Gadflies Allowed:  Maine School Board Cannot Banish Parent Whose Speech Causes Them Discomfort


McBreairty v. School Board of RSU22, et al., No. 1:22-cv-00206-NT (D. Maine).  Order granting temporary restraining order entered July 20, 2022. 


Public Schools, Public Participation.  Public schools in Maine are managed through town participation in Regional School Units, here RSU22.  The public is invited to participate in school decision making through time set aside for public comment at town school board meetings.  That public participation is governed by guidance requiring common etiquette and forbidding speech in excess of three minutes, gossip, complaints about individuals, defamation, and vulgarity.

Violation of these policies may result in removal from the meeting. 

Trouble in RSU22. Beginning in the autumn of 2021, and continuing until early May, 2022, parent and Hamden town resident Shawn McBreairty spoke at meetings about his concern that school library materials included sexual material not appropriate for students.

At times McBreairty was said to exceed three minutes’ speech, on one occasion he made a brash accusation, and he was criticized for playing a recording describing a sexual act that gave rise to his concerns.

In May, 2022, the school board wrote to McBreairty’s counsel, providing notice that McBreairty was suspended from attending further school board meetings for eight months.  Upon arrival at a June, 2022 board meeting, McBreairty was precluded from attending, and was issued a criminal trespass notice forbidding his attendance at RSU22 school functions, whether in person or online.

McBreairty sued the school board in federal court alleging violation of his First Amendment rights and demanding immediate injunctive relief.

Injunctive Relief and the First Amendment.  Courts cannot compel action or restraint from action before trial unless a complainant can demonstrate a likelihood of success on the merits of his case, that irreparable harm would result if injunctive relief were not granted, that the balance of equities favors relief, and that the public interest would be served by relief.  

Irreparable harm is presumed when speech is restricted.  

Obscene speech is not protected by the First Amendment.  Here, however, the court found that McBreairty’s reference to a sexual act lacked prurience and was not, in the context, without merit.  Thus the speech found objectionable by the school board was nonetheless protected by the First Amendment.

Foraging through Forum Analysis.  The government must establish the constitutionality of any speech restrictions the government imposes.  Review considers the places where speech will occur and the purposes of any gathering.  “Forum analysis,” which proceeds from great liberality in speech to some restrictions upon speech, while superficially appealing, is nonetheless not infrequently something of a bog.

The federal court in Maine has provided a primer describing the degrees and kind of government restrictions that are n .  Traditional public forums, such as parks, streets, or other places historically used for public communications, are free from regulation except where a government can demonstrate that any restriction is neutral and narrowly tailored to a compelling government interest. While time, place and manner restraints may be imposed, alternative communication channels must exist.  

Where a government has designated that a space be open to the public, the same rules as for traditional public forums apply. 

Limited public forums are open to certain groups or for certain topics, and speech may be restricted provided no permissible speech is restricted on the basis of viewpoint and that any restriction is reasonable in light of a forum’s purpose.  

Nonpublic government property not traditionally or by designation used for public conversations may be subjected to speech restrictions provided that the goal of any restriction is not the suppression of disfavored speech.  

Looking to Other Court’s Conclusions in the Absence of Controlling Precedent.  Neither the U.S. Supreme Court of the U.S. Court of Appeals for the First Circuit has decided what sort of forum a school board meeting is, suggesting that the court might look to the determinations of other courts, most of which have found that school meetings are limited public forums.  

The court rejected McBreairty’s argument that school boards are traditional public forums subject to only the most narrow government restrictions.  School boards meet for particular purposes to discuss particular topics:  as such, school boards may reasonably impose order on those proceedings.    

As a limited public forum, a school board may regulate access in light of the forum’s purposes but the state may not unreasonably exclude speech based on viewpoint.  

Distinguishing between content and viewpoint based restrictions allows a governing body to restrict speech as it relates to the purpose of the forum while forbidding excluding points of view on matters that are otherwise related to a forum’s purpose.  

There May Be Some Discomfort.  The court found McBreairty’s public comments concerned the school.  Even if at times unorthodox or provocative, the court perceived that in the main McBreairty did not violate school board policy, although he did do so by referencing school personnel and exceeding time limits in speaking to the board.  

While the warning letter issued to McBreairty might have carried the potential to chill speech, as McBreairty appeared undeterred as a matter of fact, that issue is not central to the decision. 

Having rejected the idea that McBreairty’s speech was obscene, the court pointed with concern toward what appeared to be an ad hoc and cumulative approach to McBreairty’s appearances before the board.  Any discomfort experienced by the board cannot justify restricting protected speech.

This Long is Too Long.  Even if viewpoint discrimination were not conclusively established, an eight month ban on McBreairty’s presence at school board meetings is unreasonable, the court found.  

Injunctive Relief Awarded.  The court found that there is a likelihood that McBreairty will prevail on his as-applied First Amendment challenge and ordered the school to refrain from enforcing the penalties contained in its letter and in the trespass notice.  While the school board has an interest in the orderliness of its meetings, that does not require months-long forfeiture of First Amendment speech rights.

McBreairty v. School Board of RSU22, No. 22-cv-00206 (D. Maine). Order granting TRO July 20, 2022

Coach May Take a Knee: Supreme Court Holds Termination for Private Prayer in Public at Public School Event Is Impermissible



Kennedy v. Bremerton School District, No. 21-418.  Opinion released June 27, 2022


Joseph Kennedy, a football coach for the Bremerton School District in Washington, lost his job because he knelt in prayer at the football field midpoint after games.

No formal proceedings or games were underway at the time.  

Fearing violation of the Establishment Clause, the school district disciplined the coach because the school district believed that observers would think that the school district endorsed the coach’s beliefs.

The Court found the school district erred in its perception of the law.  Writing for the Court, Justice Gorsuch commenced:

Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

After several years of what appeared to be unobjectionable prayer at practice, positive feedback from another school caused Kennedy’s school district to be concerned about the impression he was creating with ‘inspirational talks,’ on-field prayer, and locker room prayer.  The school forbade Kennedy to engage in any religious activity to “avoid the perception of endorsement.”  Slip Op. at 3.  The school opined that school employees’ Free Exercise rights must yield to the school’s interest in precluding a perception of endorsement.

The coach ended his prayer practices after receiving correspondence spelling out the school’s position.  Nonetheless, after a game, he return alone to pray on the football field because he sensed that he had broker his commitment to God.

No one was in the studio at the time.

Kennedy asked that the school district permit him to continue his post game solitary prayer practice.  

