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


Benched! High School Coach, Terminated for Silent Post-Game Prayer on Field, Seeks Supreme Court Review of School Policy Characterizing All Expressive Conduct Observable by Students to be School Speech Unprotected by the First Amendment

Kennedy v. Bremerton School District, No. 18-12 (S. Ct.)

High School football coach Joseph Kennedy was fired because he paused to kneel on the school playing field in silent prayer following games. He was observable by all. At times students  sought to join him, which he neither encouraged nor discouraged, nor did he proselytize.

Kennedy was directed not to pray as he had been doing, as the school saw it in violation of a policy making all staff behavior school speech unprotected by the first amendment, He sought an exception because of his sincerely held belief that offering prayer was appropriate.  Kennedy received an unfavorable performance review and was dismissed.

Kennedy’s counsel seek United States Supreme Court review, arguing that the First Amendment forbids the Bremerton School District’s policy that deems all “demonstrable communications” observable by students to be constitutionally unprotected school speech.   

Counsel submit that the Supreme Court has long recognized that neither student or staff are stripped of First Amendment rights at the schoolhouse door.  Although the speech protections of public employees are subject to some limitations, no one has seriously suggested that a public employee is anyone other than a citizen. Petitioner Kennedy observes that the school district policy brings all expression under the umbrella of “school speech,” causing public school employees to lose all First Amendment protections while engaged in an ever-expanding array of activities characterized as work. Kennedy argues that a policy which removes all First Amendment expressive protections for as long as a school employee is at work, as defined by the employer, cannot be constitutionally sound.

The response to Kennedy’s petition for certiorari is due on August 1.  It is likely that amicus briefs will be submitted before the petition for certiorari is calendared for conference review.

2018 06 25 121651278_Petition for Writ of Certiorari – Kennedy v. Bremerton School District

Yelp! Would Like to Think That it’s Immune to This (Court Ordered Take-Down) Stuff. A Divided California Supreme Court (Mostly) Agrees

Hassell v. Bird, No. S235968 (Cal) July 2, 2018.

In the infancy of mass online culture, Congress thought the expansion of online communications and its economy would be fostered by insulating internet service providers from liability when those providers do not act as content providers. The Communications Decency Act of 1996, Section 230, offered that assurance. There is a certain amount of intuitive sense in offering such immunity, particularly if internet service providers are seen as forms of utilities, like telephone companies, which are not ordinarily responsible for things said over their lines or airwaves.

No matter whether this corporate immunity is seen as salutary or not, what is clear is that not all situations could be foreseen or addressed by Section 230 more than twenty years ago.  Hassell v. Bird highlights the struggles between private online users and the corporations which control access to online postings.

Ava Bird was not pleased with the representation of the Hassell Law Group, and let the world know by publishing a review on Yelp!!, on online site on which businesses advertises and readers post their views of the business’s success (or failures).  Hassell successfully pursued an action for defamation against Bird, who could not be found at the time judgment was entered against her. Hassell sought and obtained a mandatory injunction directing Yelp to take down Bird’s defamatory review.

Yelp! refused, citing immunity under Section 230.  The Supreme Court of California today agreed with Yelp!’s position, finding that through the take-down orders, the lower courts had erred in casting Yelp! as speaker and publisher of the content, a result neither supported by the facts nor consistent with Section 230.  The lower courts found it unobjectionable to ask Yelp! to aid in executing an order of take-down to aid in effectuating Hassell’s judgment, and observed that the principles of immunity would not be abrogated by doing so, for no liability had been imposed on Yelp!.

The majority of  the Supreme Court of California was not pleased with Hassell’s determination not to join Yelp! as a party defendant, because, in the majority’s view, ultimately the order that was sought treated Yelp! as the publisher or speaker of the information to be removed.  The Supreme Court of California perceived the refusal to join Yelp! as strategic, but tactically fatally flawed, for Hassell was attempting to do indirectly what Section 230 would directly forbid.

The majority of the court disagreed with the notion that Yelp! would not be burdened by compliance with the order in issue and, presumably, with similar orders to follow in the future.

The majority noted that Hassell retains remedies against the judgment defendant, who could be required to try to secure removal of her posts.  

In concurrence, Judge Kruger would narrow the determination to find the order invalid where Yelp! had not been a party to the litigation and had not had its day in court. Section 230 need not be considered, but if it were, it would likely immunize Yelp!. Whether immunity would continue on other facts remains for examination on another day.

Dissenting Justice Lui sees the court as ensuring that Hassell will continue to suffer the harm that her defamation action sought to ameliorate.  No circumstances that immunity was intended to avoid are present where Yelp! has not been exposed to any liability or required to defend against an action for defamation.  The general principle that non-parties are not subject to orders and judgments does not apply where Yelp! was asked only to aid in effectuating a judgment that had already entered. Without suggesting that all online services that publish reviews ought to be open to compliance with removal orders, Judge Lui could not construe Yelp!’s relationship with Bird as entirely passive, as it was only through Yelp! that Bird could act.

