercise Claim Valid. The majority concluded that plaintiffs articulated a viable claim under the state religious freedom act which, like its federal analog, provides that an individual may be exempted from a generally applicable law if compliance with the law would unduly burden the individual’s religious beliefs and the state may otherwise accomplish its legitimate ends.  

Plaintiffs are inarguably Christian and the compelled creation of work contrary to their beliefs would burden the exercise of their faith, the court observed.  The state would not similarly suffer if plaintiffs were exempted, for the surviving provisions of the public accommodations ordinance remain undisturbed.  

Conformity to Uniformity Not Outcome-Determinative. The need for uniformity in the administration of the law cannot be permitted to deny essential First Amendment rights, and the city’s speculation about flood-tides of applications for exemption is hypothetical and, in any case, it is the obligation of the courts and administrative bodies to make the sorts of determinations about claims that permitting exemptions would require.

Phoenix Not Without Armature. Neither has the city been forced to forfeit its general interest in public welfare at the altar of personal religious liberty, the majority observed, for the city may contest the sincerity of any asserted religious belief, may challenge any religious assertions as pretextual and reflective of an overarching discriminatory intent.  Finally, the city may show that any exemption contemplated would create too great a burden on the city to be permissible.

Litigative Burden Ameliorated. That plaintiffs have prevailed on their state free exercise law  claim entitles them to an award of attorneys’ fees.

Concurrence Cheers State Constitutional Protections.  One judge wrote separately to encourage the celebration of Arizona’s constitutional speech protections, which are thought to be more extensive than those of the U.S. Constitution.  The concurrence urged that the court consider its own state’s constitution rather than too readily looking to federal decisions. 

Errors Noted and Civil Rights Regression Decried. Dissenting judges have opined that the majority has erred in permitting anodyne and uniform wedding invitations providing the same information for all customers to become art subject to First Amendment protection and to permit discrimination on the basis of sexual orientation.  

Going Too Far to No Good End. The dissent questioned the majority’s need to reach constitutional questions where they need not be in addressing the application of this municipal ordinance.  

There Are No Less Restrictive Means. The dissent stressed that at issue is a content neutral conduct regulation for which no less restrictive means of application can be found:  either merchants are precluded from discriminating on the basis of protected status, or they are not. If they are permitted to discriminate, the statute fails of its essential — and recognized — compelling end. 

Infected with Bad Thinking. The dissent scorned the majority for embracing the pernicious idea that a refusal to sell to certain customers is protected expression and that the public interest in equality is insufficient to require a business to serve all customers where an element of expression is involved. 

Equanimity and Equal Treatment Cannot Be A Substantial Burden. The dissent noted that the concept of a “substantial burden” on religious exercise is not clearly defined, but found it difficult to imagine that such a burden could be found where enforcement of the ordinance would require only that the plaintiffs make and sell the same product for same sex couples as it does for others.

In the Business of Serving the Public, Not the Business Owners Beliefs. Businesses cannot be permitted to discriminate based on the business owners’ views, or the entire public accommodations law scheme will be defeated.  

Offering the Same to All Cannot Be So Different. A dissenting judge writing separately takes issue with the idea that any speech is being compelled where the plaintiffs are being asked only to create  the same product for all, and also observes that no part of the plaintiffs’ beliefs are being burdened by being asked to treat all customers equally. Plaintiffs are not facing a forced choice between their beliefs and their livelihood, as they are not being asked to support same sex marriage, only to treat all customers equally.  

Suggestive of Diametrically Opposed Weltanschauungs. The majority and the dissenting justices in this case appear to hold fundamentally different intellectual and legal constructs of the issues central to the case, with each compelling the exact opposite ordering of constitutional and statutory priorities. The majority holds sacrosanct the principles of individual autonomy and freedom from government interference in speech, expression and faith.  The dissent does not see this case as one in which the government is compelling the plaintiffs to act in disharmony with their beliefs, but one in which the plaintiffs seek to conduct their business in a way that discriminates against certain customers,which conduct cannot enjoy First Amendment protection. For the dissenting justices, the recognition of plaintiffs’ claims undermines the primacy of the protections accorded to equal consideration for all in the marketplace.

Brush & Nib, LLC, et al. v. City of Phoenix, S.Ct. AZ, September 16, 2019

Video of Oral Argument in Brush & Nib LLC v. City of Phoenix

Court of Appeals Opinion:

Brush & Nib LLC v. City of Phoenix, 1 CA-CV 16-0602

 

 

 

 

 

Where Compelled Speech Clashes with Commercial Comity, Eighth Circuit Concludes State Anti-Discrimination Law Unconstitutionally Impairs Videographers’ Rights.

Telescope Media Group, et al. v. Comm’r, Minnesota Dept. of Human Rights, No. 17-3352 (8th Cir.) August 23, 2019.


Two Minnesota videographers sought to enjoin enforcement of the state’s anti-discrimination law, which would require them to serve all couples equally without regard to sexual orientation. The Eighth Circuit has vacated denial of injunctive relief, concluding that the anti-discrimination law is a content based regulation of expressive speech. The court held that First Amendment precludes the state from compelling or inhibiting speech: even anti-discrimination laws must comport with the Constitution.

It does not matter if the speech in issue annoys, nor does the form of enterprise disturb the result that the making of videos is constitutionally protected expressive speech, the court noted. It does not matter that the human rights act does not mention speech on its face. The statute demands that if plaintiffs decide to speak on one topic, they must then speak on a topic they otherwise would not, and in a manner contrary to their views. The plaintiffs’ alternative is to withdraw from the marketplace of ideas, itself a restriction on speech.

The federal appellate court agreed that the state interest in asserting equal access to public accommodations and services is compelling. Nonetheless, the First Amendment protections afforded speech impact the analysis. Discriminatory acts may be prohibited but speech itself is not a public accommodation, nor can anti-discrimination laws provide access to participate in others’ speech.

The Eighth Circuit worried that the speech policies compelled by the anti-discrimination statutes would have no stopping point. The court rejected the notion that the statute regulated conduct and only incidentally burdened speech, which would would have permitted the statute to survive strict scrutiny.

A disclaimer would be insufficient to cure the harm of compelled speech, as it would require affirming yet denying the state’s policy simultaneously. And other permissible prohibitions are easily distinguished: denial of service on the basis of protected status is an act, not speech, and is subject to state intervention.

The court extended its analysis to recognize the hybrid nature of the plaintiff’s Free Exercise claim. More than a neutral law of general applicability is involved where communicative activity is inextricably a part of a Free Exercise claim. The court observed that ultimately the hybrid rights theory would make no difference, because the speech claim is already subject to strict scrutiny, but the hybrid rights claim has been articulated and may go forward.

The dissent observed that in no instance does the law extend “affirmative constitutional

protections” to private discrimination. The Supreme Court has recognized that the state may limit, through its general laws, the First Amendment rights of a business owner who serves the public.

The dissent rejected the compelled speech analysis and insisted that speech messages — or silence — remain available as ever, but plaintiffs may not serve only some sexual orientations and not others. Any expressive aspect of the service is not sufficient to change this general law into a content based regulation, nor can this “expression” be allowed to permit discrimination.

Plaintiffs have conceded that their videography business is a public accommodation subject to the statute, and plaintiffs for profit enterprise is not subject to religious exemption. Plaintiffs cannot define their business to include discrimination, particularly where the focus of the public accommodation laws is on the customer, not the merchant. It is immaterial that a particular behavior — marriage — is involved, as characteristics as well as classes are protected interests. Offering some, but not all, services to same sex couples remains discriminatory. It does not matter that plaintiff’s concern is only with same sex marriage and not with same sex preferences in general.

The dissent rejected the content regulation analysis and pointed out that precedent concerns the application of strict scrutiny to a particular activity that would result in a speech burden In such cases, the speaker’s conduct is of concern, but that cannot be the case here, where the customer’s expression in the wedding videos is the primary message, even if the plaintiffs exercise editorial control over their videos.

The dissent dismissed the Free Exercise claim by pointing out that the plaintiffs’ beliefs are undisturbed: only their freedom to act is subject to regulation, and only incidentally so, and they are not free to import their beliefs into the statutes that bind others.

The dissent noted that precedent is clear that anti-discrimination statutes do not impermissibly burden religion and that the “hybrid” claim theory advanced by the court services from dicta recognizing a possible claim: it enjoys no legal force. Even if it did, as there is no Free Speech claim, there is no hybrid rights claim.

Telescope Media Grp. v. Lucero (8th Cir., 2019)

Calamitous Course Correction: Defamation Plaintiff Avers that Huffington Post’s Clarification Only Made Matters Worse

Evans v. The Huffington Post and Ashley Feinberg, No. 1:19-cv-00536 (S.D. Miss.).  Complaint filed August 21, 2019. Defendants’ answer due October 16, 2019.


In September, 2018, the Huffington Post and its reporter, Ashley Feinberg, clamoring for background on the appointment and confirmation of Brett Kavanaugh to the United States Supreme Court, published an article describing a raucous, drug-fueled atmosphere at the elite Georgetown Preparatory School that Kavanaugh had attended. 

The Huffington Post article intimated that the students’ lives were so degenerate as to implicate two of them, including the plaintiff, then a Georgetown Preparatory School student, in the 1984 overdose death of David Kennedy, son of Robert Kennedy, in Palm Beach, Florida.

The Huffington Post asserted that Derrick Evans, today a teacher and social and environmental justice advocate, was involved in procuring the drugs that killed Kennedy. 