The school district denied his request, reiterating that the couch could not while on duty engage in activities that might suggest endorsement. 

Media coverage was sparked when the coach bowed his head at midfield after the game.  Others joined the coach in prayer, while the Bremerton team was occupied singing the school fight song.

The School District posted notices forbidding public access to the filed, while discussions among officials observed that the issue was changing from the coach leading the students to the coach engaging in private prayer.  

Several rounds of testing and resetting prayer limits and accommodations ensued.  The School District issued a public explanation of its choices and rationales.

Coach Kennedy’s annual performance evaluation for 2015 was poor and rehire was not recommended.  The evaluation said that the coach failed to follow policy and failed to supervise student athletes after games.  Slip Op. at 8.

Kennedy sued the school district.  He was denied injunctive relief on his Free Speech and Free Exercise claims at the trial and appellate level. The U.S. Supreme Court denied certiorari, cautioning that denial of the petition did not indicate agreement with the courts below. 

Another round of litigation ensued.  The coach’s free speech claim was denied and he was again denied relief for his Free Exercise claim at the trial and appellate level.  The trial court held that the school district had a compelling interest in prohibiting post-game prayers which if permitted would violated the Establishment Clause. Slip Op. at 9. 

The Ninth Circuit, observing that the coach was on the football field only because of his position with the school, held that the School District would have violated the Establishment Clause if it failed to stop the prayer.  Avoidance of Establishment Clause violation was seen as a compelling state interest. 

Rehearing en banc in the Ninth Circuit was denied, with concern that it was error to hold that had the school not disciplined the coach, the school district would have violated the Establishment Clause. Others dissenting from the denial of rehearing questioned the perception that the Establishment Clause comes into play in any case in which a “reasonable observer” could perceive endorsement. Slip Op. at 10. 

The Supreme Court opinion in Kennedy stresses that the Free Speech and Free Exercise clauses work together, and that the Free Speech clause protects expressive religious activities, while the Free Exercise clause protects religious exercise as such. 

The added protection for free religious expression int he free speech clause reflects the Founder’s distrust of government attempts to regulate religion.

If a plaintiff meets his initial burdens, the state must show its justification is in compliance with case law.

The school district admitted its intent was to suppress Kennedy’s religious activity and its policies were not neutral. The performance evaluation included standards not generally applicable, such as post-game supervision of students.

Precedent recognizes that First Amendment rights are not shed at the schoolhouse gate.  Tinker v. Des Moines Independent School Distinct, 393 U.S. 503, 506 (1969).

Precedent also suggests a two-step inquiry will help to understand how free speech and government employment are to be approached.  At times, state efficiency in managing its services may outweigh a public employee’s free speech interests.  Slip Op. at 16.

Coach Kennedy’s prayers were not related to his public duties.  Any mantle of public investment in his role as a teacher had limits, including limits that would prevent private activity.  Slip Op. at 19.

Although generally the school district must satisfy strict scrutiny to justify its actions, in this case the school district could not prevail under a more lenient standard.

The Supreme Court has rejected the idea that the school district was justified in disciplining the coach, for to have forgone discipline, in the school’s view, would have violated the Establishment Clause.  Such a reading suggests a Constitution at war within its clauses, rather than acting in a complementary fashion. Slip Op. at 21. 

The Court announced that it has not only rejected Lemon v. Kurtzman, 403 U.S. 602 (1971), but also the extension of Lemon to an “endorsement” component featuring the perceptions of a “reasonable observer.”  Slip Op. at 22.  

The Establishment Clause cannot serve as a “hecklers’ veto” to proscribe religion based on “perception or “discomfort.”  Id.  

The government has no obligation to purge any material that an observer might consider to involve religion.  

History, practice, and understanding are to serve to analyze Establishment Clause claims in lieu of Lemon.  Slip Op. at 23.  

The Court was unpersuaded by what it perceived to be an 11th hour argument that petitioner coerced students to pray with him, as no support for this can be found in the record.  Slip Op. at 24-27.  Assertions of tacit or implied authority, relying on hearsay, offer no substantiation for such a claim.  Slip Op. at 27.  Coercion cannot be manufactured by ‘deeming’ any religious behavior to be coercive.  Slip Op. at 28. 

The Court vigorously rejected the nation that the First Amendment compels conflict among constitutional guarantees, concluding;

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. 

Slip Op. at 31-32.

Justice Thomas concurred to question whether the Court ought to consider the limited “public concern” Free Speech protection accorded public employees.  The Court does not indicate what an employer must do to justify any restriction on religious activity.  As there was no need to do so because the Court found the school district  could offer no constitutionally sound reason for its behavior,  Justice Thomas questions the intimation that the “balancing” test applied in free speech cases might be imported to srve in free exercise claims.

Justice Alito concurred to observe that the decision at hand does not establish what standard ought to apply to expression under the Free Speech clause, only that retaliation for expression “cannot be justified on any of the standards discussed.” 

Dissenting Justices Sotomayor, Breyer and Kagan found no authorization in the Constitution which would permit the conduct at issue in this case.  Moreover, overruling Lemon in this decision is of great consequent, as in doing so the Court rejects decades of concerns about endorsement. 

The majoriey read the record far too narrowly, Justice Sotomayor writes, overlooking the real community disruption caused by the petitioner. 

The issue was incorrectly framed, in her view.  The question is not the protection of private prayer at work but whether persona religious beliefs may be incorporated into a public school event. Sotomayor, dissent, Slip Op. 13-14.

The majority has overlooked that the public prayer at a public school comes close to being speech within the coach’s official duties, winch view would cause the speech to lose any First Amendment protections without regard to the conflict between the  clauses.

Permitting an individual’s religious practice in the context described violates the Establishment Clause,  particularly where public schools must maintain neutrality to fulfill their obligations.

Failure to address the tension between the constitutional clauses silently elevates one constitutional interest over another, an undesirable practice.

The idea that the perceptions of a reasonable observer ought to be considered in evaluating Establishment Clause claims ought not be so handily dismissed, for it is that very perception that has give rise to much concern in public schools.  Nor should the question of coercion be dismissed, as it is not unreasonable to consider whether by their very nature public schools, in structure and administration, embody at least a modicum of coercion. 