Judge Cuellar has dissented separately, with Judge Stewart’s agreement, and in so doing drew no small amount of counterargument from the majority.  Judge Cuellar disagreed with the notion that Section 230 provides an absolute bar to any liability. Due process principles are involved with the notion of compliance with a lawfully issued order, but the court’s determination in this case has gone too far and will serve to defeat those who seek redress for defamation.  Section 230 can be seen as immunizing against liability for damages, not as a shield against compliance with court orders, which can run against third parties. There would be no unfairness to Yelp! concerning the take-down injunction, for notice to Yelp! would be required before any such order could be entered.

It is highly unlikely that this case will be seen as resolving the issues presented when liability arises in the course of  life online, although for present purposes the decision is likely of great comfort to internet service providers and great consternation to those who assert they have been defamed online. The California Supreme Court judges have been nothing if not  thorough in describing and discussing all relevant precedent. In that regard, the Hassell v. Bird decision may serve as a teaching case as well as a significant decision in its own right.

Hassell v. Bird, No. S235968 (Cal.) July 2, 2018

Supreme Court Holds California’s Regulation of Pro-Life Pregnancy Centers Fails First Amendment Review

National Institute of Family and Life Advocates, d/b/a NIFLA, et al. v. Becerra, Attorney General of California, et al., No. 16-1140 (June 26, 2018).

California Requires Pro-Life Pregnancy Clinics to Provide Information About Abortion Access. California enacted legislation requiring that state licensed crisis pregnancy centers provide clinic visitors with notice, including telephone contact information, that the state provides free or low cost services, including abortion. California also required unlicensed clinics to provide notice of their unlicensed status. The California Reproductive Freedom Accountability, Comprehensive Care and Transparency Act (FACT Act) imposes its notice requirements only on pro-life entities, as state sponsored or non-pro-life clinics are excepted.

The Pro-Life Entities Failed to Persuade the Lower Federal Courts. Petitioners unsuccessfully sought federal injunctive relief in on First Amendment grounds, a result affirmed by the Ninth Circuit Court of Appeals, which held that petitioners could not demonstrate a likelihood of success on the merits where the licensed notice requirements met the low level of scrutiny attaching to “professional speech” and the unlicensed notice requirements satisfied any level of scrutiny

The Ninth Circuit’s characterization of the statute as regulating “professional speech” permitted avoidance of the strict scrutiny mandated by presumptively unconstitutional content based speech restrictions.

The Supreme Court Disagrees. The Supreme Court has concluded that the petitioners can likely succeed on the merits of their claims, has reversed the judgment of the Ninth Circuit, and has remanded the matter for further proceedings.

The concern is the speech, not the speaker. The Supreme Court observed that the Court has never recognized this new category of “professional speech” subject to less rigorous review. States may regulate professional conduct even if such regulation incidentally burdens speech. Deferential review has not, however, turned on who is speaking, but on the factual nature of disclosures concerning commercial matters.

The Supreme Court concluded that the FACT Act had little to do with regulation of professional conduct but instead regulated speech as such. While the Court refused to foreclose the potential to recognize professional speech at another time, the Court observed that the dangers of speech regulation — that the government will use its power to suppress disfavored ideas — applies to “professional speech.” An inability to discuss good information,or the distortion of information, or the provision of bad information, while particularly deadly in medical settings, easily can be seen as diminishing the “marketplace of ideas” in which robust discussion ultimately serves the truth.

Rights as significant as those guaranteed by the First Amendment cannot depend on professional licensure. Permitting such limitations would provide the state with a tool that could be wielded to promote invidious discrimination against unpopular ideas.

Even if “professional speech” were recognized, the Court’s conclusion would not change, as the statute could not survive intermediate scrutiny, being “wildly under-inclusive” because of its application, after unsupported exclusions, only to pro-life entities. California could have addressed its concerns about information itself without burdening any private speech.

“Maybe” Measures Disfavored. The Court found California failed to meet its burden of establishing that the unlicensed status notice addressed anything other than a hypothetical harm, an unacceptable result. Broad prophylactic measures risk chilling protected speech. Nothing suggested that women were unaware of clinics’ licensure status. Notice of the absence of licensure was not needed for services for which licensure was not required.

Even had a justification for the measures been found, the state cannot compel non-state speakers to adopt a government script that unduly burdens speech. The Court found California’s distinctions among services between the license and unlicensed notice requirements to be odd. The FACT Act affects the speech of some speakers, but not others, a disfavored result, and occupies space already addressed by the state licensure regulations The detailed parameters and specifics of the notice requirements underscore the state-imposed burden, particularly as they threaten to drown out a clinic’s own chosen message.