When Douglas Kennedy, David Kennedy’s brother, who was said to have been with Evans in Florida, insisted on retraction, the Huffington Post agreed and complied, sanitizing the statements about Kennedy, but leaving — and allegedly underscoring — the statements about Evans.

The published “correction” was compounded by indicating that support for its statements could be found in an affidavit said to be in the possession of the New York Times.  Evans asserts that no such affidavit exists and that in fact he participated in the identification and arrest of the individuals who actually provided drugs to David Kennedy.

Further corrections referenced “mischaracterization” of individuals’ involvement.  Evans claims this correction is not sufficient because, in the absence of any involvement in David Kennedy’s death, there can be no mischaracterization.

The story was further refined and references removed.

Evans maintains that the publication accused him of criminal activity, making it libel per se.  Evans alleges that Huffington Post’s failure to sufficiently confirm or disconfirm the statements published made the publication malicious and with willful disregard of the truth or falsity of the statements.

Defendants are to answer on October 16.  Until then, and perhaps always, editors may do well not to place reliance on any purported curative powers of corrections.

Evans v. Huffington Post and Feinberg_Complaint August 21, 2019 (S.D. Miss.)

 

Perhaps That Editorial Wasn’t Fit to Print: Vacating Federal Trial Court’s Dismissal, Second Circuit Permits Sarah Palin to Proceed with Defamation Action Against the New York Times

Palin v. The New York Times Company, No. 17-3801-cv (August 6, 2019).


Former vice-presidential candidate and Alaska governor Sarah Palin sued the New York Times for defamation subsequent to the newspaper’s publication of an editorial on the occasion of the 2017 shooting of Congressman Steve Scalise.  The New York Times revived the discredited allegation that Palin’s Political Action Committee’s (PAC’s) use of cross-hairs on a campaign map was an incitement to political violence, precipitating the 2011 shooting of Arizona Congresswoman Gabriel Giffords.

The United States Court of Appeals for the Second Circuit has vacated dismissal of Palin’s complaint, which may, as amended, now proceed to resolution in the federal court in the Southern District of New York.

The basis for the appellate panel’s determination was largely procedural but not to be taken lightly on that account.  The court of appeals observed that the trial court adduced evidence in a hearing intended to clarify whether Palin had pleaded “actual malice” with sufficiency to withstand dismissal.  In ruling on the defendant newspaper’s motion to dismiss, the judge went beyond matters in the pleadings and, usurping what would ordinarily be a jury function, found facts in favor of the New York Times.  Even had the trial court wished to convert the motion to dismiss into one for summary judgment, this was not done and could not with integrity be done, the court of appeals found, where Palin had not had a fair opportunity to present material supporting her claim.

The bounds of procedural fairness that the Second Circuit has outlined will keep courts and counsel on their toes, but the significance of permitting further proceedings touches on two significant points of the law of defamation that routinely form impenetrable barriers to plaintiff’s success.

Palin is a public figure, and as such she cannot prevail without showing that the allegedly defamatory publication was made with “actual malice,” defined as knowing or reckless disregard of the truth of the statement in issue.  The Second Circuit was unwilling to permit dismissal to stand without exploration of Palin’s support for the position that the New York Times had knowledge that the assertions about her PAC had been discredited.  The sufficiency of review of material on hand that dispelled the ‘incitement’ allegation before publication and any influence on Times’ editorial writer’s arising from family ties to a gun control advocate are matters of credibility for a jury’s determination.

Taken as a whole, the appeals court found that to the extent that these circumstances could give rise to an inference of recklessness, a plausible claim had been stated, and the trial court’s inclination toward the plausibility of the other party is not a consideration in evaluating the sufficiency of the claim.

Of equal significance is that the publication in question is an editorial.  Definitionally, an editorial proffers opinion, and definitionally, an action for defamation cannot be brought to challenge opinions.  Such actions may succeed only where opinion is grounded in or interwoven with falsehoods.  The Second Circuit’s willingness to entertain the notion that linking Palin to the 2011 shooting involved more than opinion permits some latitude in assessing what is necessary to demonstrate “provable fact” that would separate actionable factual defamation from mere opinion.

It is of course unknown whether Palin will prevail in her renewed proceedings.  Even if she does not, however, the claim itself, concerning an opinion published about a public figure, serves notice to publishers that the impenetrability of press protections is not as inviolable as it has heretofore been believed to be.

Palin v. New York Times 2nd Cir. August 6, 2019

 

 

 

 

Ill Gotten? No Problem! First Amendment Protects Publication of Purloined Democratic National Committee Information, Southern District of New York Concludes

Democratic National Committee v. Russian Federation, et al, No. 18-cv-3501 (JGK) (S.D.N.Y. July 30, 2019).


There are few — if any — freedoms more deeply cherished in the United States than that of the press to publish, as the New York Times has avowed since 1897, “All the News That’s Fit to Print.” In matters of public interest, unless a publisher has knowingly participated in theft of information, no criminal or civil liability may attach.  To hold otherwise, the Supreme Court has held, would be an unconstitutional prior restraint upon the press. This is so, the Court has held, even if the publisher is aware that the material provided to it was not come by honestly.  Bartnicki v Vopper, 532 U.S. 514 (2001); The Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Company., 443 U.S. 97 (1979); New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

Settled law in unsettling times.  The recent reiteration of these principles by the United States District Court for the Southern District of New York was occasioned by a suit by the Democratic National Committee (DNC) against Donald J. Trump For President, Inc. ; Donald J. Trump, Jr.; Paul J. Manafort, Jr.; Jared C. Kushner; George Papadopoulos; and Richard W. Gates, III; Roger J. Stone, Jr.; the Russian Federation; Aras Iskenerovich Agalarov; Emin Araz Agalarov; Joseph Mifsud; WikiLeaks; and Julian Assange.

The DNC alleged, and the court on motion to dismiss assumed to be true, that the Russian Federation hacked into the computers of the DNC, siphoned substantial numbers of significant documents.  The Russian Federation next engaged in a minuet with the Trump campaign and its various principals as well as with Wikileaks and Assange, which resulted in disclosures of the DNC’s theretofore private information. 

The DNC alleged that the Trump campaign welcomed and was benefited by the Russian Federation’s actions and that publication of DNC’s stolen information was unlawful. 

The Southern District of New York rejected the DNC’s contentions because the Russian Federation, as sovereign, cannot be sued in the United States courts by private entities, because the First Amendment protects publishers of unlawfully obtained information, and because the defendants could not be civilly liable for  conspiracy, if one were found to exist, to achieve the lawful end of the election of a presidential candidate.  

The court observed that the Supreme Court has been plain in its view that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co.,, 443 U.S. 97, 102 (1979).  (Opinion, p. 33-34). The law distinguishes the publication of stolen information from the act of theft. Bartnicki v Vopper, 532 U.S. 514 (2001) (Opinion, p. 34) . 

The federal court was aided in its determination by amicus submissions by The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union.  

The upshot: getting to the truth may involve some discomfort, and may not always be pristine. Leaving aside for a moment the catnip of campaign hi-jinx, it may strike some as far from reasonable to extend the insulation afforded by the First Amendment as far as it has been here, and perhaps as far as it has been historically.  Others would argue that the occasional publication of tainted information is but a small price to pay to ensure the continuous flow of information about matters of public concern that is held to be central to a free society.  

The future. Whether appeal will ensue is not known at this writing. 

Source Material. The opinion of the Southern District of New York, the principal Supreme Court cases relied upon, and the amicus submission presented to the court are provided below.  

Democratic Nat’l Comm. v. Russian Fed’n (S.D. N.Y., 2019)

Bartnicki v Vopper, 532 U.S. 514 (2001)

The Florida Star v. B.J.F., 491 U.S. 524 (1989)

Smith v. Daily Mail Pub. Co.. 443 U.S. 97 (1979)

New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

DNC v. Russian Federation et al Amici Curaie Brief

 

 

 

 

 

 

A Matter of Opinion: Federal Court in Kentucky Dismisses High School Student’s Defamation Case Against the Washington Post Stemming from Reporting of Charged Encounter on the National Mall

Nicholas Sandmann v. WP Company, LLC, d/b/a The Washington Post, No. 2-019-00019 (WOB-CJS).  Opinion and Order of Dismissal with Prejudice, July 26, 2019 (E.D. Ky.)


An encounter between a high school student and a Native American activist on the National Mall in January, 2019, was videotaped and widely distributed on the internet.

The day having been one of several groups’ gathering to exercise First Amendment freedoms, the appearance of conflict between an adolescent wearing a MAGA (“Make America Great Again”) hat and a drumming Native American was undoubtedly newsworthy and of public interest.

Interaction among students from a Catholic High School who had traveled to Washington to engage in pro-life activity and a Native American participating in an Indigenous Peoples’ March could only be catnip to those inclined to perceive any encounter between persons of differing demographic groups as a manifestation of one form of social ill or another.

Upon posting of the video, the internet blew up, and the commentariat raged apace, in general denouncing the adolescent Sandmann and applauding the Native American Nathan Phillips.

Some days hence, questions arose as to the bona fides of the initial accounts of the exchange, which questions were buttressed by disclosure of additional video.

Religious superiors affiliated with Sandmann’s high school condemned the incident, a position from which retrenchment was necessitated upon disclosure of additional information.

