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 restricts mother’s First Amendment speech and 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.

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

When Fifteen Minutes of Fame Hurts: Justice Thomas Invites Review of Media Insulation from Defamation Claims

McKee v. Cosby, No.  17-1542, 586 U.S.     . Petition for certiorari denied February 19, 2019.

Katherine McKee has publicly alleged that comedian Bill Cosby sexually assaulted her decades ago.  McKee has also alleged that in response to her allegations, Cosby’s attorney drafted and leaked a letter disparaging her character.  Her defamation claim against Cosby was dismissed, however, because by virtue of her public allegation she became a “limited public figure” and, as a result, she became subject to a higher standard of proof than applies to ordinary citizens.  Following New York Times v. Sullivan,  376 U.S. 254 (1964), public figures cannot succeed in libel against news media unless publication was made with “actual malice,” defined as actual knowledge of the falsity of any published statement or reckless disregard for its truth or falsity.

While the insulation proffered to the media may have been judicially fashioned with the best of intentions — to promote a press free from needless fear of liability — the impossibility of meeting the “actual malice” standard, while a boon to the media, can be crippling to ordinary citizens who are, sometimes unwittingly, and sometimes not, catapulted to public figure status.  

There is no government or private Office of Reputation Restoration. Traditionally the courts, in administering the law of defamation, served as the next best thing.  

Yet the courts no longer provide redress, opines Justice Clarence Thomas, and they do not because of the judicially created “constitutionalization” of the law of defamation in New York Times v. Sullivan.  

Justice Thomas observes that the New York Times v. Sullivan Court concluded that the heightened standard of proof it announced was compelled by the First and Fourteenth Amendments, but the Court did not say how its conclusion was grounded in the conceptualization of the Free Speech and Equal Protection Clauses as they were originally envisioned.

Nothing in history or in the Founders’ expressions indicates that public figures ought to lose remedial rights in order to promote speech rights.  Distaste for the criminalization of criticism of public figures, as found in public disdain for the Sedition Act of 1789, does not support the inference that civil standards must be heightened. Further, Justice Thomas offers, nothing indicates that the admittedly judicially created federal rule of New York Times v. Sullivan was intended to supplant state law of defamation, yet that has been the result.  

While Justice Thomas has joined the Court in declining review in light of the factually intense McKee claim, he has invited review of what he characterizes as judicial policy making in a proper case.

McKee v. Cosby, 17-1452 Certiorari denied February 19, 2019

The Old Concrete Cross: Humanists and Traditionalists Square Off Before U.S. Supreme Court to Argue Over Fate of World War I Memorial

The American Legion v. The American Humanist Association, No. 17-1717, combined with Maryland-National Capital Park and Planning Commission v. The American Humanist Association, No. 18-18. Oral argument February 27, 2019.


Nearly a century ago the families of soldiers who died in service during World War I collectively funded the creation and display of a forty foot tall concrete Latin Cross bearing the soldiers’ names, engraved words commemorative of honorable service such as “valor.”  The state of Maryland, through its Parks and Planning Commission, assumed titular ownership of the memorial some decades ago in order to support the upkeep of the Peace Cross, as the Bladensburg memorial is known, as it is fragile and may present hazards should parts of the cross crumble.  The Bladensburg Cross is currently installed along a state highway. It is unavoidably visible to drivers and passers-by.

The American Humanist Association and like minded entities complain that the acts of the state’s ownership, placement, and maintenance of the Bladensburg Cross violate the Establishment Clause.  As they are offended by the sight of what is in their perception a religious sculpture installment, the humanists assert that they have suffered injury sufficient to obtain judicial redress.

The United States Court of Appeals for the Fourth Circuit agreed with the humanists.  

Traditionalists — whether religious groups, advocacy groups, or military-related entities, are deeply concerned by the Fourth Circuit’s decision and fear that if the decision is permitted to stand then the fate of all war memorials bearing religious symbols throughout the nation will be in jeopardy.  