Justice Kennedy Warns of the Dangers of the Authoritarian State. Justice Kennedy joined the majority opinion in full, applauding the Court’s restraint in making its determination without addressing the viewpoint discrimination issue presented. The Court’s determination on other grounds in no way intimates that the law would be acceptable had a broader base and broader coverage been employed. The design and structure of the act embodies viewpoint discrimination and exemplifies the threat presented when the government seeks to supplant individual speech, thought, and expression. The state’s intent — to compel speech contrary to deeply held beliefs — coupled with its apparent targeting of beliefs disfavored by the state — is far from “forward thinking” but instead illustrates the ills of authoritarian government, avoidance of which was and is a cornerstone of the Constitution.

Ill at Ease with the Majority’s Reasoning, the Dissent Fears a Cascade of New Challenges. Justice Breyer and three others foretell the doom of many disclosure regulations as a result of the Court’s decision. Justice Breyer and his colleagues question why, if information must be provided to obtain informed consent, information cannot be required to be provided about available services and licensure status.

NIFLA v. Becerra, No. 16-1140 June 26, 2018

Some Friend! Facebook Gun Photo Not Suppressed, Even Where “Friend” Turned Out to Be a Detective

Everett v. Delaware, No. 257.  Supreme Court of Delaware, May 29, 2018.

Everett was indicted for unlawful firearm possession after a detective, using a false profile, became Everett’s Facebook “friend,” which enabled his observations of Everett’s posted media showing his nightstand displaying a gun.  Everett moved to suppress the evidence, claiming that the detective’s monitoring of his Facebook page violated the Fourth Amendment. The Supreme Court of Delaware rejected this challenge, holding that a Facebook user has no reasonable expectation of privacy that Facebook information will not be passed along.  False friendship, gossip, and unwanted sharing of information are recognized hazards of human social interaction. “Friends” are always free to pass information along, whether or not the disclosing party wishes. The Fourth Amendment does not protect information voluntarily disclosed to an accepted “friend,” whether in person or online.

Similarly, the court rejected the notion that there needed to be evidence of wrongdoing before the detective initiated the ruse:  there is no constitutional protection against a misplaced belief that shared evidence of wrongdoing will not be disclosed.  

Everett v. State (Del., 2018)


Civil Wrongs: Supreme Court Reverses State Judgment in Gay Wedding Cake Controversy: Colorado Civil Rights Commission’s Bias Against Religion Offends the First Amendment

Masterpiece Cakeshop, Ltd. v. Colorado Commission on Civil Rights, No. 16-111, 574 U.S. ____ (June 4, 2018).

This much publicized case promised a showdown between gay civil rights and religious convictions in the public square.  The Colorado Civil Rights Commission and the state’s Court of Appeals found in favor of the gay couple who complained of civil rights violations when a custom baker declined to create a cake for their wedding, citing religious convictions precluding support of gay marriage.

The controversy pitted egalitarian principles governing commerce — the public accommodations laws — against a merchant’s religious views which, he averred, precluded the extension of goods and services to the gay couple seeking a custom wedding cake.

Noting the depth and significance of the issues presented, the Supreme Court today deftly left them for another day, finding that the conduct of the state in adjudicating the couple’s discrimination claim in itself violated the First Amendment.

The Supreme Court found that the Colorado Civil Rights Commission’s contempt for the baker and the expressed view that religious freedom has justified slavery and the Holocaust caused the commission to be in dereliction of its obligation of fairness and neutrality in considering religious assertions.  As such, the Commission’s determinations and the judgment of the state court of appeals upholding it must be reversed.

Those hoping for some sort of High Noon between civil rights and religious liberties in this case may pause for a moment of disappointment.  Nonetheless, there may have been wisdom in the Court’s taking the high road on the issues of substance in favor of chastening those who administer justice that they must do so with due regard to the rights of all who appear before them.  A basic lesson, perhaps, but one that this Court, on the record before it, clearly felt merited repeating.

2018 06 04 Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, et al. S.Ct





The Sinful and the Secular Collide in Iowa Clergy Scandal: Iowa Supreme Court Sets Parameters of Church’s Exposure to Liability

Bandstra, et al. v. Covenant Reformed Church, No. 16-1078.  Supreme Court of Iowa, June 1, 2018.

Covenant Reformed Church of Pella, Iowa, is governed by a professed religious pastor and lay elders who serve in both administrative and pastoral capacities.  The pastor is subject to the supervision of the board of elders, who monitor the doctrinal quality of preaching, who meet with the pastor to discuss matters needing attention, and who consult with members of the congregation concerning satisfaction with the pastor.

More than a decade ago, Covenant Reformed Church installed talented homilist Patrick Edouard as pastor.  Edouard resigned immediately after the elders received reports that he had engaged in sexual relations with two congregants during the course of counseling.  