Interviews and talk show appearances ensued.  Sandmann was interviewed, as was Phillips.  Pundits weighed in and editorialists opined. The public shared its views and the Twitterverse was alive with chatter about this alleged confrontation between individuals presumed to be from different worlds.

Counsel volunteered to help Sandmann, who had been thrust into the public spotlight at an early age, to address the consequences of perceptions of his activity.  As a result, multiple lawsuits have been filed against major media.

On July 26, 2019, the United States District Court for the Eastern District of Kentucky dismissed Nicholas Sandmann’s complaint against the Washington Post with prejudice.

The federal district court has concluded that, as a matter of law, Sandmann had not stated a claim of defamation under Kentucky law.

The court enumerated the elements of defamation under state law and referred to Supreme Court precedent establishing that opinions on matters of public concern are not actionable without provably false factual statements.  Opinion is fully constitutionally protected,  and there can be no legal remedy for statements  that cannot reasonably be seen to be stating facts.  Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).

The court found that some statements in the seven articles published by the Washington Post were not specific to Sandmann, and were not identifiable to Sandmann, and thus were not actionable.

The court also found that statements made by Phillips that Sandmann “blocked” him from moving and that Phillips felt fear were statements of opinion which, n the absence of demonstrable underlying factual falsity, were not actionable.

Additionally, the court found the statements challenged were not defamatory.  It is not enough,the court observed, that an allegedly defamatory statement is “annoying, offensive, or embarrassing.”  (Op. at 11).  The statements must expose the claimant to “public hatred, ridicule, contempt or disgrace,” or induce in others a bad opinion (Id.)

The court turned to the defamatory nature of the statements published, which Sanamann alleged indicated that he assaulted or intimidated Phillips, uttered taunts, or engaged in racist conduct.   The court concluded that the published articles said no such things.

The court offered that, it analyzing the case as one of libel per se, the court was precluded from venturing beyond the plain meaning of what was actually published or to engage in explanation, enlargement or innuendo to add to the words allegedly libelous effect (Op. at 20-21).

Any consequences allegedly suffered by Sandmann– such as social media scorn — were without significance to the court, as extrinsic evidence would make the case one of libel per quod, which was not, in the court’s view, the claim before the court, which was one of libel per se.

A published account indicating that  a public encounter was heated or tense would not be sufficient to meet the elements of defamation, nor would rhetorical headline hyperbole be found defamatory.

Phillips’ subjective account of his experience of fear was not defamatory nor could assigning political affiliation to Sandmann subject Sandmann to the sort of social contempt required for statements to be libelous per se.  Neither Sandmann’s statement of his subjective intent nor Phillips’ description of his subjective emotional state are  susceptible to objective verification.  As such, these accounts cannot be actionable in defamation.

The court observed that shielding opinion from civil liability serves to protect First Amendment speech and press interests.

Prognostication: Impossible.  As noted above, Sandmann’s case against the Washington Post is but one of several cases in which he seeks to recover for alleged harm suffered as a result of the media firestorm that ensued from his encounter with Phillips.  If the decision here is any indication, subsequent cases may be intensively fact driven.  Whether the breadth of construction of statements of perception such as “blocked,” which is arguably a verifiable and measurable matter, will be accorded in other cases remains to be seen.  Of equal significance is whether other cases will be limited to consideration of libel per se.

Sandmann v. Washington Post, Opinion and Order of Dismissal July 26, 2019

 

 

 

 

 

Not Who, But What: Supreme Court of Minnesota Shifts Qualified Privilege in Defamation from Speaker to Spoken, Concluding that Commentary on Matters of Public Interest May Enjoy a Qualified Privilege No Matter Who the Speaker Is

Maethner v. Someplace Safe, Inc., No. A17-0998 (Minn. Sup. Ct.)  June 26, 2019.


Plaintiff’s ex-wife and a local domestic violence non-profit included plaintiff’s name, which the ex-wife retained, in online news of her award for involvement in domestic violence advocacy.  Plaintiff was not referenced directly, but lived in an area of close social connections and a relatively small population.

Plaintiff sued both the non-profit and his ex-wife for defamation.  The Supreme Court of Minnesota concluded that damages for emotional harm, standing alone, are not recoverable in defamation because proof of injury to reputation is required.

Recovery for defamation per se cannot be had where First Amendment protections are involved.

The law of defamation provides a qualified privilege to media defendants who may publish without fear unless plaintiff demonstrates actual malice.

Private parties traditionally enjoy no such privilege.

In this case, though, the Minnesota Supreme Court determined that  a distinction between media and private parties ought not remain the core focus of defamation analysis.  The key issue in cases of presumed damages is not the status of the parties but whether the challenged speech concerns matters of public concern.

The court outlined the method of analysis.  Presumed damages may be available if the speech challenged as defamatory per se is not about matters of public concern.  Unless a plaintiff can show actual harm to reputation or actual malice, there can be no recovery for defamation per se for matters not of public concern.

The decision is significant in that it places media and non-media defendants on the same footing for purposes of defamation per se, and offers both some protection where non-malicious statements about matters of public concern are in issue.

The Minnesota Supreme Court declined to impose on the non-profit any duty to investigate plaintiff’s ex-wife’s assertions of domestic violence.  The court rejected the notion that no duty in negligence could ever attach.  Rather, conduct must be evaluated in accordance with what a reasonable person would do in similar circumstances.

The court concluded that the non-profit did not breach any duty to investigate.  The non-profit was not unreasonable in basing its views on its interactions with plaintiff’s ex-wife in the absence of evidence indicating that there was any reason to question her credibility or honesty.

Although custom within the publishing profession may be relevant, custom does not control, because plaintiff offered no proof that a reasonable person would investigate or that non-profit advocates customarily investigate claims of their service recipients.

One justice disagreed with the court’s conclusion that no duty to investigate attached on these facts.  While a qualified privilege may attach to professional discussions such as employee references, credit assessments, or medical evaluations, publication about plaintiff’s ex-wife’s status as a survivor of domestic violence enjoys no such privilege.

Adherence or not to custom or practice is not to be conclusively presumed to constitute “due care,” the dissent noted.

While the dissent acknowledged the concerns  — such as the absence of corroboration in many domestic violence cases — that prompted the non-profit to credit plaintiff’s ex-wife’s assertions, the dissent found equally compelling the principle that plaintiff be afforded a fair hearing.  The court here would impose on plaintiff a duty to show that the party whose statement was believed was not credible, a position which the dissent felt deflects from the core issue of whether investigation needed to be conducted.  Where questions about the non-profit’s conduct exist, judgment as a matter of law was not proper.

While many will be pleased by the leveling of status between media and non-media defendants, much more will likely be in issue in the future concerning whether any duty to investigate exists before a non-media defendant publishes information.

Maethner v. Someplace Safe, Inc. (Minn., 2019)

 

 

 

 

 

 

 

Unprotected: Pennsylvania Superior Court Affirms Sentence for “Lewd” Facebook Posts

Commonwealth v. D’Adderio, J-A06041-19, No. 833 MDA 2018 (Sup. Ct. Pa.)


Kelly Marie D’Adderio was not pleased with an ex-friend’s marriage to her ex-husband.  She posted her views on Facebook for the world to see.  Her posts contained graphic language and expressed pleasure that her ex-husband had cheated on her ex-friend, and made allegations about drug use at her ex-friend’s house, where D’Addario’s children stay.

Ex-friend Maria Memmi’s stepchildren showed her the posts.  Memmi had no Facebook account of her own.  She sought police intervention.

The police were unable to persuade D’Adderio to take down her posts, and more posts ensued.

The state filed a criminal complaint against D’Adderio in June, 2016 and a criminal information charging harassment ensued in March, 2017.

D’Adderio moved unsuccessfully to dismiss the criminal charges, asserting that “lewd” or “lascivious” speech enjoys First Amendment protection.

A jury convicted D’Adderio of harassment.  She was sentenced to a year’s probation, 100 hours of community service not contact with a minor child reference in the posts, and fines and costs.

On notice of appeal, the trial court opined that there existed sufficient evidence to find that appellant posted lewd messages with no communicate purpose with an intent to harass, and opined that the harassment statute is not overbroad.

On appeal, the Superior Court framed the questions for consideration:  1) whether non-obscene but lewd and lascivious speech about but not to another is protected under the federal and state constitutions, and 2) whether the harassment statute is overbroad.

The court observed that the statute prohibits conduct which is not constitutionally protected and which is intended to alarm or annoy.  Lewd language is not synonymous with obscenity, and the issue of whether the speech was to or about Memmi is of no moment, the court concluded.

The U.S. Supreme Court has concluded that epithets and personal abuse fall outside constitutional protection.

D’Adderio’s commentary did not express social beliefs or constitute legitimate comment.

Because the statute in issue requires an intent to harass, it does not capture protected speech in its ambit, and is not, therefore, overly broad, for it does not criminalize legitimately communicative speech.

Commonwealth v. D’Adderio (Pa. Super. Ct., 2019)

Beyond Geographic Boundaries: Locus of Online Activity for Jurisdictional Purposes Challenged in Case Asserting Ex Parte Restraining Order Violated Section 230 and the First Amendment

Narcisi v. Turtleboy Digital Marketing, LLC,No. 2019-08-0329-JJM-PAS (D. R.I.)


An online kerfuflle erupted when Aidan Kearney, owner of Worcester Digital Marketing, formerly Turtleboy Digital Marketing, posted material critical of Narcisi, a Rhode Island resident and website operator.