21-418 Kennedy v. Bremerton School Dist. (06_27_2022)

 

Up in Arms! Supreme Court Holds New York’s Demand that Permit Seekers Demonstrate Special Need for a Gun Violates the Second and Fourteenth Amendments

New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent Of New York State Police, et al., No. 20–843. June 23, 2022


The opinion of the Court issued today begins by reciting that Supreme Court precedent has established the right of “an ordinary, law-abiding citizen to possess a handgun in the home for self defense.”  District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). While the parties to this suit agree that there exists a similar right to carry handguns outside the home, petitioners argue, and the Supreme Court has agreed, that New York’s handgun licensing scheme, which requires that an applicant make a showing of “proper cause” for issuance of a license, violates the Second and Fourteenth Amendments of the U.S. Constitution.

 

Handguns have been regulated in New York since the early 20th century.  To obtain a license to carry a handgun outside the home, New York requires an applicant to demonstrate that special cause exists that makes a license necessary.  The applicant must show that he or she needs special self protection beyond that which is needed by the general community.  

 

No statute defines the “proper cause” which must be found to exist for a license to be granted, the undefined standard appears to be high, requiring particular threats or danger.  

 

Judicial review of denial of a license is limited.

 

Most states mandate licensing where minimal criteria are met.  New York and six other states confer discretion in licensing.  The most common reason for denial of a discretionary license is failure to demonstrate cause or suitability.  

 

Both petitioners here were awarded limited licenses that forbade carrying a concealed weapon in public spaces.  Unlimited licensing was denied before of a perceived failure to meet the “proper cause” standing by demonstrating a “unique need for self-defense.”  Slip Op. at 7.

 

As the United States Court of Appeals for the Second Circuit had previously upheld New York’s “proper cause” standard as advancing an “important government interest,” petitioners failed to obtain relief in the Second Circuit.

 

Today the Supreme Court rejected the line of cases subsequent to Heller and McDonald that have applied history and means-end scrutiny in Second Amendment cases. 

 

Today the Supreme Court announced that the Second Amendment presumptively protects conduct covered in the plain text of the Second Amendment. Regulation –no matter how important the government cause – is impermissible unless it is consistent with historical firearm regulation.  Slip Op. at 8. 

 

Post-Heller, post-McDonald analyses have looked at whether a regulation falls outside core Second Amendment protection, through historical analysis.  Regulations not within this scope do not enjoy Second Amendment protection.  Where there is ambiguity or insufficient history to inform consideration, however, the courts look to whether a regulation addresses activity close to the core Second Amendment right and “how severely the regulation burdens that right.”  Kanter v. Barr, 919 F. 3d 437, 441 (7th Cir. 2019). 

 

The “core” Second Amendment protection is self defense in the home, the Circuit Courts of Appeal have conceded, with some exceptions.  Outside the home, regulations, if not seen as “core,” require strict scrutiny. Non-core regulation needs to meet only intermediate scrutiny.  

 

In today’s case, the Supreme Court rejects this analytical scheme notwithstanding tha the parties agree to it.  Ensuring that any asserted interest reflected in the text of the Second Amendment, in accordance with history, is correct. Any further analysis need not apply means-end dissection but the regulating government entity must show that the regulation under consideration is historically sound, refecting “the outer bounds of the right to keep and bear arms.”  Slip Op. at 10.  

 

The historically informed textual analysis reflects the Court’s determination that the Second Amendment is not novel but that it represents codification of an existing right.  Historic support for any analysis may be found in legal scholarship; 19th century case law, Congressional and public discourse, and post-civil war commentary.  

 

The Supreme Court today emphasized that the Heller decision, informed by history, focused on the extremity of a ban on all handguns.  

 

The difficulty with judicial means-ends testing is that the enumerated rights within the Second Amendment removes decision making power from the government, including the courts.  Slip Op. at 14. 

 

With respect to enumerated rights, “the Supreme Court observed in Heller:   “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Heller, 554 U.S. at 634.  Judicial deference to legislative determinations in applying means-ends analysis overlooks, and in so doing overrides, the means-ends analysis the people already made in enumerating a Constitutional right.  Slip Op. at 17. 

 

Today’s opinion, without equivocation, makes clear that regulation of enumerate rights requires the government to prove that any action with respect to those rights is constitutional.  This will ordinarily call on history.  

 

The New York State Pistol and Rifle Ass’n decision does not shirk from undertaking the review of history that the Court today commended to the inferior appellate and trial courts.  

 

The Court’s review prompted the Court to conclude that prior to the Civil War, carrying firearms in public was regulated, sometimes included surety statutes that incentivized safety, and sometimes restricted carrying firearms provided carrying was generally permissible.  

 

The Court’s review did not find a home in history for New York’s imposition of a “proper cause” requirement:  law-abiding, ordinary citizens have not, historically, been precluded from carrying arms in public for self-defense.  Slip. Op. at 51.  Only a very few, ‘outlier’ laws and decisions would support New York’s position, and such laws and decisions, sometimes limited by the very transitory nature of the territories in which they were found, were not enough to counterbalance the overarching ordinariness of carrying arms for self defense.

 

Emancipation brought with it the recognition that all freed slaves must be able to access all rights enjoyed by others, a recognition often staunchly resisted in practice.  Yet this struggle, in the Court’s view, only underscored the importance of being able to bear arms for self defense.

 

The Court’s review compelled its conclusion that the state failed to meet its burden of finding a tradition that would justify the ‘proper cause’ requirement:  “The Second Amendment guaranteed to all Americans the right to bear commonly used arms in public subject to certain reasonable, well defined restrictions.”  Heller, 554 U.S. at 581.  

 

Valid restrictions include considering the intent accompanying carrying arms, the manner of carrying, or exceptions to carrying, such as before government officials.  Other than the outliers noted by the Court, governments have not required applicants for licensure to demonstrate a need for self defense that exceeds that of the public generally.  Slip Op. at 62. 

 

The Court stressed that the right to bear arms in public for self defense is not inferior to other rights, nor is the Second Amendment subject to rules not applicable to other guarantees in the Bill of Rights. No requirement exists that a citizen must demonstrate to a government a special need to exercise any such right.  Slip. Op. at 63.  

 

The “proper cause” requirement violates the Fourteenth Amendment as it inhibits citizens form exercising Second Amendment rights, the Court has concluded.  

 

Justice Alito wrote a separate concurrence in counterpoint to the dissent, observing that the dissent seems to have wandered afar from the determination that central to the Second Amendment is the right to self-protection, within or without the home.

 

Recitations of catastrophic events or crimes involving guns is immaterial to the Court’s core concern in this case, nor is judicial arrogation of analysis of an enumerated right by means-end analysis of utility where the core principle is a guarantee against government intrusion, including intrusion by the courts.

 

Justice Kavanaugh, with Chief Justice Roberts concurred in the Court’s perception that the text, history, and tradition test iterated in Heller and McDonald is to be applied in determining whether  order to understand the  government regulation impedes exercise of the Second Amendment right to carry guns for self-defense. 

