Got Facts? U.S. District Court in Montana Holds State Restriction on Labeling Impinges on Milk Company’s Commercial Speech Rights

CORE-MARK INTERNATIONAL, INC. v. The Montana Board of Livestock. No. CV 15-05-H-SEH  (D. Mont.) November 1, 2018.

The State of Montana requires that milk be labelled to reflect the date 12 days after Pasteurization.   This “sell-by” date bears a reasonable relationship to promoting public health. The state’s prohibition of any dates or information relating to the quality of the milk — the “single date” rule — cannot be supported by speculation that more information, or the use of more than one date in connection with labeling information, would cause the public to become confused.  A hypothetical harm is not sufficient to support an intrusion on the milk company’s First Amendment interests.

Core-Mark Int’l, Inc. v. Mont. Bd. of Livestock (D. Mont., 2018)

Candidate Excluded from Educational Television Election Debate Cannot Establish Violation of First Amendment Rights

LIBERTARIAN NATIONAL COMMITTEE, et al. v.. TERRY HOLIDAY, et al., No. 17-6216 (6th Cir.) November 2, 2018.

A Kentucky educational television station decided that its practice of permitting any candidate for public office to participate in its broadcast debates had produced some undesirable results as non-serious individuals or individuals seeking only a television appearance failed to contribute to the debates substantively.  The station decided that it would limit participants in a debate among candidates for the U.S. Senate to those meeting certain qualifications that would demonstrate at least a minimal chance of winning the vote of one in 10 Kentuckians. . Candidate Patterson failed to meet those criteria.

As Supreme Court precedent has established that educational television stations may, consistently with their obligations to act in the public interest, apply uniform non-viewpoint discriminatory criteria to speakers without violating the First Amendment, and as no evidence of discrimination against Patterson’s viewpoints had been adduced, the United States Court of Appeals for the Sixth Circuit upheld the trial court’s determination that no basis could be found upon which to abrogate the television station officials’ qualified immunity.

Libertarian Nat’l Comm., Inc. v. Holiday (6th Cir., 2018)

Getting to Know John Doe: Federal District Court in Connecticut Permits Pre-Discovery Conference Subpoena to Internet Service Provider to Obtain Disclosure of Alleged Infringer’s Name and Address

Malibu Media, LLC v. Doe, No. 18-CV-1510 (D. Conn.) November 2, 2018.

The United States District Court in Connecticut has granted Malibu Media’s request to subpoena an Internet Service Provider (ISP) to obtain disclosure of the name of an individual alleged to have infringed on Malibu Media’s copyright to films by downloading and distributing the films without authorization. Investigation identified use of an ISP address and a distribution program directly correlated in time and date to the infringing activity.  A subpoena was sought to compel the ISP provider to disclose the identity of the ISP address holder, without which Malibu Media would be without a means to protect its intellectual property interests.

The court noted that an alleged infringer cannot interpose the First Amendment right to anonymous speech to defeat the copyright owner’s legitimate interest in protecting his property.  Neither can an internet user complain of Fourth Amendment violations where he has voluntarily provided information to an ISP. Nonetheless, the court observed, as an infringer may find settlement preferable to public disclosure of alleged involvement in unlawful distribution of copyrighted pornography, the court cautioned Malibu Media that any information about the alleged infringer it might obtain could be used only for purposes of the case before the court.  Moreover, the subpoenaed ISP must in turn notify its subscriber of the subpoena, who would be permitted to move to quash the subpoena or to request to litigate the subpoena anonymously.

Malibu Media, LLC v. Doe (D. Conn., 2018)

Publicity Without Showing of Prejudice Cannot Support Sweeping Gag Order, Fourth Circuit Concludes

In re MURPHY-BROWN, LLC, No. 18-1762 (4th Cir.) (October 29, 2018).