Narcisi sued for defamation in Rhode Island state court, claiming that Turtleboy defamed plaintiff and plaintiff’s business interests.  Narcisi claimed that following postings on Turtleboy’s site, Narcisi received unwanted commentary and messages from Turtleboy’s followers.

Narcisis sought and obtained an ex parte order forbidding contact and requiring take down of existing posts.

On May 16, 2019, apparently without notice to Turtleboy, the Rhode Island Superior Court in Washington County entered a restraining order enjoining Turtleboy from, inter alia, contacting, cyberbullying, or otherwise interfering with Narcisi.  The order demanded that Turtleboy remove any posts about Narcisi.

Kearney states that defective service was made concerning a late May hearing.  On appearing to oppose continuance of the restraining order, the judge advised he could not speak for his company.

Further hearing was scheduled for June 19th.  Counsel for Kearney removed the case to federal court and has moved to dismiss for lack of personal jurisdiction.

Kearney/Turtleboy’s success in garnering the attention of the American Civil Liberties Union promises a vigorous First Amendment challenge should the issues of unconstitutional prior restraints and Section 230 immunities be reached.

That the speech and responsibility issues may not be reached may only make the case more interesting, for Kearney/Turtleboy essentially challenges the “presence” of internet postings for jurisdictional purposes.

Kearney/Turtlboy asserts that there exist no contacts with plaintiff or plaintiff’s business or the State of Rhode Island that would support personal jurisdiction.

The core issue is whether internet posting, which have no physical presence in the traditional three dimensional sense, are sufficient to constitute contacts for purpose of asserting personal jurisdiction.

Some courts have said no.

Plaintiff has yet to respond to the motion to dismiss.

Time will tell.

2019 06 24 Motion to Dismiss USDC D. R.I.

2019 06 24 Memorandum of Law re Dismissal USDC D. R.I.

2019 06 21 Kearney Declaration USDC D. R.I.

2019 05 16 State TRO

2019 05 13 State Complaint

 

 

 

 

This !!!##@@!!!## Mark is Your !!!##@@!!!## Mark: Lanham Act’s Prohibition of Registration of “Immoral” or “Scandalous” Marks Fails First Amendment Analysis

Iancu, Undersecretary of Commerce for Intellectual Property, et al. v. Brunetti, No. 18-302.  June 24, 2019.


The Supreme Court has held to be invalid as constitutionally impermissible viewpoint discrimination that portion of the Lanham Act, 15 U.S.C. Section 1052(a) that prohibits registration of “immoral” or “scandalous” trademarks.  The decision echoes the Court’s two term old determination in Matal v. Tam, 582 U.S.      (2017) that found constitutionally defective that portion of Section 1052(a) of the Lanham Act that prohibited registration of “disparaging” trademarks. 

The Court’s determination in Brunetti, which concerns a mark that resembles a common vulgarity with sexual connotations, was not surprising. What may to some be refreshing is that some of the justices seem ill at ease with the practice of analyzing First Amendment claims using outcome determinative classifications and rules and would favor a move toward looking at cases on the basis of which First Amendment principles would be served — or not — by review.  

Writing for the Court, Justice Kagan reiterated in this week’s opinion its core view that the government may not “discriminate against speech based on the ideas or opinions it conveys.” (Slip op.4).  The Court was unable to consider the terms “immoral” or “scandalous” to be other than value and meanings based and selective of ideas and therefore not susceptible of a saving viewpoint neutral construction. 

The Court rejected the government’s suggestion that the government would read the words “immoral” and “scandalous” jointly and only refuse to register marks that a majority of society would find to be objectionable  To do so would not address the statute as it is written but instead would construct a new statute according to the government’s wishes.  

Having found the statute to improperly consider the suppression of views, the Court observed that it is no answer to suggest that the statute could be construed to suppress only some views, for this is precisely the ill that the prohibitions on viewpoint discrimination are intended to remedy.

Justice Alito wrote separately in concurrence, noting the importance of the avoidance of viewpoint discrimination as a “poison to a free society,” and which is particularly problematic now, when free speech is under attack.  The susceptibility of the words “immoral” or “scandalous” to exploitation for illegitimate ends compels the Court’s conclusion in this case but does not prohibit Congress from fashioning new legislation.

Chief Justice Roberts concurred in part with the majority that the word “immoral” is not susceptible of a limiting neutral construction but suggests that the word “scandalous” may be.  Agreeing with dissenting Justice Sotomayor, the Chief Justices saw no reason to “give aid and comfort to those using obscene, vulgar and profane modes of expression.”  

Justice Breyer concurred in part and dissenting in part and agreed with Justice Sotomajor that a narrowing and constitutionally saving construction of the word “scandalous” could be acceptable.  This would permit prohibition of registration of only highly vulgar or obscene expression.

Justice Breyer observed that categorical analyses of speech ill serve First Amendment analyses.  The central and crucial question is whether any measure serves or deserves the values the First Amendment is intended to protect.  Not only are rules insufficient to be outcome-determinative, and ought to be mere guidance, but the court here has also not addressed the primary criteria for selecting among extant rules by determining whether the trademark statute concerns commercial speech or government speech.  

Justice Breyer agreed with Justice Sotomayor that elucidation of the distinction between content based discrimination and viewpoint based discrimination s not easily accomplished.  Justice Breyer would not find harm in prohibiting registration of highly vulgar or obscene words. Justice Breyer could not see how limiting registration of these emotionally provocative expressions constitutes “viewpoint discrimination.”

Moreover, it is difficult to avoid perceiving that any limitation on registration is content based.  The critical question in any First Amendment analysis, in Justice Breyer’s view, is whether any regulation causes harm to First Amendment interests that is disproportionate to any regulatory objective.  

Under such analysis very little harm to First Amendment interests would be worked by precluding registration of “highly vulgar or obscene” trademarks, particularly as merchants may use such marks without registration.

In dissent, Justice Sotomayor offered that the Court’s conclusions in this case will prohibit denial of registration of the most vulgar, profane and obscene remarks.  

Contrary to the majority, Justice Sotomayor perceives that the word “scandalous” may be interpreted to mean that expression which is shocking to a sense of decency.  

The distinction between content based discrimination and its most odious manifestation, viewpoint based discrimination, is not easy and it is clear that not every restriction on modes of expression is viewpoint based.  Lighting fires in the public square, uttering fighting words and other expressions are categorically excluded from First Amendment protection. These actions and utterances obtain their status because they are intolerable modes of expression: this is true no matter what the content or point of view advanced may be. These modes of expression cannot be tolerated no matter the idea.  As such, restricting registration of obscene or vulgar remarks is content based but viewpoint neutral and so the Court’s precedents have concluded.

Finally, it is not necessary to submit any and all content discrimination — even that which is viewpoint neutral — to strict scrutiny.  But when strict scrutiny does not apply, viewpoint based versus viewpoint neutral considerations may be outcome-determinative.  

Trademark registration is a commercial benefit which facilitates but is not necessary to trademark enforcement.  Once provided it cannot be administered in a viewpoint discriminatory manner. Trademark protections exist without government registration but their recognition and enforcement may be enhanced by registration. The government need not operate a trademark system but when it does it is permissible to permit some restrictions, particularly where their imposition may help some but not hurt others.

Even If the public does not associate trademarks with the federal government, the government’s involvement with registration does involve promoting particular marks, concerning some of which the government would decline association. The government has a reasonable interest in refraining from “lending its support to marks that are obscene, vulgar or profane.’” Prohibiting registration of such marks is reasonable, viewpoint-neutral, content based regulation and the narrowing construction of “scandalous” offered here would save the statute and inhibit a rush to registration of offensive materials.

The First Amendment guards the use of the words in issue here. This does not mean, Justice Sotomayor observed, that the government needs to support their use. 

Justice Sotomayor stressed that the instant case is a facial challenge.  The saving construction proffered would not be overly broad. Justice Sotomayor cautioned that if the statute were saved by a narrowing construction, the courts ought nonetheless take seriously viewpoint concerns raised in as-applied challenges.

Iancu v. Brunetti , U.S. Supreme Court, June 24, 2019

Tradition! World War I Memorial Cross on Public Land Not a Violation of the Establishment Clause, Supreme Court Concludes

American Legion, et al. v. American Humanist Ass’n, et al, No. 17-1717; Maryland National Capital Parks and Planning Commission v. American Humanist Ass’n et al., No. 18-18.   June 20, 2019.


The Freighted Hand of History. The Supreme Court has concluded that the history and custom of incorporating cross symbols in war and other memorials, as well as the susceptibility of the cross to secular as well as religious meaning, indicates that the presence of the World War I memorial cross situated on a publicly owned and maintaining traffic island in Bladensburg, Maryland (the “Bladensburg Cross” or “Peace Cross”) does not offend the First Amendment Establishment Clause.

Not In With the New Nor Out With the Old. The majority of the Court declined to define its determination as a new test for Establishment Clause challenges and similarly declined to explicitly override the much criticized three prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971) while nonetheless refusing to apply Lemon to its analysis in this case.

Multiple Opinions Published. Justice Alito wrote for the seven judges joining in the opinion in whole or in part or in the judgment only. Justices Thomas, Breyer. Kagan, Gorsuch and Kavanaugh wrote separately.  Justice Ginsburg, joined by Justice Sotomayor, sharply criticized the majority, offering that the maintenance of a Christian cross on public land ought to be presumptively offensive to the Establishment Clause.