 

The two concurring justices noted that the instant decision does not disturb any mandatory licensing schemes.  Those remain intact.  In this case the discretion conferred by New York’s statute unconstitutionally impairs, by demanding special justification, exercise of a guaranteed right to self defense.  

 

Recognition of the right to self defense by carrying a gun does not prohibit recognition that some persons and some settings preclude possession and carrying of guns nor does it preclude imposition conditions on sale of weapons.  Finally, the two justices noted that the opinion concerns weapons that were in use at the time the Second Amendment was adopted. 

 

Justice Barrett concurred separately to note that the Court left open and unresolved proper approaches to post-ratification practices as they bear on original meanings of the Constitution.  Of equal significance is the Court’s failure to resolve in this case whether courts ought to rely on understandings of an individual right at the time of the Bill of Rights or at the ratification of the Fourteenth Amendment.  Readers ought not take the opinion to endorse “freewheeling” references to history across the 19th century in order to understand the original meaning of the Bill of Rights. 

 

Justice Breyer, with Justices Sotomayor and Kagan, have dissented, lamenting the gun deaths that plague the United States.  The Court ought not to have opined in this case without a trial, without an opportunity to develop a record that would illustrate the state’s compelling need for regulation in order to prevent gun violence, or without consideration of the dangers of guns.  

 

The dissenters examine not only the perceived need to regulate gun carrying in an effort to restrain gun violence but also suggest, through the presentation of other historical views, that the majority’s review may have been incomplete.  

 

20-843 New York State Rifle & Pistol Assn., Inc. v. Bruen (06_23_2022)

If Maine Subsidizes Secondary Schools, It May Not Exclude Sectarian Schools, Supreme Court Concludes


CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v. MAKIN, No.  20-1088.  U.S. Supreme Court June 21, 2022.


Maine is the most rural state in the nation.  Some geographic “School Administrative Units” have no public secondary schools through which to provide the education promised by the state. To ameliorate the strain families who must make arrangements for their children, Maine offers tuition assistance to parents so that their children may access secondary education through qualified schools outside the geographic confines of the School Administrative Units.

At one time, Maine did not distinguish between sectarian and non-sectarian schools for purposes of funding parents’ preferences.  In 1981, Maine determined that this practice was in violation of the Establishment Clause of the First Amendment.

Parents who selected schools with religious orientation challenged Maine’s denial of tuition assistance as violative of the First Amendment Free Exercise Clause, triggering what appears to be an annual (or at least semi-annual) head on collision between the Establishment Clause, which precludes government endorsement of religion, and the Free Exercise Clause, which forbids government interference with religious practice.

While the petitioners’ litigation was pending, the Supreme Court struck down a Montana statute that forbade aid to any church controlled school as offensive to the Free Exercise Clause.   Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020).  While this removed from the consideration of the U.S. Court of Appeals for the First Circuit any reliance on prior precedent that would affirm Maine’s refusal to provide tuition assistance that would permit students to attend sectarian schools.

Nonetheless, the First Circuit distinguished away Espinoza because Maine, unlike Montana, concerned itself with religious use of funds as opposed to a blanket prohibition based on religious identify. Moreover, the First Circuit perceived another distinguishable difference between Montana and Maine, because Maine intends to provide the equivalent of a public school education not otherwise available in a student’s location.  As public school education is secular, no constitutional harm is done by limiting tuition assistance to parents whose children will attend secular schools.

The Supreme Court’s majority has concluded that the Maine tuition assistance scheme fails to comport with the Free Exercise Clause because it conditions the availability of an otherwise available public benefit based on a requirement of ‘non-sectarianism’ within accredited schools.

That the Free Exercise Clause prohibits indirect burdens on religious exercise has recently been re-emphasized by the Court, not only with respect to participation in public contracts, as in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), but also with respect to providing funding assistance to private education, as in Espinoza, supra.  In neither case can religion be interposed as a disqualifier precluding access to benefits otherwise available to all. 

The Court noted that a state need not fund private education.  If a state chooses to do so, however, the state may not preclude participation because of religious affiliation. 

In dissent, Justice Breyer expressed fear that the majority view — which requires other citizens to subsidize, through taxation — aid to religious views they might find objectionable — threatens to foment the kind of discord that the tension between the Establishment and Free Exercise Clauses were intended to inhibit.  This is all the more so in this case, where not just religious affiliation but religious instruction within the curriculum is in issue. 

In Justice Breyer’s view, the Religion Clauses serve the nation well by precluding state involvement in religion and by prohibiting state restraint of religion.

Justice Breyer sees the majority’s decision as introducing religion into public education, the provision of which is contemplated by Maine’s statutory scheme.  

Notwithstanding the not infrequent tension between the religion clauses, their overall purpose is to function as complements in creating a government that is benevolently neutral. The Court has previously expressed that the Religion Clauses ”permit religious exercise..without sponsorship or interference,” as this would “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).  

Separately dissenting, Justice Sotomayor has expressed dismay that the Court has chartered a dangerous course, essentially eviscerating the Establishment Clause in service of the Free Exercise Clause.  Justice Sotomayor observes that, rather than stressing that the government need not fund religious activity, the Court has embraced the idea that the states may now be compelled “to subsidize religious indoctrination with taxpayer dollars.”  Sotomayor, J., Dissent, Slip. Op. at 3.

Carson v. Makin, 596 U.S. ____ (2022)

Supreme Court Vacates Stay of Injunction Precluding Effectiveness of Texas’ Law Addressing Perceived Social Media Censorship

Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.



Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law. 

Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent.  Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.  

The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.

Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.

Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs. 

The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.

Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch.  Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.

Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022

The Eleventh Circuit Opines that Much of Florida’s New Regulation of Social Media May Violate the First Amendment, in Contrast to Recent Orders of the Fifth Circuit to the Contrary Now Awaiting Emergency Review in the Supreme Court


NetChoice, LLC and Computer & Communications Industry Association, d/b/a CCIA v. Attorney General of the State of Florida, et al., No. 21-12355 (11th Cir.) Order and Opinion issued May 23, 2022, affirming in part and vacating in part an injunction issued by the United States District Court for the Northern District of Florida.


Several states, including Florida and Texas, have enacted legislation aimed at compelling social media to be open to all, without banning, de-prioritizing, or de-platforming entities or posts because they present disfavored views. Texas’s law applies to the general practices of large social media sites, while Florida has addressed access by political candidates and journalists.