In addition to seeking reversal of the federal appellate decision, the traditionalists ask the Supreme Court to dispense with the Establishment Clauses analysis found in Lemon v. Kurtzman,  403 U.S. 602 (1971), as the three part test, proceeding as it does, in their view, from a predominantly secularizing standpoint, has not withstood the test of time. The petitioners ask the Court to return to the meaning of the Establishment Clause as it was envisioned at the founding of the nation, with a view toward custom and practice.

Petitioners ask with equal force that the Court reject the notion of “offended observer” standing, asserting that recognizing emotional reactions to passive public displays fails to articulate the concrete injury required for federal court jurisdiction.

The ordinary observer –offended or not — cannot fail to notice the cultural rifts underlying this dispute.  Humanists, by their own accounts, would enjoy greater peace of mind were they not reminded of religions in their daily encounters with the government, symbolic or real.  The presence of signs and symbols of Christianity — of which the Latin Cross is the defining icon — provokes a sense of exclusion from life in the public square. In light of the emergence of the nation as one embracing many faiths and many cultures, the humanists see no reason for continuing reminders of a religion that ought never be presented as being in control.  

Traditionalists, on the other hand, fear the destruction of  individual and collective memory and the loss of the nation’s history should monuments be razed in the name of the Establishment Clause.  To them, government involvement in the preclusion of religion is as offensive as any government involvement in its establishment.

If the cultural clash did not provide enough with which to grapple, the subtext of the legitimacy of originalism is in play as well, as that is what looking to the intent of the Framers is all about.  Textual analysis is of course a time honored and enduring legal tool, with much to recommend it, but the larger question is whether textual analyses and historical references will suffice to carry the day in disputes arising two centuries after the nation’s founding, subsequent to massive cultural, technical, and political change. Not the least of these changes by any means are changes to the Constitution itself, which, following reconstruction and later amendments, leave the nation’s principal governing document no longer as it originally was.

In addition to the principal parties, there are scholars, religious entities, special interest advocates, policy groups, veterans, states and local governments, and others who have weighed in as amici.  With the abundance of effort that has been expended to present this matter to the Court, one may hope that the Court will recognize that this may not be a case in which incrementalism will be a prudent response.

Links to principal parties’ memoranda as well as a guide to amicus submissions are set forth below.

Merits Briefs

20181217160935389_17-1717 American Legion Brief

20181217164050705_18-18 Maryland National Park and Planning Brief

20190123152713265_37350 pdf AHA Final Brief 1-23-19

20190213163922725_17-1717 American Legion Reply Brief

20190213120308294_18-18 Maryland National Capital Park Reply Brief

Joint Appendix

20181217164536737_Peace JA – Volume I

20181217164544300_Peace JA – Volume II

20181217164556003_Peace JA – Volume III

20181217164614847_Peace-JA-Volume-IV

Summary of Amicus Submissions

2019 02 24 Amicus Submissions AL v AHA 17-1717

 

 

 

 

 

Federal Court Enjoins Ordinance Regulating Speech About Sexual Orientation Change in the Therapeutic Setting

Vazzo, et al. v. Tampa, No.  8:17-cv-02AAS (M.D. Fla.) January 30, 2019.

A clerk magistrate for the United States District Court for the Middle District of Florida has entered an order enjoining the enforcement of a Tampa ordinance prohibiting therapists from discussing with adolescent clients Sexual Orientation Change Efforts (SOCE). The court left intact the portions of the ordinance precluding non-talk SOCE interventions.

Plaintiffs are therapists and a Christian ministry that serves as a referral source for SOCE counseling, which is intended to reorient minors away from same sex attractions.  Plaintiffs argued that the ordinance unconstitutionally constraints speech content and viewpoint, that it operates as a prior restraint of speech, and that it is vague and overbroad.

A Compelling Interest Not Narrowly Addressed. The magistrate observed that the regulation of professional speech is speech regulation, and not the regulation of conduct, as one court determined.  The government has a compelling interest in ensuring and promoting the mental health and safety of minors. Tampa failed, however, to provide any evidence that less restrictive means to support that interest had been considered, making it impossible to meet the strict scrutiny standard applicable to content based speech restrictions.  Impermissible viewpoint restriction was found where the ordinance regulates only speech concerning a particular form of therapy with a particular goal.