Background and Procedural History.  The case is a challenge to the presence of a cross-shaped World War I memorial on public land brought by humanists who have alleged they are offended by the sight of the cross, its presence on public lands, and the expenditure of public funds to support the memorial.  The humanists argued that this presence offends the Establishment Clause. The Supreme Court majority has disagreed, declining to uphold the Fourth Circuit order directing the removal or remodeling of the memorial.

The case record discloses that the federal trial court in Maryland dismissed the case, finding that the monument satisfied the three prong test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971) . The court found a secular purposes of commemoration and current public safety in maintaining the cross on public land, and found that a reasonable observer would not form the impression that the cross impermissibly endorsed religion.  Moreover, the static presence of the cross did not excessively entangle the government, as no continued and repetitive government involvement in religion could be found.

The Fourth Circuit Court of Appeals took a contrary view, perceiving that an ordinary observer would indeed see the cross, with its public ownership and maintenance, as an endorsement of Christianity.  The Fourth Circuit focused on the inherent religious meaning of the cross and refused to allow history to serve as a legal determinant, seeing history as expanding rather than diminishing the harm caused by the presence of the cross.  

A dissent in the Fourth Circuit felt the panel overlooked history and failed to recognize that the Lemon test concerned “comprehensive, discriminating, and continuing state surveillance” of religion, which circumstances are absent in the placement and maintenance of a war memorial cross.

Following denial of rehearing en banc in the Fourth Circuit, petitions for certiorari were submitted and granted.

Meaning and Locus in Society.  Justice Alito noted that the Bladensburg Cross serves not just as a Christian symbol but also as an expression of the community’s grief and gratitude, and an affirmation of the values for which the remembered soldiers fought. Removal of the cross would not only work harm to the community but would evince a hostility toward religion which does not comport with the Establishment Clause.

Bladensburg Cross Held to Be in Accord with First Amendment Fundamentals.  The Religion Clauses contemplate the harmonious presence of all beliefs: the Peace Cross is consistent with that purpose.

The Christian cross’s centuries old religious origin is undeniable, but the cross symbol itself figures prominently in trademarks and medical symbols, and with particular presence in war and military memorials and decorations as a symbol of sacrifice.

Justice Alito observed that there was  community involvement in the inception of the Bladensburg Cross, that different faiths participated in  its dedication, that diverse soldiers are honored by the cross, and that the site has been used for multiple public events, particularly veterans’ events.

Lemon Sours. Exegesis of the Religion Clause’s prohibition on any “law respecting the Establishment of Religion” has been a long and difficult endeavor, most notably reflected in the oft-criticized test of Lemon v. Kurtzman,  403 U.S. 602 (1971). Courts and counsel decry the Lemon test, but no court has been so bold as to directly declare its dismissal. To Lemon has been added analysis of the question whether a “reasonable observer” would perceive a government action to endorse religion.

Lemon provides no sound rationale for analysis of cases like the present one for examining the public use of words or symbols with religious associations.  Justice Alito would set aside Lemon in favor of presuming constitutionality attaches to “longstanding monuments, symbols, and practices.”

Memories Fade While Uses Multiply. Discerning initial purposes may become more difficult with the passage of time. At the same time, the purposes for which such monuments are used may multiply and serve secular ends.  

Revisionist Erasure of History No Panacea.  To scrub away names and remove longstanding memorials would strike many as evincing hostility to religion, itself impermissible.

The Christian primacy of the cross symbol cannot preclude recognition of all other meanings.  The cross serves memory, community, and history: its removal after nearly a century would not be neutral and would not foster the values of respect and tolerance that under-gird the First Amendment’s Religion Clauses.

New Presumption of Constitutionality for Aged Items and Practices. The impossibility of fully discerning original purposes, the multiple meanings that evolve over time, the evolution of meanings over time, and the particular meanings to communities which will not see removal as neutral counsel in favor of presuming the constitutionality of longstanding monuments, symbols, and practices, Justice Alito wrote.

What Is Past Is Not Prologue. This new presumption, grounded in history and usage, does not pertain to the new erection or adoption of such practices, Judge Alito noted.  

The Cases Before the Court. The association of the cross with war memorials is a long standing practice, some of which the humanists find unobjectionable.  

Lemon’s ‘unifying’ theory has not proved to be as helpful as has conducting the examination of cases individually with a view toward history. This is particularly apt where current practice may reflect a long tradition of valuing religious tolerance, inclusivity, non-discrimination and the recognition of the role of religion in many lives.

The eradication of religious symbols may evince hostility toward religion notwithstanding that secular associations have added to the symbol’s patina.

In this light, the Bladensburg Cross does not offend the Establishment Clause.  The Bladensburg Cross had a special meaning at its inception in honoring World War I soldiers, then later great historic importance for the city, serving as a memorial to service and sacrifice.  Members of diverse races and faiths are included. Significantly, the symbols used have meaning for many of the individual honorees.

Justice Breyer wrote separately to reiterate his view that no “one size fits all” approach will suit Establishment Clause analyses.  

Justice Breyer would have the court consider cases in view of the principles of the Religion Clauses:  religious liberty, tolerance, avoidance of religious social conflict, and ensuring that church and state remain separate so that each may flourish.  Justice Breyer cautioned that he did not believe that the Court has now adopted any new test — one of ‘history and tradition — that would open the door to new religious memorials on public land.  In all its Establishment Clause analytic endeavors, Justice Breyer offered that the Court must always be at pains to understand the difference between a “real threat and a mere shadow.”

Justice Kavanaugh wrote separately to celebrate what he perceived to be a full, implicit, retrenchment from Lemon.  Several strands of Establishment Clause jurisprudence have not focused on Lemon but on important issues such as history and tradition with respect to religious symbols in public spaces; legislative accommodation for religious activity and exemptions from general laws; government benefits to religions; proscription of coercion in public school prayer; and according parity to religious and secular speech in public forums.  Lemon has held no sway in these cases. If a government act is not coercive, is grounded in tradition or history, treats all with equanimity, or permissibly accommodates or exempts on the basis of religion, then the Establishment Clause is not offended

Justice Kavanaugh suggests that those who remain concerned may want to use local processes to redress perceived wrongs.  So doing would be consistent with the great traditions of the United States. The Supreme Court is not the sole guardian of individual rights;  other governmental entities may provide safeguards greater than those in the federal constitution.

Justice Kagan wrote separately to offer that while Lemon is inapt in this case, Lemon’s focus on purpose and effects is critically important in evaluating government action. Justice Kagan would shy away from adopting an historical focus in Establishment Clause cases generally, and approach each case individually. That said, Justice Kagan applauded the Court’s emphasis on First Amendment values of pluralism, neutrality, and inclusion.

Justice Thomas wrote separately to concur only in the Court’s result and not in its reasoning, noting his fundamental concern with the incorporation of the Establishment Clause against the states.  The “law” mentioned in the Establishment Clause is legislation, making the clause inapplicable even if incorporation were to apply. A religious display has none of the coercive elements that the religious clauses were concerned with.  Justice Thomas would overrule Lemon in toto.

Justice Gorsuch wrote separately to opine that the rejection of “offended observer” standing ought to be articulated clearly.  Rejection of a status that could not withstand traditional Article III analysis was inherent in the court’s determination, however, and  “offended observer” standing has already been rejected by the Court.

Justice Gorsuch has noted that “offended observer” notions fail to comport with the requisites for Article III standing:  concrete, particular, actual, non-conjectural injury in fact; causation and redressability. Justice Gorsuch perceives “offended observer” standing to be the child of Lemon, which the Court clearly recognizes as a “misadventure.”  Lemon ought to meet its demise without leaving behind a noisome legacy like “offended observer” standing. The Court’s present enunciation of the importance of looking to history and tradition is a far more apt approach than that of the cumbersome Lemon test.  

The notion that history or the passage of time permits a presumption of constitutionality is problematic.  Better to apply the reasoning articulated in public prayer cases that create an artificial rule — a presumption — the application of which will prove difficult to define.

Justice Ginsburg, joined by Justice Sotomayor, has offered a dissenting view, criticizing the majority for permitting the ongoing installation of the “immense” cross as in derogation of the principles of government neutrality among faiths as well as between religion and non-religion.  

The preeminent symbol of Christianity cannot be transformed into a secular symbol by incorporation in a war memorial.  The Bladensburg Cross elevates Christianity over other faiths and preferences religion over non-religion. 

The installation of a religious symbol on public land ought to be seen as presumptively endorsing religion, contrary to the majority view  

Such a presumption may be overcome by indicia of neutrality. Museums might be suitable for displaying religious symbols.

The threat that all cemeteries would need refashioning to remove crosses lacks substance, Justice Ginsburg observes, because the presence of these symbols on individual graves may be seen as the protected speech of those buried there.  Neither is it necessary to hide all religious symbols from view. Such symbols may be relocated to private land, or public land may be transferred to private parties.

American Legion v. American Humanists, June 20, 2019 Supreme Court Opinion

An enchanting analysis may be found here:

Subscript Law Infographic of American Legion v. American Humanists Ass’n

And such perspective as may be found could be located here:

 

Supreme Court Vacates Oregon Court of Appeals Judgment and Directs Consideration of the Bakers’ and Customers’ Rights and Interests in Light of Last Term’s Decision in Masterpiece Cakeshop v. Colorado, 586 U.S. ____(2018).

Klein v. Oregon Bureau of Labor and Industries, No. 18-547. Order granting certiorari, vacating judgment below, and remanding for further proceedings entered June 17, 2019.