When the U.S. Court of Appeals for the Fifth Circuit refused to enjoin the effectiveness of Texas’s statute, NetChoice and CCIA presented an emergency petition to the U.S. Supreme Court on May 13, 2022. Just as briefing closed on the emergency petition, the Eleventh Circuit issued its opinion, which has been added to the record of the emergency petition as supplemental authority.

Unlike the Fifth Circuit, holding its legal cards close to the vest, so to speak, and issuing a non-unanimous order without opinion, the Eleventh Circuit has published a 67 page opinion examining whether it is likely that NetChoice and CCIA will succeed in demonstrating that Florida’s law is unconstitutional. Concluding that it is likely that the law will be shown to be unconstitutional, and observing that ongoing infringements of First Amendment rights are presumed to cause irreparable harm, and noting that neither the state nor the public has any interest in enforcing unconstitutional law, the Eleventh Circuit has upheld most, but not all, of the injunctive relief granted by the Northern District of Florida.

Principles Endure. The Eleventh Circuit opened its opinion by noting that new principles are not necessarily needed when new technologies emerge. The First Amendment continues to prohibit government interference in speech while protecting the speech of private actors.

‘Not Really Private’ Private Entities. Florida asserts that social media platforms are not truly private entities and has enacted legislation prohibiting de-platforming political candidates, de-prioritizing messages about political candidates, or removing content provided by an “journalistic enterprises” because of its content.

The Eleventh Circuit Disagrees. The appellate court has found that social media entities are private actors that enjoy First Amendment protections. Editorial judgement about content are protected. That protection would be unconstitutionally burdened by Florida’s legislation, not only in its editorial and content-based directives but also in its demands for disclosure of a rationale supporting any and all content moderation decisions. These observations support enjoining aspects of the Florida law.

How It Works. The Eleventh Circuit has offered a ‘primer’ about what social media platforms are” collectors of others’ speech, broadly defined to include text, photography, and video “posts” published to others. Platforms may have billions of users or exist as smaller sites for specialized interests. Several social media platforms are household names: Facebook, Twitter, and YouTube.

Private Enterprises, Private Choices. No one is obliged to avail themselves of the content social media entities provide. The government cannot restrict citizens’ access to social media platforms but that right of access attaching to citizens does not include a right to compel the platforms to accept or consume any content.

Whose Speech Is It? Much, if not most, speech on social media platforms is not created by the platforms themselves, but some speech belongs to the platforms, as is the case with publishing terms of service or community standards defining what is permitted, or creating addenda or warning, or publish a platform’s own content.

Neither Conduits nor Storage Devices, but Curators. Social media enterprises are best seen as curators and arrangers of content according to users’ wishes, while at the same time removing content that violates the terms of service or community standards.

These activities make the platforms active intermediaries who have created virtual spaces where participants can be both speakers and listeners.

The Eleventh Circuit views content moderation as curation that promotes the creation and development of niches and communities, and promotes values and points of view.

Why Florida Sought Legislative Intervention. Florida’s social media legislation was intended to address perceived silencing of conservative views by technology ‘oligarchs’.

Florida perceives social media platforms to be akin to public utilities which, as common carriers, are to remain accessible to all and to viewpoints.

Sweeping and Problematic. The Eleventh Circuit notes that Florida’s law, while aimed at “big tech oligarchs,” as defined by size and revenue, does sweep in smaller sites, such as Wikipedia and Etsy. An initial specific exclusion of Disney Corporation was repealed.

Three features of the Florida legislation are problematic, in the appellate court’s view: content moderation, disclosure obligations, and user data retention.

Strict in Theory, Fatal in Fact. The Eleventh Circuit perceives that Florida’s legislation regulates speech within the meaning of the First Amendment, and its content moderation provisions are subject to strict scrutiny, making it unlikely the legislation will survive.

Pre-Emption Awaits Another Day. As the court based its analysis on the First Amendment, it is not necessary to consider the issue of federal preemption of the Florida law by 47 U.S.C. Section 230.

Gutting Editorial Discretion. Denying social media platforms the ability to prohibit some posts, as the Florida law does, impairs the very exercise of discretion that the First Amendment prohibits, the Eleventh Circuit observes.

Not an Indiscriminate Host. The notion that by opening a social media space to some — essentially serving as a host to speakers — a social media enterprise must open that speech to all, following historic decisions, failed to persuade the Eleventh Circuit with respect to the Florida legislation.

Social Media’s Own Speech. If the issue of mandating open doors and open access were not enough to impair the social media companies’ editorial discretion, and by extension, their First Amendment rights, the Florida law, in the court’s view, impedes the platforms’ capacity to exercise their own speech rights.

Common Carrier Analogy Fails. Seeking to minimize the impact of First Amendment review, the state has relied heavily on the notion that social media platforms are common carriers indefensible to society, an idea rejected by the Eleventh Circuit notwithstanding that the court was uncertain whether the state asserts that the common carrier status has already been attained or whether the state would legislate that status into existence.

Social media platforms do not behave as common carriers available to all to transmit communications of their own choosing, the Eleventh Circuit observes. Social media platforms may appear to be open to all but in fact users must accept the platforms’ terms and community standards. Moreover, Supreme Court opinions have not considered cable operators to be common carriers, and the Court has declined to place online media on the same footing as broadcast media for supervisory and regulatory purposes.

The Eleventh Circuit sees that online platforms as analogous to cable providers that retain editorial discretion over their offerings.

Finally, Congress has specifically distinguished and exempted internet services form other communications media in the Telecommunications Act of 1996 and within the same legislation has protected social media from liability for publication in ways not extended to common carriers that must serve all, the Eleventh Circuit reasoned.

What Part of “Constitutional Guarantees” Did Florida Not Understand? If the social media platforms are not already common carriers, which the appellate court finds they are not, the state possesses no power to legislate the platforms’ First Amendment rights out of existence by nomenclature. Even if the social media platforms’ vast market powers suggest that they ought to be treated as common carriers, this would not carry the day. Legislation cannot create in social media the fundamental characteristics inherent in and required of common carriers to hold themselves out to the entirely of the public, without exception. While some entitles may come to be a means of rendering services of public interest, marketplace success in itself will not compel forfeiture of First Amendment rights.

The exercise of expressive editorial judgment by the social media platforms means that those platforms are not common carriers. Any imposition of limits on their First Amendment rights must survive strict scrutiny, which, with some exceptions, is not the case with Florida’s law.