A Vague and Overbroad Prior Restraint. Moreover, as the ordinance prohibits speech before it is uttered, it operates as an unconstitutional prior restraint.  The breadth of discussion expressly or implicitly embraced within the ordinance leaves the average therapist in doubt about what is prohibited and at the same time invites discriminatory enforcement, making the ordinance overbroad and vague.

Irreparable Harm to Plaintiffs But No Concomitant Harm to Tampa. Having found plaintiffs had established a likelihood of success on the merits of the First Amendment claims, the magistrate also found that other standards for issuance of a preliminary injunction were met.  The delays inherent in being unable to speak until the conclusion of litigation presented irreparable harm. The city, by contrast, has an interest in not enforcing unconstitutional laws and no harm could be shown to flow from enjoining the portions of the ordinance precluding discussion of SOCE.

Further Developments Should Be Watched.  Claims surrounding the limits of speech regulations and the intervention of the state in the provision of health care are unlikely to abate. It may be wise to ask whether, if informed consent is the foundation upon which competent care may be had, speech restrictions are appropriate under all but the most narrow circumstances.  The consultation room remains, for all its secular trappings, something of a sacred space in which that which needs saying ought to be said without fear by either patient or provider. While it is always desirable to define and to support professional standards of care, doing so by speech regulation may not be the modality of choice.  

Vazzo v. Tampa MD Fla.20190130

Banishment from Public Officials’ Twitter Accounts May Violate the First Amendment, Federal Court in Wisconsin Concludes

One Wisconsin Now v. Kremer, Nygen and Vos, No. 17-cv-0820-WMC (D. Wis.) January 18, 2019.


OWN — One Wisconsin Now — an advocacy group blocked from the Twitter feeds of elected state legislators, has asserted injury to its First Amendment interests in federal court. The United States District Court for the Western District of Wisconsin has agreed, granting summary judgment in favor of OWN, and inviting subsequent briefing on appropriate remedies.

All parties have Twitter accounts intended to communicate or comment on political news and views. The legislators blocked OWN for various reasons, including a desire to curtail spamming or perceived off topic or unprofessional views. While all the legislators have blocked OWN, none has an official policy or protocol about blocking accounts and none has a clear recollection of why OWN was blocked.

Once blocked, OWN was unable to participate in the blocking account holders’ Twitter activities.

The federal court noted that the question whether a public official’s social media account is a designated public forum is a topic of emerging law. Two federal district courts and one federal appellate court have found similar social media to have the characteristics of public forum, and the United States Supreme Court have noted that the vast forum provided by social media is analogous to traditional public forums, such as parks.

Where elected officials opened their accounts in their official capacity, they acted under color of state law. The interactive nature of Twitter accounts makes them designated public forums. The officials engaged in content based discrimination when they blocked OWN from their accounts.

Citizens retain some speech rights on government property, including property not traditionally used for public discourse but opened by the government for such purposes. The interactive features of Twitter invite discourse, causing Twitter to bear the hallmarks of designated public forums. Defendants cannot deny having created a public forum on Twitter by denying an intention to do so, the observed. Had they wished not to do so, they could have posted a closed blog or used other medium that would prevent commentary.

The court found defendant’s comments about Twitter’s status as a private company and defendants’ engagement in government speech unpersuasive. Public forums may exist on public or private property. And even if the elected officials’ speech was government speech, by virtue of the interactive nature of the Twitter accounts, not all of it can be government speech, particularly where various voices are easily distinguished.

Once the government creates a designated public forum it must meet the same standards as traditional public forums. Content based restrictions — such as forbidding any and all comments by OWN — are prohibited by the First Amendment unless restrictions (other than reasonable time place and manner measures) are narrowly tailored to serve a compelling government interest.

The wholesale exclusion of OWN based on prior speech or identity or disapproval of OWNER’s perspective has not been shown to advance a compelling government interest. No compelling interest at all has been offered by defendants, only vague innuendo, with reliance on the notion of government speech protections extending to the Twitter account as a whole.