Petitioners, who owned and operated an Oregon bakery, refused to create a custom wedding cake for a same sex marriage, citing religious beliefs.  The State of Oregon found petitioners to have violated the state’s civil rights laws and imposed a $135,000 fine.  Petitioners submitted a petition for a writ of certiorari at the beginning of the Court’s term and just today, close to the term’s end, learned that the ruling against them has been reversed, and the state court has been directed to review the case anew in light of the Court’s determination last term in Masterpiece Cakeshop v. Colorado, 586 U.S.      (2018).

Petitioners asked the Supreme Court to address significant questions of constitutional law, each of which will remain without determination for now, and perhaps, for all time.  The Kleins asked the Court to determine that requiring them to produce a cake against their religious beliefs would violate the First Amendment Free Speech and Free Exercise clauses.  The Kleins wanted asked the court to determine whether to overturn Employment Division v. Smith, 494 U.S. 872 (1990), which requires compliance with neutral laws of general applicability even if the law infringes in part on rights.  They also wanted the court to determine how to properly evaluate cases in which conflicts among fundamental constitutional rights are presented.

The Court’s response to these questions must await another day, if ever they are reached at all.  Those familiar with the Masterpiece Cakeshop determination will recall that similarly substantial issues were presented there, but were likewise not addressed.  Instead, the Court concluded that the Colorado decision showed improper animus toward religion, and reversed the state’s decision in favor of the state civil rights commission.

Those eager to see the larger constitutional questions addressed may find the Supreme Court’s reliance on the conduct of investigations and other proceedings to be frustrating.  To do so might be short-sighted, however. The Court has sent a clear signal that bias among those charged with investigating bias cannot be countenanced, and where such bias can be shown, a decision infected with improper considerations cannot stand.

This is not a minor point.  All concerned in investigative, administrative, and judicial proceedings are on notice that equanimity is to be strictly observed.  In the absence of fair mindedness, victories may prove Pyrrhic indeed.

What is also interesting is that the Supreme Court, after much time has passed in determining whether or not to grant the petition for certiorari, has asked Oregon to look again at its proceedings.  This was not done in Masterpiece Cakeshop, supra.  No doubt all interested eyes will look to Oregon to observe what will next occur.

What follows is today’s Supreme Court Order, the parties’ submissions regarding certiorari, and a copy of the Masterpiece Cakeshop decision.


Order List (06_17_2019)

Klein Cert Petition

Respondent Oregon’s Opposiition 18-547

Klein Reply re. Certiorari

Masterpiece Cakeshop v. Colorado 584 U.S. 2018

The petitioners were supported by several amicus submissions, as follows:

Institute for Faith and Family Amicus Brief

Pacific Legal Foundation Amicus Brief

Southeastern Legal Foundation Amicus Brief

Foundation for Moral Law Amicus Brief

Center for Constitutional Jurisprudence Amicus Brief

Several States’ Amicus Brief

Thomas More Society Amicus Brief

Cato Institute Amicus Brief

Public Advocate of the United States and Others’ Amicus Brief

Billy Graham Evangelistic Association and Others’ Amicus Brief

 

 

 

 

 

 

 

Federal Court in Massachusetts Refuses Injunctive Relief and Refuses to Narrow Holding that First Amendment Protects Secretly Recording Officials Performing Official Acts in Public Spaces

Martin v. Gross, (D. Mass.) 2019.  Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).

The United States District Court in Massachusetts recently reiterated its late 2018 conclusion that a Massachusetts statute that criminalizes covert non-consensual audio or video recordings is unconstitutional as applied to public officials performing their duties in public spaces.  The court examined the competing important government interests in protecting privacy and in permitting information gathering and observed that the police and public officials have no reasonable expectation of privacy when publicly performing official acts.

In May, the court determined that it would be preferable to refrain from issuing injunctive relief and would let its December opinion stand as a declaratory judgment.  Moreover, the court declined to issue definition of “public space” that would narrow the concept and declined to adopt a list of places to be considered public spaces.  In that the permissibly of recordings is subject to reasonable time, place, and manner restrictions, the court sensed that opening the court’s doors to review by contempt proceedings would not be reasonable in that there can be no “one size fits all” injunction and that the availability of contempt proceedings would cause the court to engage in second-guessing the police function.

Martin v. Gross (D. Mass., 2019)

Martin v. Gross, 340 F.Supp.3d 87 (D. Mass., 2018)

Additional information may be found:

WGBH: Judge Rules People May Secretly Record Police in Public Spaces

Digital Media Law Project: Massachusetts Recording Law

 

 

 

 

 

 

 

He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.


Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.


Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

Florida Panhandler Gets By with a Little Help from the Court, While the Rest of Early May’s Plaintiffs Face a Mixed Bag of Results on First Amendment Claims

For those who have little time to read, what follows are snapshots of cases considering First Amendment claims from courts around the U.S. up until mid-May.

AdTrader, Inc., et al. v. Google LLC.  No.17-cv-07082-BLF (VKD) (N.D. Cal.).May 8, 2019. Google’s proposed email and telephonic communications to class members offering credits without mentioning that acceptance would diminish or moot class action claims or requesting release of class action claims cannot be enjoined.

AdTrader, Inc. v. Google LLC (N.D. Cal., 2019)

Maleeha Ahmad, et al. v. City of St. Louis, Missouri.Case No. 4:17 Cv 2455 CDP (E.D. Mo) May 7, 2019.  Class certification granted in action alleging violations of First, Fourth, and Fourteenth amendment rights relating to police use of force and mace without warning on protesters exercising expressive speech and recording police activity.

Ahmad v. City of St. Louis (E.D. Mo., 2019)

AirBnB v. City Of Boston. Civil No. 18-12358-LTS (D. Mass.) May 3, 2019. AirBnB’s challenge to a Boston Municipal ordinance imposing penalties on booking agents for short term leasing of unqualified properties fails. The challenge, brought pursuant to Section 230 of the Communications Decency Act of 1996, cannot succeed where collection of fees is an activity separable from the Section 230 protected activity of publishing third party rental listings.

AirBnB, Inc. v. City of Boston (D. Mass., 2019)

Benner v. St. Paul Public Schools, et al. (D. Minn.) May 3, 2019. Benner brought claims under 42 U.S.C. Section 1983 in connection with alleged adverse employment actions relating to his participation in activity debating and challenging school disciplinary policies and practices. The court recognized that the cumulative impact of investigations and transfer may be argued to be adverse employment action but denied Benner’s claims for retaliation for exercise of First Amendment rights. No municipal liability exists where no evidence shows delegation of authority was made to the schools.  Individual qualified immunity cannot be forfeited where the issue of freedom from reprimands and unsupported adverse action, including threats of termination, causing an employee to feel forced to resign, allegedly because of exercise of constitutionally protected First Amendment rights is recognized under established First Amendment law.

Benner v. St. Paul Pub. Sch. (D. Minn., 2019)

Champion  v. Take Two Interactive Software, Inc. No.  158429/2018, 2019 NY Slip Op. 29136 (Sup. Ct. N.Y. County) May 10, 2019. While video games may be seen as fiction subject to First Amendment protections, this does not automatically remove a game from the applicability of the state civil rights law, particularly where the video game players themselves provide elements of plot.  Petitioner was unable to establish misappropriation of his image and name where the game figure in issue bore no resemblance to him at all (only racial and gender status were the same) and where alleged identical nickname was not shown to be in such widespread public use as to establish identification with plaintiff.

Champion v. Take Two Interactive Software, Inc., 2019 NY Slip Op 29136 (N.Y. Sup. Ct., 2019)

Clark  v. The City Of Williamsburg, Kansas. No. 2:17-cv-02002-hlt  (D. Kan.) May 9, 2019. Ordinance classifying political signs as more appropriate for removal than others because their temporary nature presents structural and safety hazards is a content based regulation of speech that fails strict scrutiny review.  The unconstitutional ordinance may be severed to permit political signs to be regulated on a par with all other signage.

Clark v. City of Williamsburg (D. Kan., 2019)

Colorado v. Jose Luis Galvan, Sr. No. 16CA1988, 2019 COA 68 (Colo. App.) May 9, 2019. Epithets regarding girth and dispositions of sisters uttered during a drunken rumble on a party bus are not sufficient to constitute “fighting words”  — words which would provoke an ordinary person to outrage and invite immediate response — but provocateur’s invitation to “come and get it” invites violence. Use of words not protected by the constitution warranted giving provocation instruction.  Jury determination of criminal assault affirmed.

People v. Galvan, 2019 COA 68 (Colo. App., 2019)

Commonwealth v. David Melo. No. 18-P-77 (Mass. App.) May 8, 2019 (slip opinion).“Expressive” nature of dancing does not confer First Amendment protection shielding defendant from prosecution for lewd and lascivious conduct.

Commonwealth v. Melo (Mass. App., 2019)

Dallas Morning News, Inc. and Kevin Krause v. Lewis Hall and Richard Hall, Individually and on behalf of RXpress Pharmacies and XPress Compounding. No. 17-0637 (Tex.) May 10, 2019.  Warrant directed to individuals but encompassing corporate matters is not evidence supporting a claim of falsity in Dallas Morning News‘ publication of a statement concerning investigation of compounding pharmacy activity. Although it is recognized that objectively true statements may be strung together to suggest criminality, and therefore be defamatory, that is not true where the reporting does not suggest criminality. Where statements in a published account of judicial and official proceedings are substantially true, news reporters enjoy a privilege protecting against claims of defamation.  