The Nature of the Violations. Florida’s law would restrict editorial judgment through forbidding de-platforming political candidates, manipulating the presentation of content by or about candidates, and censoring or manipulating journalistic enterprises. Legislatively requiring consistency in decision- making and imposing time limits on restrictions present similar, if less obvious, impositions on social media platforms.

Permitting users to opt out of the platforms’ curation would interfere with the editorial processes and discretion exercise by the platforms to those users.

Compelled disclosures of platform activities inherently burden editorial judgment, but such commercial disclosures are subject to lesser scrutiny.

The Eleventh Circuit finds no First Amendment issues arise with respect to requiring platforms to permit users to access their stored records for at least sixty days after de-platforming.

Gimlet Eye or Casual Glance: Standards of Review. Content based speech regulations must survive strict scrutiny. While the state has admitted that the aim of its legislation is to address perceived mistreatment of conservatives and conservative views, this does not persuade the Eleventh Circuit to adopt the technology associations’ argument that this causes the entirety of the legislation to fail.

The state’s motivation in enacting legislation is not outcome determinative in review of an otherwise facially constitutional law. Moreover, the applicability of the law to some social media platforms and not others, while of concern, is insufficient to condemn the legislation in its entirety.

The Eleventh Circuit’s Reasoning. The appellate panel has concluded that NetChoice and CCIA may succeed on the merits of their content moderation claims. As some provisions refer specifically to content messaging, those trigger strict scrutiny, whereas de-platforming and opt-outs are neutral.

The “consistency” demanded of the social media platforms partakes both of content-based and neutral regulation. Because at their core they involve expressive activity, intermediary scrutiny is triggered, but even at that level, they are not likely to survive.

Disclosure of factual information in commercial settings need not meet even intermediate scrutiny, and may be reviewed on a rational relationship basis, making those regulations likely to survive.

The Eleventh Circuit has concluded that none of the content moderation measures would survive intermediate scrutiny and that the ‘explanatory’ disclosure requirements — why decisions were made — is likely unconstitutional. However,there is no likelihood of success on the merits of the rest of the legislation.

When intermediate scrutiny is applied to the legislation’s content moderation restrictions, the court is asked to consider whether the content moderation restrictions are narrowly drawn, that is, no greater than is essential, to further a substantial government interest unrelated to speech suppression.

The content moderation restrictions do not, in the court’s view, further any substantial government interest, which does not seem to have been seriously argued by the state. (Slip op. at 53.)

While it might be that the state, had they pursued such arguments, would claim an interest in curtailing private censorship, or in fostering use of of the internet, the government has no interest in “leveling the expressive playing field,” nor may it intervene where there is no right to a social media account.

The idea of restricting the speech of some to enlarge the voices of others is “wholly foreign to the First Amendment,” the Eleventh Circuit has concluded. (Slip op. at 59, quoting Buckley v. Valeo, 424, U.S. 1, 48-49 (1976)).

The assertion of a state interest in “promoting the widespread dissemination of information from a multiplicity of sources” would fail, as social media platforms do not act as gatekeepers, exercising control over most or all information. (Slip. Op. at 49, quoting Turning Broadcasting System v. FCC, 512 U.S. 622, 662 (1994).) A wealth of communications resources exist and are available to speakers Even if they are not of the magnitude of the social media platforms, this does not justify inhibiting the speech rights of private social media companies as the Florida law would do.

Moreover, the appellate court thinks it unlikely that the government has an interest in private utilities’ consistent application of rules or in prohibiting users from changing messages within certain time frames, in addressing sequencing of content, or in permitting or precluding participation in these processes.

Even if a substantial government interest were found, there is little likelihood that the preclusive restrictions and mandated activities are “no greater than is essential to the furtherance of interests.” (Slip op. at 61, citing United States v. O’Brien, 391 U.S. 367, 377 (1968).

Prohibitions on “deplatforming, deprioritizing, or shadow-banning” would make it impossible to address obscenities or terrorist threats, and indeed raises the specter of minors’ access to pornography. (Slip op. at 62). This wide a sweep stands the narrowness constraints applicable to legislation of speech regulations on its head, the court concludes.

Compelled disclosures. Disclosure requirements will survive constitutional scrutiny if as commercial speech they are related to protection of consumers, which is a recognized state interest, and are not unjustified or unduly burdensome, effectively chilling protected speech. (Slip op. at 63, citing Milavetz, Gallop & Milavetz v. United States, 559 U.S. 229, 250 (2010).

An exception to the likely unconstitutional disclosure requirements is requiring that information be provided to consumers about the terms of access to the platform and that the content moderation policies are not misleading. The court observed that there has not been a sufficient showing that publications of standards or that providing information about rules changes, views, and advertising information would be unduly burdensome.

The court has agreed with NetChoice that requiring detailed justification for and notice of each content moderation is likely unconstitutional even under commercial speech standards. The time constraints, compliance burdens, and prohibitive fines for insufficient “thoroughness” compound those burdens.

And in Conclusion. The remaining factors requiring review to substantiate injunctive relief are easily met, the Eleventh Circuit has determined. Ongoing First Amendment violations are presumptively irreparably harmful, and neither the state nor the public has any interest in enforcing an unconstitutional statute.

The district court’s order will be upheld in part and vacated in part, and the case remanded.

WHERE MATTERS STAND. JustLawful is not sage enough to know what the Supreme Court will do now that there is an apparent, if only partially articulated, conflict between two federal circuit courts of appeal. Others’ prognostications are welcomed.

In a Nutshell. Here is a link to the Eleventh Circuit’s synopsis of its parsing of the Florida statute.

Summary 11th Cir. Opinion

And in Full:

Here is the entire opinion.

NetChoice v. Florida No. 21-12355 (11th Cir.) Opinion May 23, 2022

 

Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Federal Officials Cannot Evade First Amendment Constraints on Speech Suppression Through Intimidation and Collusion with Internet Platforms, or Creation of an Unauthorized Disinformation Governance Board, State Attorney Generals Assert in Suit Against an Array of Federal Officials


Missouri and Louisiana v. Biden, et al.., No. 3:22-cv-01213-TAD-KDM (W.D. La.).  Complaint filed May 5, 2022.

Missouri and Louisiana v. Biden, et al., No. 3 22-cv- 01213 (W.D. La.) Complaint filed May 5, 2022

Missouri and Louisiana Attorney Generals, claiming injury to state constitutional interests and to state citizens’ speech freedoms, have filed a complaint against President Biden and multiple executive officials and federal agency heads, asserting that the Biden administration has colluded with technology platforms such as Facebook, YouTube, and Twitter in order to suppress and censor information unfavorable to federal government aims.  The recent creation of a bureaucratic governing board to manage removal of disfavored speech only advances these unconstitutional practices, the state plaintiffs say.