Where multiple cases challenging hog farming practices in North Carolina generated considerable public controversy, a federal district court, fearing jury pool contamination, issued a gag order binding the parties, counsel, and “potential” witnesses from commenting on the cases, then promptly withdrew the order when mandamus review in the Fourth Circuit was sought.  The infirmities of the order could not be cured by its withdrawal, the federal appellate court found, as a circular process of order entry, appeal, and retraction would make the issues capable of repetition, yet evading review.

Judicial gag orders are particularly disfavored in the law. Notwithstanding that courts may act to ensure preservation of fair trial rights in civil cases, gag orders by definition involve both prior restraints and content based restrictions.  The compelling state interest that must be found to support limitations on First Amendment speech freedoms cannot be premised on an increase in publicity, particularly where publicity itself does not necessitate a finding of prejudice. Speech restraints must operate to cure and not to create the ills invited by curtailing discussion.  

Even if the gag order in issue could be seen as advancing fair trial rights, it cannot be shown to have been the least restrictive means of so doing.  Courts have available multiple measures short of impeding speech to guard against jury prejudice: juror pools may be expanded, venues changed, voir dire enhanced, instructions limited, or sequestration imposed.  No findings were made supporting the blanket speech restrictions imposed, which themselves were fatally defective for vagueness. The breadth of reach of the order to any potential witnesses as well as the guesswork involved in determining what might be permissible general factual commentary rather than influential speech compel the conclusion that the order fails to withstand a vagueness challenge.  

In re Murphy-Brown, LLC (4th Cir., 2018)


Location, Location, Location! Federal Appellate Court Holds “Forum Analysis” Permits WMATA to Categorically Exclude Religious Messages on Buses Provided It Does So Without Viewpoint Discrimination

Archdiocese of Washington v. WMATA, et al., No. 17-7171 (July 31, 2018) Briefing for petition for rehearing en banc concluded as of September 28, 2018.

The Archdiocese of Washington and the Washington Metropolitan Area Transit Authority (WMATA) are in a pitched battle over WMATA’s rejection for advertisement on buses the Archdiocese’s perennial “Find the Perfect Gift” Christmas message.   

WMATA has successfully argued in both the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia Circuit that buses are non-public spaces. Under ‘forum analysis’ principles which permit distinctions in regulatory intrusions depending on whether a space is a traditional public forum, a forum opened for a particular purpose, or, as here, a non-public forum.  Non-public forum classification permits the government to categorically exclude subject matters such as religion. Speech in non-public forums may be subject to government regulation provided that the government does not engage in viewpoint discrimination.  

The Archdiocese insists that categorical exclusion of religion as a subject matter cannot be other than in violation of the First Amendment.  

Rehearing en banc has been sought and briefing concerning rehearing en banc has concluded.  Whether or not rehearing en banc will be granted,  it is likely that Supreme Court review will be sought:  this case ties together all of the rough edges of current “forum analysis” in which entire subject matters may be excluded from public discussion provided that preemptive exclusion does not involve viewpoint discrimination.  It is the “conflation” of the two concepts “without principled limits” that the appellate panel found objectionable in the Archdiocese’s arguments.

ADW v. WMATA 17-7171 2018 07 31 (D.C. Cir.)

Losing Rights While Righting Wrongs: Cosby Accuser Challenges Insulation from Liability in Defamation Based on “Limited Public Figure” Doctrine.

Katherine McKee v. William H. Cosby, No. 17-1542 (S. Ct.). Petition for Certiorari referred to conference scheduled for October 26, 2018.

The law of defamation sometimes prefers to encourage lively public debate over the right of one participating in such debate to recover in defamation. Thus the person who steps into the public square may find himself or herself considered to be a “limited purpose public figure” who must show actual malice to recover for any statement alleged to be defamatory.  

This is all very reasonable if one is of the mind that inviting controversy, perhaps simply by joining in, means accepting the accompanying consequences, which may occasion as many brickbats as it does bouquets.

But wait!  Is that really so reasonable?  The limelight may find a plaintiff rather than it being sought.  An individual may wish only to speak in rebuttal to a statement.