The church leadership responded to the resignation by a letter to congregants noting that Edouard’s sin had compelled the acceptance of his resignation.  The letter provided no details about his conduct.

The elders then summoned the women involved with Edouard, urging and receiving confessions, and offering forgiveness.  

The elders then wrote to the congregation to stress that Christian prudence would caution against naming or discussing the persons involved in the departure of the pastor, and emphasizing the congregation’s wish that these persons remain among them.  

Following intervention by a parishioner concerned that the elders had not used current social theory nomenclature in discussing the women by referring to sin and adultery rather than victim hood.  The elders conferred and determined that in the absence of other evidence, Biblical terminology was apt. The elders were of the view that both the minister and the congregants bore responsibility, that repentance was desirable, and that the matter was neither one of “clergy sexual abuse” or “grooming.”  The elders sought but did not received endorsement from an expert on clergy sexual abuse.

The women involved with the minister — who was convicted by a jury of sexual exploitation — sued the minister and the church, alleging negligence in failing to provide clergy sexual abuse experts to work with the congregation, infliction of harm in blaming the women for their involvement, negligent supervision of the pastor, and defamation.

The Supreme Court of Iowa has opined that the elders’ characterization of the pastor’s and the women’s conduct as adulterous lies squarely within the church’s religious province:  interference by a secular civil court would offend the Religion Clauses of the First Amendment.

The First Amendment  limit on civil judicial intervention does not attach, however, to the supervision of the pastor, an administrative task not involving theological concerns. Similarly, the court observed that clergy communications of secular purpose — supervision, governance, and administration — are not privileged.

It is notable that the court adopted an expansive view of the qualified immunity attaching to clergy and congregational communications, extending its protections to the lay church elders.  

The court reviewed several official communications, concluding many were not actionable as defamation in the absence of evidence of abuse, malice, or conduct beyond the group’s purpose.  Other communications were non-actionable opinion.

Documents not before the court or contested documents ought to be examined in view of these principles on remand.  

Some may be comforted and others vexed by the state supreme court’s recognition of its constitutional constraints.  The court was clear that while the First Amendment forbids judicial interference in ecclesial matters, that is not the case with judicial examination of a church’s secular functions or where clerical privileges may be lost through misuse.  What is notable is that in this case, the very wrong alleged is the use of Biblical language with arguably injurious secular connotations. In an increasingly secular society, in which reputation is easily lost and seldom fully redeemed, it is not likely that the Iowa court’s view, however sound it may be, will end exploration of the legal admixture of the sacred and the profane.

2018 06 01 Bandstra v. Covenant Reformed Church. Iowa Supreme Court




The Electronic Public Square: The President’s Twitter Account Is Public Forum. In Permitting Political Commentary on Twitter, the President May Not Preclude or Banish Authors Offering Criticism

Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al.No. 17 Civ. 5205 (NRB) (May 23, 2018).

The United States District Court for the Southern District of New York required seventy five pages with which to examine the nature of Twitter, Tweets, and Retweets, the nature of the President’s actions in creating and posting to a Twitter account, and the constitutional limits on inhibiting speech in a virtual public forum.  

In short:  a Twitter account operated by the President is a public forum in which protected political speech occurs.  Precluding critical views is unconstitutional viewpoint discrimination.

No doubt the seventy five page exegesis was crafted with an eye toward further review. Whether this will occur is not known, but what is of note is not entirely the federal district court’s primary determination, which has the virtue of appealing to a commonsensical “come one, come all” view of public debate in the new millennium, but rather some of the court’s supporting determinations are somewhat intriguing.

The trial court declined to opine concerning whether the judiciary could enjoin the executive, a matter wisely sidestepped as, the court offered, it is not necessary in declaratory proceedings.  More interesting, however, is the court’s view that even if the President could not be enjoined, his staff could, which some may perceive to be something of a topsy-turvy view of agency. In addition, the court noted that it had at hand recourse to the All Writs Act.  With the person considered to be suitable for induction before the court, and thus subject directly to the court’s orders, it is not easy to apprehend why the All Writs Act would be needed.

Most beguiling is the notion of “readership standing” found to support the claims of the Knight Institute.  The outer limits of such a concept of standing, envisioning injury occasioned by not being able to read a Twitter poster as often or as clearly as wished, remain for exploration, but this does seem to be, at best, quite an expansive view of what sort of interest or injury may support standing.  In this case, however, the Knight Institution’s claim may be worthy of merit by virtue of some semblance of concreteness, there having been alleged an existing relationship with one of the banished readers. However, it is not inconceivable that future cases will test this notion: time will tell.  

Knight Foundation, et al. v. Trump, et al., 2018.05.23 Order on Motions for Summary Judgment