The court stated that in granting summary judgment for OWN, it is inclined to find OWN’s request for injunctive relief unblocking it from the accounts to be reasonable, but has directed the parties to submit by the end of January any comments on measures recommended for non-First Amendment related relief.

One Wisconsin Now v. Kremer, et al. (W.D. Wis., 2019)

Publisher Challenges Speech Restrictions in Author’s Settlement Agreement with Securities and Exchange Commission

The Cato Institute v. United States Securities and Exchange Commission, No. 1:19-cv-0047 (ABJ).  Complaint filed January 9, 2019.


The Cato Institute (CATO) wants to publish a manuscript detailing the Securities and Exchange Commission’s (SEC) litigation tactics.  The manuscript’s author entered into a settlement agreement prohibiting discussion of the case against the author in perpetuity. CATO asserts injury to its First Amendment interests.  

The SEC’s inclusion of post-settlement non-disclosure provisions in its settlement agreements is grounded in a regulation designed to inhibit agreement to claims solely for purposes of settlement.  Although the stated purpose of the regulation is to discourage admissions of wrongdoing where the party charged does not believe them to be true, this measure has been interpreted to allow the government to require that the party accused not discuss the case subsequent to settlement.

CATO was not a party to the author’s settlement with the SEC and the author is not a party to CATO’s suit.  CATO alleges injury in fact because the settlement agreement acts as an unconstitutional restraint of CATO’s speech and press freedoms.  The settlement agreement provisions are unconstitutional conditions requiring a party to forfeit a constitutionally guaranteed right in order to obtain settlement.  No government purpose is advanced by unending and overbroad speech restrictions, CATO submits.

CATO’s suit comes at a time when non-disclosure arrangements appear to be honored more in the breach than in the observance.  While there are many forms of such agreements, and much may depend on whether agreements are between private parties or with government entities, this challenge to the alleged heavy hand of federal regulatory power may prove interesting provided, however, that CATO, a stranger to the agreement with the SEC, is successful in establishing Article III standing.

Cato v. SEC Complaint D. D.C. Jan. 9, 2019

 

Ordinance Compelling AirBnB and HomeAway to Produce Business Records Each Month Preliminarily Enjoined as Violative of the Fourth Amendment, Southern District of New York Concludes

AirBnB, Inc. v. City of New York, No. 18-7712; HomeAway, Inc.  v. City of New York, No. 18-7742 (S.D.N.Y.) January 3, 2019.


The City of New York has enacted measures requiring online rental booking services to turn over their business records each month, a measure intended to limit the proliferation of short-term rentals.  The services have successfully sought preliminary injunctive relief on Fourth Amendment grounds.

No physical entry on the online booking providers’ premises is involved in the contemplated municipal demand for monthly records.  Nonetheless, the court found, the Fourth Amendment may be implicated without such a physical intrusion. Moreover, the federal court found, that the source of the intrusion lies within a municipal ordinance rather than an agent of the state does not remove the providers’ Fourth Amendment protections.  The critical issue is the intrusion upon the providers’ expectations of privacy.

The court declined to reach the booking services’ argument that the ordinance compelled speech in violation of the First Amendment, as the Fourth Amendment issue was perceived to be sufficient to support issuance of a preliminary injunction.

The case is one of a series of attempts to impose regulations sufficient to dissuade further proliferation of short-term rentals of properties through entities such as AirBnB and HomeAway.  Whether the plaintiffs will prevail in the long run remains to be seen For the moment, however, it is of note that the court was not hesitant in reading the Fourth Amendment generously and in keeping with emerging concepts of telecommunications and online privacy considerations, a position which may work to the betterment of privacy interests online for all.  

Equally of note is the notion of regulatory measures gathering business information as a substitute for zoning or other more traditional property rights enforcement devices.  Where physical boundaries are ceding their predominance to online invisible geography, such laws are worthy of attention, and to some, are cause for concern.

AirBnB v. City of New York (S.D,N,Y, 2019)