Perhaps matters are not at all as simple as the “limited purpose public figure” classification suggests.  And with the internet being a “forever” forum, being insusceptible of being scraped clean no matter one’s diligence, having it uphill in cleaning up reputational injuries may seem doubly burdensome if it is more difficult than might be expected to demonstrate actionable defamation.

Tomorrow the Supreme Court will consider the petition for certiorari of Katherine McKee, who joined in public discussion of the sexual exploits of comedian and actor Bill Cosby.

Following statements about Cosby, Cosby’s counsel wrote to a publisher questioning McKee’s veracity and chastity.  Although the correspondence was labelled ‘confidential,’ McKee avers that Cosby counsel leaked its own letter to the media.  

Neither the federal trial court in Massachusetts nor the United States Court of Appeals for the First Circuit found any statements made by Cosby’s counsel to be actionable. Simply by acknowledging her status as a Cosby victim, McKee avers, she became a “limited purpose public figure” whose ability to counter statements about her was diminished by the enhanced standard of proof required of such persons.  McKee argues that the federal courts of appeals are in conflict concerning the “limited purpose public figure” rationale and urges the Supreme Court to review its boundaries.

Cosby counters that McKee already was a public figure at the time she entered the arena to add to allegations against Cosby, as she had been a figure in the entertainment industry for decades, and used her status as such to gain access to the media.  McKee’s longstanding involvement in entertainment only underscores the analysis of her status by the lower courts. She was involved in much more than identifying herself as a victim, in Cosby’s view. Moreover, the courts were correct in concluding that by accompanying allegedly defamatory statements with non-defamatory facts, defendant insulated himself from liability.  Finally, no conflict exists among the federal circuit courts of appeals that demands the Supreme Court’s attention at this time.

Whether McKee succeeds in obtaining review will depend on the law, of course, but the grant or denial of certiorari may also be colored by the intensity of public controversy concerning sexual misconduct.  While the Court need not concern itself with the vicissitudes of public opinion, neither does it need to turn a blind eye to the likelihood that sexual assault victims will complain of further victimization because of speaking out, claiming that the forfeiture of rights to seek redress in defamation is too high a price to pay for speaking out on a  matter of public interest.  

It is worth noting that recently Cosby was denied Supreme Court review where a California court concluded that counsel’s duty of zealous advocacy does not include defaming an accuser.

Tomorrow will tell.

McKee Documents Filed with Supreme Court

20180501102009877_Petition for Writ of Certiorari

20180501102033549_Appendix to Petition for Writ of Certiorari

20180730132824698_2018.07.30 Brief in Opposition

20180806165750352_Reply Brief for Petitioner

Dickinson Document and Order Denying Certiorari

20180712161848083_18-__PetitionForAWritOfCertiorari Dickinson

2018 10 01 Order Denying Certioriari Dickinson

Withering the Stormy: Daniels Appeals to Ninth Circuit from Conclusion that Dismissive Trump Tweet Was Constitutionally Protected “Rhetorical Hyperbole”

Stephanie Clifford v. Donald J. Trump, No. 2:18-cv-06893-SJO-FFM (C.D. Cal. October 15, 2018); Notice of Appeal to Ninth Circuit filed October 15, 2018; Appellate Scheduling Order, Case No. 18-56351 issued October 16, 2018.

Entertainer Stormy Daniels (Stephanie Clifford) stirred scandal through allegations about an encounter with now President Trump nearly fifteen years ago.  When a Trump Twitter retort accused the entertainer of a “con,” Daniels sued for defamation.

A federal district court in Los Angeles reviewed defendant Trump’s motion to dismiss under the Texas anti-SLAPP statute, a procedural and substantive mechanism for short-cutting the time to disposition for cases grounded in defamation allegedly arising from participating in speech related to matters of public interest.  

Trump prevailed, as the court found that the Tweet was “rhetorical hyperbole,” a form of opinion which is protected speech under the First Amendment.  To hold otherwise, the court observed, would be to silence the President in the face of any manner of allegation.

If dismissal were not enough, the court ordered Daniels to pay Trump’s attorneys’ fees.