Dallas Morning News, Inc. v. Hall (Tex., 2019)

Ex Parte Rodolfo Ortega Nunez. No. 11-18-00156-CR (Tex.App.) May 9, 2019.  Petition for habeas corpus denied because privacy is a compelling state interest supporting laws against surreptitious video recording.  Prohibition on recording is content, not behaviorally, based and therefore is not outside First Amendment protections. Statutes criminalizing recording in bathrooms or changing areas is succinctly narrowly tailored to support the compelling state interest in privacy.  

Ex parte Nunez (Tex. App., 2019)

FilmOn.com Inc. v. DoubleVerify Inc. S244157 (Cal.) May 6, 2019.  Court of Appeals determination that context is irrelevant is reversed.  Context may be considered in determining whether a statement has been made in service of free speech in connection with a public issue.  Utilization reports are too attenuated from the public interest to warrant anti-SLAPP protection. To be protected, a statement must not only concern a matter of public interest but it must contribute to public debate.  As it is possible for commercial speech to contribute to the public interest, that status is not dispositive. Here, two for-profit entities argue about a private report which discusses others’ business practices This context permits the conclusion that the statements in issue were not made in connection free speech as a matter of public interest.  

FilmOn.com Inc. v. DoubleVerify Inc. (Cal., 2019)

In Re Alize R. v. The People, No. G055682 (Cal. App. 4th Dist.) May 2, 2019.  Juvenile adjudication. Student’s remark “Ima shank you” to teacher sufficient to support conviction where words might be seen as reasonably constituting a true threat even if not all individuals would perceive a threat.

People v. Alize R. (In re Alize R.) (Cal. App., 2019)

J.A.C. v M.J.C. No. J-s13027-19, No. 1652 WDA 2018 (Sup. Ct. Pa.) May 8, 2019. Non-precedential. Earlier order invalidated because limiting mother’s discussion of father’s inappropriate communications with half- sister unduly limits mother’s ability to protect child. Gag order limitation is not in the best interest of the child where the child is naive, does not recognize inappropriate sexual conduct, and father engaged in such conduct in front of child. As court perceived it was able to resolve issue without reaching constitutional question, court declined to address mother’s argument that speech restrictions violated her First Amendment rights.

J.A.C. v. M.J.C. (Pa. Super. Ct., 2019)

Kardasz, et al. v. Spranger, et al.  No. 17-cv-10937 (E.D. Mich.) May 6, 2019. Claim asserting ethics violation need not be on record before First Amendment retaliation claim may be found to exist.  Proximity in time between protected activity and termination may suffice to establish causation. Employees’ submission of ethics claims not within official duties precluding action.

Kardasz v. Spranger (E.D. Mich., 2019)

Nelson, et al. Individually and as Members of The Prayer Tabernacle Church of Faith, Inc. v. Brewer, et al. and The New Prayer Tabernacle Church.  2019 Ill. App. (1st) 173143. May 10, 2019. First Amendment precludes civil court jurisdiction of ecclesial matters.  No error occurred here, however, where court applied neutral principles to determine whether church complied with its own state law governing documents.

Nelson v. Brewer, 2019 IL App (1st) 173143 (Ill. App., 2019)

Omicron Chapter of Kappa Alpha Theta Sorority, et al. v. University Of Southern California.  No. B292907; B294574. (Cal. App. 5th Div.) May 1, 2019.  Associational standing is proper where association aptly represents interests of members but association may not assert interests of unidentified non-members or prospective members said to be inhibited by university’s deferred recruitment program.  The university policy would prohibit recruitment until students had a chance to acclimate to university life. The fraternal association must be offered an opportunity to show: 1) whether the university’s deferred recruitment policy violates law prohibiting punishment of students because of speech, or 2) whether under a limited public forum analysis the university policy unduly burdens fraternities’ speech interests.

Omicron Chapter of Kappa Alpha Theta Sorority v. Univ. of S. Cal. (Cal. App., 2019)

P&L Development LLC v. .Bionpharma Inc.and Bionpharma Healthcare LLC. No. 1:17cv1154 (M.D. N.C.) May 10, 2019.  Type of court submission is not outcome determinative in addressing right of access questions, but exceptions to access must be justified with particularity.  

P & L Dev. LLC v. Bionpharma Inc. (M.D. N.C., 2019)

Robert W. Mauthe, M.D., P.C. Individually and as Class Representative v. MCMC LLC. No. 18-1901 (E.D. Pa.) May 13, 2019.  Scope of consent reflected in a consumer agreement to receive fax communications and applicability of opt outs as relating to privacy issue in class action under the Telephone Consumer Protection Act, as amended by the Junk Fax Act (TCPA), is a  question of fact precluding summary judgement.

Robert W. Mauthe, M.D., P.C. v. MCMC LLC (E.D. Pa., 2019)

Roman Catholic Archdiocese of Kansas City In Kansas and St. Rose Philippine Duchesne Catholic Church v. City Of Mission Woods. No. 17-2186-DDC (D. Kan.) May 10, 2019.  No principle requires that a party must succeed on each of its claims to be a prevailing party on the merits for injunctive purposes.  Court anticipates further elucidation of the meaning of equal treatment in RLUIPA cases, but for present purposes evidence showing church and other entities’ presented similar land use requests was sufficient to support determination. Judgment and permanent injunction affirmed.

Roman Catholic Archdiocese of Kan. City v. City of Mission Woods (D. Kan., 2019)

Touchstream Technologies, Inc. v. Vizbee, Inc. No. 17-cv-6247 (PGG) (KNF) (S.D.N.Y.) May 10, 2019. Conclusory assertions are not sufficiently proprietary to warrant exception to presumption of access to courts and pleadings.

Touchstream Techs., Inc. v. Vizbee, Inc. (S.D. N.Y., 2019)

United States of America, v. Carlos Bayon. No. 18-cr-163-fpg-jjm (W.D.N.Y.) May 9, 2019. The district court affirms a magistrate’s determination that the question of whether defendant’s telephone calls to public officials were unprotected “true threats” is one of fact for trial, not one of law for adjudication by ruling on a motion to dismiss.

United States v. Bayon (W.D. N.Y., 2019)

Vigue v. David B. Shoar, Sheriff of St. Johns County And Gene Spaulding, Director of the Florida Highway Patrol. Case No. 3:19-cv-186-j-32jbt (M.D. Fla.) May 6, 2019. Florida district court has granted injunctive relief forbidding enforcement of public charitable solicitation law to individual soliciting funds while bearing a sign offering blessings. Where no interference with the public is known, public safety may be adequately addressed by other means. Deprivations of First Amendment rights are presumably irrevocable, warranting injunctive relief pending a full hearing.  The court notes that the 11th Circuit has found similar statutes defective.

Vigue v. Shoar (M.D. Fla., 2019)

 

 

Disconcerted by Denial of Certiorari in Prison Speech Rights Case, Three Justices Dissent

Dahne v. Richey, No. 18-761, 587 U.S. ____  (Decided May 13, 2019).


The Supreme Court has denied a prison official’s petition for certiorari from a Ninth Circuit decision determination that a District Court erred in part in addressing a prisoner’s claim for violation of speech and petition rights.  

The Ninth Circuit concluded that disrespectful language in an inmate’s petition for redress of a grievance poses no security risk. Without a legitimate penological reason for doing so, the appellate panel held, imposing a content based limitation of a prisoner’s expression is unconstitutional.  While a mere request to rewrite a grievance would not violate the constitution, wholesale rejection of a grievance because of content is problematic. Judgement of the district court for the inmate on the speech claim was upheld.

However, the Ninth Circuit found that the district court should have ruled in favor of the prison official on summary judgment in petitioner’s claim that his grievance was dismissed out of hand in retaliation for exercise of expressive rights.  The law was not and is not settled that refusal to process a grievance petition, as occurred here, is a clear violation of constitutional rights. As such, the Ninth Circuit found, as a matter of law the prison official’s qualified immunity ought not be disturbed.   

Three justices of the Supreme Court appear to have been vexed by the denial of certiorari.  

Justice Alito, writing for himself, Justice Thomas and Justice Kavanaugh , observed that the case may have more to it than was shown in the submission before the court and that granting certiorari might have afforded the Court an opportunity to settle that which some perceive to be unsettled.  

Most troubling to the dissenters if the suggestion that a prisoner’s speech rights, which may be curtailed, may nonetheless encompass veiled threats to kill or injure a guard. This is particularly so where a prisoner had killed a prison official within memory of the grievance that precipitated this case.  

Justice Alito offered the assessment that the Ninth Circuit has “defied both our precedents and common sense” in its conceptualization of the the breadth of “expressive speech” that was perceived to be constitutionally protected. Justice Alito observed that some circuits have upheld prohibitions on coarse or profane language in prisoner’s grievances. Even if such language were found to be protected, however, it would not logically follow that such protections would extend to veiled threats.

18-761 Dahne v. Richey (05_13_2019)

Richey v. Dahne, No. 17-35032, 9th Cir. April 25, 2018. Unpublished Opinion.

1🖼️ = 1K 🕮? Courts Adapt to the Language of Emoticons

Although the yellow smiley face (  😀 ) has had a decades long presence in popular culture, instant communication technologies have precipitated a explosion in the use of multiple pictorial symbols, collectively called emoticons or emojis.  Some decry use of emojis as a perceived regression to hieroglyph, signifying burgeoning illiteracy. Others applaud the utility of the often playful symbols as shorthand expressions of feelings as well as words.