Plaintiffs seek declaratory relief declaring the administration’s actions violate the First Amendment as well as injunctive relief forbidding further unconstitutional activity.

The First Amendment serves as the cornerstone of the free exchange of ideas of information, without which competent self governance is impossible, the states say.  The federal government is constrained by the First Amendment from interfering with the guaranteed freedoms embodied in the First Amendment, including speech freedoms.  The government cannot escape its obligation to refrain from inhibiting speech by engaging private entities to censor speech.

Although the First Amendment does not ordinarily reach private actors, acts undertaken at the behest of or in collusion with the government may violate the First Amendment.  This is particularly so, the plaintiffs state, where the federal government has coerced private entities to cooperate with the government by means of threats of antitrust proceedings or revocation of immunities enjoyed under Section 230 of the Communications Decency Act of 1996.

Truncating the flow of information to suit federal officials’ aims impairs states in protecting the interests of state citizens, particularly where state constitutions may secure more expansive speech protections that the United States Constitution, plaintiffs claim.

The Complaint filed on May 5 in the United States District Court for the Western District of Louisiana details instances in which, either directly or in collusion with technology platforms, federal officials have acted to suppress speech, serving their own political ends to the injury and detriment of the public, frequently cloaking their actions as attempts to guard against undefined and opaque “disinformation.”

Threats of antitrust actions or threats of loss of immunities have ensured technology companies’ compliance with federal officials’ dictates.   The adoption of facially private governing documents and policies that in fact are employed to serve the government, and which may operate in collusion with the government, cannot be interposed to shield either private or public actors from liability for suppressing and chilling speech.

An atmosphere of intimidation pervades social media sites, plaintiffs observe. Undertaken in fear of or in collusion with federal officials, the private companies’ practices of banning, shadow banning, limiting publication, and outright removal of social media account holders create unconstitutional prior restraints, chilling participation lest a similar fate ensue.

The state plaintiffs’ Complaint provides a chronicle of activity asserted to constitute First Amendment violations. If true, the plaintiffs’ allegations paint a picture of a government intent on serving its ends and not those of the public they were elected or appointed to serve.  Digital media fail to behave as an ‘electronic public square’ where those media represent an unparalleled “concentrated control” of speech.  Complaint, para. 53, citing Knight First Amendment Institute, 141 S. Ct. 1220, 1221 (2021).

Federal officials have conferred with private digital platforms to advise the platforms about content that ought to be flagged for removal, plaintiffs state.

Online platforms accomplish speech monitoring by means such as mechanical algorithms or outright speech suppression by permanent banishment of disfavored speakers, the plaintiffs offer, thereby denying the exiled any ability to communicate publicly.  Such measures not infrequently censor core political speech, to the detriment of political opponents and to the benefit of those directing the private companies’ actions.

Examples of digital platforms’ interference with First Amendment speech guarantees, undertaken to please or to appease federal officials have included suppression of information about location of the President’s son’s laptop, said to contain damaging information, on the eve of the Presidential election.

Plaintiffs aver that open discussion of the origins of the Covid-19 virus was precluded where, by agreement with a social media platform, a federal official who had been engaged in funding gain of function research abroad provided messaging favoring a government narrative which insulated the government and the official from review.

Relevant evidence that would permit public evaluation of the efficacy of face masks and government edicts demanding home confinement was also suppressed, plaintiffs submit.

The promotion of narratives favoring voting by mail, a methodology traditionally dismissed as inviting voter fraud, has also been alleged to involve social media.

Both the Executive and the Legislative branches have threatened technology companies directly and publicly, at times demanding removal of political opponents’ statements.

The recent creation of a board to govern “disinformation” is an Orwellian measure intended to withhold content from the public and to insulate the federal government from criticism, plaintiffs insist.   This has been done notwithstanding that there exists a constitutional guarantee of free speech, such guarantee not to be interfered with by curating and removing from public discourse that which disfavors the government.

Similarly dystopian, plaintiffs observe, is the view that speech is not speech but infrastructure, and thus susceptible of government regulation and oversight.  To this has been added the opinion that the public reacts emotionally and thoughtlessly to speech, and that speech is linked to violence, requiring online policing to protect the public.  One legislator has suggested that the public lacks the capacity to discern fact from fiction, a circumstance not to be addressed by providing more information, but instead, in the view of current federal officials, less information or none at all.

These activities, whether singularly or in combination, violate the First Amendment and severely damage public discourse, the plaintiffs say, causing sufficient danger to open discourse as to merit an injunction against further constitutional violations.

A Grand Old (Private) Flag at Boston City Hall: Supreme Court Clarifies Establishment and Speech Clause Interests


Shurtleff v. City of Boston, No. 20-1800, 595 U.S.      (May 2, 2022)


Private Flag Permitting at Boston’s City Hall Plaza.  Three flagpoles are situated on the public plaza surrounding Boston City Hall.  These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts.  At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.

Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.  

A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution.  Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained. 

Constitutional Purposes and Constraints.  Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States.   The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors.  The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”   

Clauses on a Collision Course, or So It Sometimes Seems.  Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error.  However, the Establishment Clause applies only to government action.  Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted. 

Justice Breyer’s Judicial Opening Farewell.  Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed.  Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.  

Government speech and government created forums must be distinguished, he wrote.  A government created forum must be open to all without restriction based on viewpoint.  Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.  

This is all very clear until it is not.  In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment.  On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination. 

Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech. 

Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.”  Slip. Op. at 6.  Introducing its approach, the Court offered:

Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Slip Op. at 2. 

In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion.  The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case. 

Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future. 

A brief reiteration:  Justice Kavanaugh concurs.  This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity.  All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities. 

The end may be all right, but the means, not so much.  Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion.   Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion.  Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity. 

Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers.  The critical question is who the speaker is.  The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis.  No such test can be found.  The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.  

Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship.   Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.  

…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application. 

Alito concurrence in judgment, Slip. Op. 4

While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter.  An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional. 

A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation,  who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own. 

The issue is not simply one of fashioning an analysis, Justice Alito stresses.  Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship. 

Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.

Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech.  There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech. 

The Unbearable Persistence of Lemon.  Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.

Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:

“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.   

Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)

20-1800_Shurtleff v. Boston, 595 U.S. (May 2, 2022)

Last Rights:  Supreme Court Concludes Death Row Inmate May Succeed in Asserting Undue Burden of His Religious Exercise Because State Denied Request for Minister’s Presence, Audible Prayer, and Touch During Execution 

Ramirez v. Collier, Executive Director, Texas Department of Criminal Justice, No. 21-5592, 595 U.S. ____ (March 24, 2022).  Opinion awarding petitioner Ramirez injunctive relief, reversing the decision of the Fifth Circuit affirming denial of a stay of execution, and remanding the case for further proceedings.


In 2004, John Ramirez stabbed Corpus Christi convenience store worker Pablo Castro twenty-nine times, an act that killed Castro and yielded $1.25 for Ramirez and his accomplice.

 

Ramirez fled the United States, but was apprehended near the Mexican border several years later, then was convicted of murder in the course of roberty, a capital offense.

 

Ramirez has assiduously yet unsuccessfully sought relief from his conviction.

 

Ramirez has sought to stay his execution because the State of Texas has denied him the presence of his spiritual advisor during his execution to provide audible prayer and to touch Ramirez during administration of lethal injections.  

 

Texas has promulgated several policies concerning the presence of religious advisors during executions. Although at times Texas has precluded all spiritual advisors from being present in the execution chamber, Texas has revised its protocols to permit the presence of spiritual advisors in the execution chamber.  

 

Ramirez grieved the state’s denial of his request that his spiritual advisor be permitted to pray aloud and to lay hands on Ramirez during Ramirez’s execution.  

 

Ramirez asked the United States Supreme Court to preliminarily enjoin the state from executing him prior to resolution of his claim under the Religious Land Use and Institutional Persons Act (RLUIPA).

 

RLUIPA provides religious free exercise protections that, because of the act’s procedural structure, may be more adventitious to claimants than First Amendment claims.  RLUIPA requires the state to demonstrate that a substantial burden on the exercise of a sincere religious belief must meet “strict scrutiny” standards even if the law in question is one of general applicability.  

 

The Supreme Court in Ramirez’s case perceives that Ramirez’s request that his pastor be present, pray audibly, and lay hands on him as he is executed reflects a sincerely held religious belief.

 

The Court has concluded that Texas cannot substantiate its revocation of the time honored practice of vocal prayer because, as Texas asserts, there exists a compelling government interest in being able to minotaur sound within the execution chamber, which, the state posits could be hampered by audible prayer.  

 

The Court agreed that the interest exists but the state had not shown that a categorical ban on all audible prayer in the execution chamber is the least restrictive means of advancing that interest. 

 

Similarly, the Court acknowledged that Texas has a compelling interest in avoiding disruption in the execution chamber.  However, the Court found that because there exists in this case no indication that disruption might occur, a hypothesized fear could not meet the state’s burden. 

 

By tailor making the execution to suit the prisoner’s needs and to permit monitoring, to limit touch to areas that would not interfere with the procedure,  and to avoid disruption, the minister could be permitted to address the inmate only, subject to immediate removal upon any failure to comply with the rules.  These measures are less restrictive means through which Texas might advance the state’s interest.

 

Having concluded that Ramirez is likely to succeed on the merits of his case, the Court next concluded that if the Court failed to provide injunctive relief that Ramire would suffer irreparable harm, as he would be barred from exercising his faith in the last moments of his life. 

 

The public interest will not be harmed by granting relief in this case, as Ramirez does not seek an indefinite stay, and there is a strong public interest – as evidenced by the enactment of RLUIPA – in ensuring that prisoners subject to execution are not concomitantly subjected to undue burdens on their religious exercise. 

 

The Court dismissed Texas’s argument that Ramirez’s inequitable conduct should bar injunctive relief.  In the Court’s assessment, Ramirez has diligently asserted and pursued his claim and has not made a late claim on long known facts to manipulate or to cause delay rather than to seek redress. 

 

As RLUIPA claims are case specific, the Court has urged the states to adopt policies to address claims through a reasonable request process as well as to provide procedural training for spiritual advisors. 

 

As Ramirez succeeded in persuading the court that he is worthy of injunctive relief, the decision of the Fifth Circuit has been reversed, and the case has been remanded for further proceedings consistent with the Court’s opinion.

 

Matters Would Go Better if All Played Their Parts Better.  Justice Sotomayor, having joined in the opinion, has written separately to emphasize that both inmate and prisons administration must comply with not only RLUIPA, but also, with particular emphasis on the prison’s obligations, with the Prison Litigation Reform Act (PLRA).  All concerned, but especially Institutions administering process and procedures, must ensure that redress is available and accessible and that delay not be permitted to frustrate proceedings unduly.  

 

Accommodate, Don’t Litigate.  Justice Kavanaguh concurred separately, noting the emergence of religious exercise and religious equality claims in death penalty case, and commenting upon the difficulties the Court faces in defining not only conpelling interest but also refining the relative restrictivess of measure os addressing compelling interests.

 

Justice Kavanaugh urged the states to realize that much could be accomplished and a good deal of harm could be avoided if the states were to accommodate inmenat’s requests where it is possible to do so without sacrificing the states’ “compelling interests in safety, security, and solemnity,” as so doing would avoid litigation and aid in bringing closure to victims’ families. 

 

Doubting (Justice) Thomas. Justice Thomas dissented from the Court’s opinion, citing not only the violent nature of Ramirez’s crime, but also his evasion of responsibility, and what Justice Thoams perceived to be a strategic change in position to achieve delay.

 

Justice Thomas noted that Ramirez’s engagement in delay and manipulation has frustrated the state’s and the public’s interests in how justice ought to be served.  Moreover, Ramirez has caused repeated injury to victims, as each time a date of execution has been set, Ramirez has evaded it. 

 

Although Ramirez did not engage in a last minute flurry of filing claims, he did engage in piecemeal and persistent pursuit of claims, changing tactics as needed to seek his goal:  delay. 

 

Neither strategy is more or less inequitable than the other, in Justice Thomas’s view.

 

Justice Thomas found no merit in the view that Ramirez’s advancing a claim relating to a ‘traditional’ religions ritual supports the conclusion that is claim is sincere, particularly as the orthodoxy of a practice has no bearing on First Amendment protection.

 

Justice Thomas found Ramirez’s failure to comply with the Prison Litigation REform Act (PLRA) is fatal to his bid for relief before the Supreme Court.  Ramirez was obliged to, but did not, engage in informal resolution of his audible prayer claim nor did he mention the audible prayer claim in his grievance, precluding the state’s adjudication of his claim.  

 

21-5592 Ramirez v. Collier (03_24_2022)

 

Ramirez v Collier 10 F4th 561Mem 5th Cir 2021