Daniels has noted her appeal in the United States Court of Appeals for the Ninth Circuit. Appellate briefing will conclude in late winter of 2019.

Daniels v. Trump: Order on Special Motion to Dismiss (C.D. Cal. October 15, 2018)

Daniels v. Trump: Notice of Appeal

Daniels v. Trump: Ninth Circuit Briefing Schedule

Every Step You Take, Every Move You Make: Probationer Challenges Massachusetts’ Universal GPS Monitoring Mandate

Commonwealth v. Feliz, SJC No. 12545. Oral Argument September 5, 2018.

What law is in issue? In Massachusetts, any person convicted of certain enumerated sexual offenses must, as a condition of probation, wear a GPS monitor at all times.  Mass. Gen. Laws c. 265, § 47.

Why was this appeal filed?  In 2016, appellant Feliz pled guilty to possession and dissemination of child pornography.  Feliz challenges the statute mandating GPS monitoring as an ongoing unlawful search in violation of the Fourth Amendment of the U.S. Constitution and Article XIV of the Constitution of the Commonwealth of Massachusetts.  Feliz further submits that the statute serves no rehabilitative function. The inflexible mandate permits no individualized assessment of an offender’s risk. Additionally, the GPS equipment fails repeatedly, threatening his livelihood and inducing chronic anxiety.

What does Feliz seek? On appeal, Feliz objects not to the use of GPS but to its universal use, and seeks a ruling that the mandatory requirement is unsupportable where applied without exception or discretion.  Feliz wants courts to be able to waive the mandatory use of GPS for non-contact offenses where a judge determines that the risk of re-offense does not indicate GPS is necessary.

What was said at trial? Evidence was adduced at trial from experts and a probation officer that GPS monitors had no bearing on recidivism.  The trial judge, however, as of the view that the GPS monitoring itself was the cause of any reduction in recidivism.

Is GPS Monitoring a problem?  Feliz argues that because the attachment of a device to the body is a search, the state must show the search to be lawful, which requires weighing the intrusion against the government interests it promotes. The Supreme Court has recognized that GPS monitoring may be evaluated under the totality of the circumstances of its use.  Massachusetts’ constitution preclude the use of blanket threats of warrantless searches in probation. If the threat of blanket searches is not permissible, it follows that the actuality of blanket searches cannot survive constitutional scrutiny.

Diminished privacy is not extinguished privacy.  Universal GPS monitoring without considering individual needs cannot be said to contribute to rehabilitation, Feliz asserts.  Even if privacy interests are reduced on probation, they are not extinguished, even in the face of registration requirements. The GPS systems compromises different interests: the bodily integrity and location information of a person.  

The Social Freight of the Symbol.  Multiple failures of GPS devices not only impair the integrity of the wearer’s person, they also function as modern scarlet letters, enhancing stigma.

The Durable Information Warehouse.  The severity of the state’s creation of a repository of location information, extending to the home, cannot be sidestepped by asserting that the actual use of the information will not be as broad.  Feliz asserts that this is information gathering is particularly where the potential to access the location information endures, permitting the state to “time travel” through records, a circumstance raising the concerns of the Supreme Court in Carpenter v. United States, No. 16-402 (June 22, 2018).

Warrants Issue Without Judicial Review.  Feliz observes that the warrants that may issue where GPS monitoring indicates require no judicial intervention.  They may be issued on a probation officer’s say so, further eroding any remaining protections of a probationer’s interests.

A Measure Must be as Reasonable as it is Rational. That a measure may be rational does not make it reasonable, particularly as due process and search analyses are not the same.  Rational basis review proceeds from presumptive constitutionality, where warrantless searches proceed from presumptive unconstitutionality. The state must prove the need for such searches.  Judicial evaluation of searches need not defer to the legislature.

Of Course Children Must be Protected:  Will Universal GPS Montoring Accomplish this Goal? While the protection of children is a state interest of the highest order, the state has no evidence indicating that universal monitoring of non-contact offenders, without individual assessments of risk, serves that end.  Feliz’ monitor is incapable of triggering an alert if Feliz enters an area where an offense might occur. Moreover, special needs, such as avoiding drunk driving fatalities, that might justify heightened intrusiveness, are not present.