All would be well (even if controversial) but for the tendency of the human animal toward misunderstanding in any form of communication.  This presents courts with novel opportunities to consider the admissibility and meaning of the discourse of emoticons.

While the utility of a symbol is grounded in its ability to prompt instant recognition, symbols themselves are not entirely uniform and may differ in appearance depending on the platform employing the emoticon’s underlying code.  Cosmetic differences are but one facet of the introduction of symbolic speech in the judicial lexicon. Emoticons, like words, have secondary meanings and nuance. Given that multiple meanings may attach to a single, superficially innocuous icon, cavalier use may be incautious.  

Law Professor Eric Goldman of Santa Clara Law School, proprietor of the Technology & Marketing Law Blog, has tracked the presence of emoticons in judicial records, observing remarkable growth.  

A recent overview of case law from the beginning of 2019 to the present provides some indication that the courts are not shrinking from the task of recognizing and interpreting emoji.  While in one case a criminal court obtained the testimony of detectives expert in pandering, pimping, and prostitution to interpret emojis said to represent an invitation to participation in those activities, most of the cases mention emojis as if they were commonplace, or omit them and note that omission as with any other editorial intervention.

While this may be some indication of a willing judicial adoption of this emerging form of communication, in light of ongoing and often charged controversies over the use and meaning of language, it is unlikely that issues attending the emergence and widespread use of emoticons have as yet been explored in full.

What follows gathers from online resources, scholarship, journalism and  case law to illustrate the emerging discourse concerning emoticons. A bit of leaven is included at the end.

References

Emojopedia   A dictionary of emoticons with articles about the development, usage and meaning of emoticons, called emojiology (after etymology),  and current news.

Legal Cheek:  Twelve Famous Cases in Emoticons

Netlingo   A dictionary of internet terms and symbols, including news and usage data. Some entries merit the acronym NSFW (not safe for work).

The Smiley Company  History and development of an array of smileys, from a global licensing  company.

The Smiley Dictionary  An apparent user created contribution to the resources of Computer Science House, a special interest group of Rochester Institute of Technology.

Twitter:  @emoticoncaselaw

Wikipedia:  List of Emoticons    Provides an overview of types of emoticons and the underlying coding languages in use in producing them.  

Scholarship

Goldman, Eric.  Emojis and the Law. 93 Wash. L. Rev. 1227 (2018)

Goldman, Emojis and the Law Worksheet, 2019.

Kirley and McMahan:  The Emoji Factor: Humanizing the Emerging Law of Digital Speech (2018 SSRN Advance Copy of Tennessee Law Review)

Media Discussion

2015 01 29 New York Times:  At Silk Road Trial, Lawyers Fight to Include Evidence they Call Vital: Emoji.

2015 12 07 ABC (Australia)  Emoji and The Law: Threatening Violence

2016 03 18 Wall Street Journal Law Blog:  The Supreme Court Emoji Challenge (Paywall)

2016 10 16 Yahoo Finance:  Your Silly Emojis are Going to Court

2018 01 30 9to5Mac: Court Ruled Emoji Constituted Rental Contract

2018 05 03 Lawyers Mutual Byte of Prevention Blog:  How an Emoji Can Land You in Court

2018 06 27 Wired:  Academics Gathered to Share Emoji Research, and it was Hot

2019 01 31 Technology and Marketing Blog:  Emoji Law 2018 Year in Review

2019 02 07 Recorder:  Getting Ready for the Emoji Law Revolution

2019 02 11 Technology and Marketing Blog:  What’s New in Emoji Law? An Interview

2019 02 18 The Verge:  Emojis are Showing Up in Court Cases Exponentially, and Courts are Not Prepared

2019 02 19 Legal Cheek:  Why Courts Need to Become Fluent in Emoji    

2019 02 19 9to5Mac: More and More Cases Require Courts to Interpret the Meaning of Emoji  

2019 02 19 Gizmodo:  How Would You Like Having Your Emoji Messages Read Out Loud in Court?

2019 02 19 Mystal, Above The Law:  Is Emoji Law Going to be a Thing2019 02 19 Geek.com:  Number of Emoji References in U.S. Court Cases Growing Exponentially

2019 02 19 Futurism:  The Byte: Judges Are Struggling to Interpret Emoji in Court Cases

2019 02 20 EDiscovery Daily Blog:  Emoji are Showing Up in Court Cases More and More

2019 02 22 Washington Post:  Your Honor It Is an Eggplant: Lawyers Call for Guidance on Interpreting Emoji

2019 02 24 The Tartan:  Courts are Unprepared for the Appearance of Emojis in Cases

2019 02 25 CNBC (Mystal) Emojis Can Now Be Used as Court Evidence:  Here’s What to Expect

Recent Case Law

Blount v. State, NO. 14-17-00988-CR (Tex. App.).  April 22, 2019.       Text emojis noted in brackets without description, in the same fashion as deleted expletives.

Cannon v. Southern University Board of Supervisors, No. 17-527 – SDD – RLB (M.D. La. April 12, 2019)  Use of emoji in response to request for admissions as well as threatening language part of evidence indicating sanctions appropriate.

DeLucia v. Castillo, CASE NO. 3:19-CV-7 (CDL) (D. Ga.) April 23, 2019.  Emojis included in evidence of communications with child in abduction case.

Commonwealth of Pennsylvania v. Hackenberger, J-S72014-18 No. 120 MDA 2018 (Superior Court) April 16, 2019.   Unpublished opinion.  Text messages using emoticons relevant in child sexual exploitation case.

Commonwealth v. Hunt, 18-P-106 (Mass. App.) February 22, 2019.  (Unprecedential.) Discussion of evidence suggesting witness bias in domestic assault case includes texts, including emojis.

Doe v. University of Kentucky, 5:17-cv-00345-JMH (E.D. Ky.) January 18, 2019.  Post-encounter text, including emoji, part of evidence in case alleging university negligence in investigation and presentation of Title IX complaint.

Gonzalez v. State, 3-CRNo. 08-14-0029  (Tex. App. 2019). April 9, 2019.  Court omits emojis and editorial remarks concerning language where the parties have placed no emphasis on the emojis.  

People v. Jamerson  A153218 (Cal. App. 2019).  February 6, 2019. (Unpublished.) Detectives offer expert testimony concerning the meaning of crown and other emojis in pimping and pandering case.

State v. Bey,  2019 Ohio 423 (2019)  Gun emojis posted on Facebook page part of evidence in criminal trial.

State v. Polchert, Appeal No. 2018AP849-CR  (Wis. App., 2019) March 26, 2019.  Emoji showing ‘broken heart’ included in evidence of online exchanges in case charging use of computer to commit sex crime.

State v. Berrios, AC 40043 (Conn. App. 2019).  February 5, 2019. Emojis noted as redacted in transcript of text exchange in witness intimidation case.

State v. Foster, No. E2018-01205-CCA-R3-CD (Tenn. Crim. App.) April 10, 2019.  Emojis noted in transcripts of exchanges in case of aggravated rape of a minor.

State v. Potter,  No. E2015-02261-CCA-R3-CD (Tenn. Crim. App. 2019) February 5, 2019. Smiling emoji noted and redacted in transcript of email exchange in first degree murder case.

…and some comedic observations (NSFW):

2012, Season 37:  Saturday Night Live:  Embarrassing Text Message Evidence Proves a Man’s Innocence

Thou Shalt Not Discriminate: It Means What It Says, According to Justice Kavanaugh

Morris County Board of Freeholders v. Freedom from Religion Foundation, No. 18-364 and Presbyterian Church of Morristown v. Freedom from Religion Foundation, No. 18-365. Petition for Certiorari denied March 4, 2019.


The second of two commentaries concurring in the Supreme Court’s denial of petitions for certiorari in cases raising First Amendment issues came recently in Morris County Board of Chosen Freeholders, et al. v. Freedom from Religion Foundation , et al, No. 18-364 and The Presbyterian Church in Morristown v. freedom From Religion Foundation, et al., No. 18-365 (March 4, 2019).

Justice Kavanaugh, joined by Justices Gorsuch and Alito, predict that the Court must at some time decide whether governments may deny historic preservation funding to religious entities, but that determination must await another case, given the factual record before the Court and the relative recency of Trinity Lutheran Church of Columbia v. Connor, 582 U.S.     (2018), subsequent to which a robust body of cases applying its principles ought to be permitted to develop.

Although deferring further determination concerning discrimination against religion in the provision of public funds in the Morris County case, the three justices were plain in offering the straightforward and unequivocal view that governmental discrimination against religion is constitutionally prohibited by the Free Exercise Clause the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Unlike potentially difficult cases in which the government as speaker raises Establishment Clause issues or in which private entities seek exemptions on religious grounds, the Morris County case is relatively easy, Justice Kavanaugh noted.  It has long been established — and indeed is a ‘bedrock principle’ of constitutional law — that the government may not affirmatively or negatively discriminate against religious or specific beliefs.

Having articulated their position on religion’s legal parity with secular individuals, entities and institutions, this concurrence, in denying review, removes from doubt whether a retreat from Trinity Lutheran is a possibility and proffers guidance to courts of appeals and trial courts concerning the development of post-Trinity Lutheran case law.  

Morris County v. Freedom from Religion Foundation, 18-364. March 4, 2019