The State Has A Different Perspective

The State’s Interest in Inhibiting Crime.  The Commonwealth of Massachusetts submits that sex offenders have limited privacy interests and that GPS monitoring is reasonable and supports the state’s goal of protecting children.  

The GPS Information Gathered Effectively Serves the State’s Goal. The Commonwealth quotes extensively from the trial judge who observed that while it is true that the GPS system could not issue an alert if Feliz entered a prohibited school zone, information could be gleaned after the fact to determine whether he had been near the site of a crime.  The trial court noted that recidivism among sex offenders is lower than that of other criminals, and may be lower still for internet offenders. If antisocial traits are present, however, the potential to commit a contact offense is greater. Moreover, the attraction to children present in child pornography offenders would logically indicate a greater likelihood of a contact offense.  

What Little Is Known.  Empirical evidence is not extensive, but some studies indicate that GPS monitoring inhibits recidivism. The very knowledge that data is being gathered may be inhibiting, one expert has observed.  Moreover, because internet addresses include location information, the correlation of internet addresses with GPS location information may promote deterrence.  

Searches and Suspicions and Diminished Privacy Expectations. The Commonwealth distinguishes the cases relied on by Feliz by noting that the Massachusetts Supreme Judicial Court has permitted searches of probationers’ homes based on reasonable suspicion rather than probable cause.  The Fourth Amendment protection accorded the home exceeds that attaching to location, which is low to virtually non-extant for probationers on parole.

An Indelicate Balance. The intrusion upon an offender’s person is minor when compared to the gravity of sex offenses against children.  Offenders’ expectations of privacy are not the same as those who have not committed crimes. The very fact of being on probation limits privacy expectations in location information.

Rehabilitation is Fostered by Universal Electronic Monitoring.  GPS monitoring can be seen as integral to rehabilitative goals.  The need for child safety makes application of the special needs doctrine apt, for the search involved in GPS monitoring is specific.  The inhibitory impact of an offender’s’ knowledge that information is being monitored serves the rehabilitative goal of impeding re-offending.  This purpose is not diminished because information is retained: the potential for confirmation evidence serves the public interest in protection from sex offenders.  

Daily Life Goes On, with Minimal Inconveniences.  The severity of any invasion of  a probationer’s privacy through GPS is overstated:  cleanliness and other daily activities may be easily accomplished.  

Among Friends

To aid the Supreme Judicial Court in its review, the Massachusetts Association for the Treatment of Sexual Abusers and the Massachusetts Association of Criminal Defense Lawyers have jointly submitted an amicus brief urging the court to require individualized assessments in connection with applying or waiving GPS monitoring.  The Commonwealth’s Attorney General, on behalf of the state’s probation services, has submitted an amicus brief which provides the technical details and practices involved in GPS monitoring.

Case Materials:





Oral Argument Webcast:

Suffolk Law Webcasts: SJC_12545


Sixth Circuit Concludes Cross Examination Must Be Available Where Narratives Conflict in Student Sexual Misconduct Cases. Court Observes that Evidence of Financial Pressures to Avoid Adverse Title IX Findings May Be Presented in Claim of Gender Bias.

Doe v. University of Michigan, University of Michigan Board of Regents, et al., No. 17-2213 (6th Cir.) September 7, 2018.

How the Case Came to Federal Court.  John Doe and Jane Roe, both undergraduates at the University of Michigan, met at a party, had drinks, and had some sort of sexual encounter, subsequent to which Roe complained to the university.  The university conducted a multi-witness investigation which yielded conflicting accounts of the Doe and Roe encounter. The investigator recommended no action. On appeal, the University Appeals Board set the recommendation aside and proceeded to the sanction phase of proceedings.  

Doe withdrew rather than face expulsion, then initiated suit in federal district court alleging denial of due process because he was not permitted a hearing with an opportunity to cross-examine Roe and other witnesses, and alleging discrimination against him on the basis of gender in violation of Title IX.

On Appeal, Doe Succeeds in Obtaining Reversal of Trial Court’s Dismissal.

The Sixth Circuit reversed the federal court’s dismissal of Doe’s complaint.  The panel stressed that due process requires the opportunity for cross examination in student misconduct matters. A credibility determination made on the basis of a paper record containing conflicting narratives falls short of constitutionally required minimums.  

Doe’s Consequences Severe While University’s Costs Minimal. The grave and life altering consequences of being labelled a sex offender serve only to underscore the need to afford an accused an opportunity to confront witnesses.  The cost of offering such an opportunity is negligible to the university but its absence may be devastating to the student under review. The university’s position that an opportunity to refute a paper record is a fair substitute for live cross examination defies circuit precedent establishing that cross-examination is without parallel in unearthing inconsistencies and in exploring credibility and demeanor.

There is Nothing Like the Real Thing. Witness statements cannot be substituted for live cross examination before the fact finder.  The panel noted, however, that if needed, the university may modify processes so as to minimize trauma to the complaining witness.  

It is not necessary, the panel observed, that only the accusing witness’s statement be in issue for the opportunity to cross examine be offered.

Doe’s equivocation in his police statement is not of such force as to conclude that he admitted wrongdoing which would preclude the need for cross examination.  Nor is it availing that cross examination occurred in a civil deposition conducted after the university had reached a conclusion adverse to Doe.

Money, Money, Money, Money. A university violates Title IX when it errs against a student based on sex.  In Doe’s case, the Sixth Circuit has announced that financial pressure on a university to conform to Title IX or risk forfeiture of millions of dollars in aid may be a factor in determining whether a decision was affected by bias.  As the record suggests that that the university credited female witnesses’ testimonies even where initial interviews favored Doe, when combined with financial pressures on the university arising from Title IX, Doe’s claim is sufficient to survive dismissal.  Even if other explanations might exist, as the court’s dissenting justice suggests, dismissal is not warranted.

While the court recognized the financial pressures as a component of bias, it has declined to expand the “archaic notions” theory of bias beyond the athletic realm and similarly has declined to extend a “deliberate indifference” theory behind sexual harassment claims.

Doe v. University of Michigan 6th Cir. September 7 2018

At a Crossroads: State Planning Commission and Veterans’ Organizations Petition for Supreme Court Review of Fourth Circuit Decision Finding Public Cross Memorializing War Dead Violates the Establishment Clause

The American Legion, et al. v. American Humanist  Association, et al., No. 17-1717; Maryland-National Capital Park and Planning Commission v. American Humanist Association, et al., No. 18-18.  

Responses to the petitions for certiorari  are expected to be submitted during the first week of August.

What is in issue? A forty foot tall cross memorializing World War I veterans stands at the intersection of U.S. Route 1 and Maryland Route 50 in Bladensburg, Maryland.  Called the “Bladensburg Cross,” the monument to fallen soldiers was completed in 1925, has been maintained by the Maryland Historic Trust, and was added to the National Register of Historic Places in 2015.   

Secular humanists lodged Establishment Clause objections to the monument in 2012. The United States Court of Appeals for the Fourth Circuit agreed with their position that the monument’s presence is an unconstitutional endorsement of religion.  

The Fourth Circuit determined that the 90 year presence of the “Peace Cross” could not survive the test announced in Lemon v. Kurtzman,  403 U.S. 602 (1971) because the presence of the Latin cross, symbolizing Christianity, has the primary effect of endorsing Christianity to the exclusion of all other religions.  

The request for Supreme Court review.  Defendant the Maryland-National Capital Parks and Planning Commission and intervenors the American Legion and affiliated organizations seek United States Supreme Court review, urging rejection of the Fourth Circuit’s view, noting marked disagreement among the circuit courts of appeals on the constitutionality of public displays of religious symbols, and inviting the Court to revisit and to realign an unwieldy Establishment Clause jurisprudence.

The state agency’s petition for certiorari. The Parks and Planning Commission argues that the cross has a predominantly secular purpose and conveys a predominantly secular message, rendering Establishment Clause examination unnecessary, particularly where the Supreme Court has held that the constitution does not require eradication of all public symbols of religion.  

The state petitioner notes that some federal circuit courts of appeal have essentially prohibited, as presumptively unconstitutional, the use of memorial crosses, a position which threatens the continued vitality of war memorials throughout the country.  Other circuits find the use of memorial crosses unobjectionable as nonsectarian historic commemoratives.

The Parks and Planning Commission argues that the nearly century old cross serves as a secular symbol of commemoration and as such does not violate existing Establishment Clause principles, which permit the use of religious symbols to convey nonsectarian messages.  The purpose and setting of the cross does not suggest the sacred.

The veterans’ organizations petition for certiorari.  Petitioners the American Legion and affiliates ask the Court to consider whether the Bladensburg memorial is unconstitutional because it is shaped like a cross, whether precedental tests should govern passive public displays of religious symbolism and, if Lemon applies, whether the state’s maintenance of the monument is an excessive entanglement with religion.

The Fourth Circuit’s conclusion, the veterans’ organizations suggest, offends the “benevolent neutrality” which the Court has found appropriate in Establishment Clause review.  Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). The wholesale and sweeping condemnation of all religious symbols without regard to secular purposes evinces hostility to religion and threatens memorials such as Arlington National Cemetery.

Petitioners stress that it has been observed that Establishment Clause jurisprudence is currently “a shambles,” that not only is the appropriate test for review of pf passive displays in disarray, but also the courts are in disagreement about construction of the “reasonable observer” test used in evaluating the impact of religious iconography or language.  Additionally, there is disagreement concerning whether any state maintenance of memorials incorporating religious symbols offends the Establishment Clause prohibition of state entanglement in religion.

The veterans’ organizations argue that the presence of the Bladensburg memorial cross is constitutional no matter what test is applied.  The veterans submit that the Court has found the Lemon test inapt when applied to passive monuments.  The Court has found, however, that historic meaning may permit religious acknowledgement without violating the Establishment Clause.  Thus the state of Texas may display the Ten Commandments on the state capitol grounds amidst other historic messages without offending the Establishment Clause. Van Orden v. Perry, 545 U.S. 677 (2005).

Even if Lemon were applicable, the American Legion groups argue, the Bladensburg Cross would pass its three-prong test.  The cross has the secular purpose of remembering the war dead; the cross by itself does not advance or inhibit religion; the cross does not foster government entanglement with religion even if some public funds are used for maintenance.  Nothing in the monument’s presence suggests that any religion is endorsed or that anyone not believing is not part of the community or that any beliefs at all are relevant to community participation. The constitutional prohibition of endorsement does not mean that all must be spared discomfort if they observe symbols they do not accept. The question is how a reasonable and informed observer would perceive a display.

The veterans submit that minor state expenditures — $117,000 over six decades — to maintain the memorial and its grounds cannot be seen as the “comprehensive, discriminatory, and continuing” state involvement necessary to constitute entanglement. Mueller v. Allen, 463 U.S. 388, 403 (1983).

The presence of the monument is acceptable within more recent Establishment Clause decisions, the veterans’ organizations advocate, as the Court has looked to historic traditions for guidance in determining whether a practice is constitutionally out of bounds.  Thus the tradition of opening legislative sessions with prayers that do not proselytize, denigrate or carry an improper government purpose is constitutionally innocuous. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).  

The veterans’ organizations urge the Court to validate the historic use of the cross to commemorate the fallen and ask that the Court find such measures presumptively constitution.  The veterans caution against the improper interpretation of the Lemon” effect test, for so doing would erroneously attribute religious meaning where a secular historical purpose predominates.

Maryland-National Capital Park and Planning Commission v. American Humanist Association Petition for Certiorari

American Legion v. American Humanist Ass’n Petition for Certiorari

American Humanist Ass’n v. Maryland-National Capital Parks and Planning 4th Circuit Opinion