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Civility and Its Discontents: Town Policy Cannot Squelch Assembly and Speech, Massachusetts Supreme Judicial Court Concludes

Barron, et al. v. Kolenda, No. SJC-13284 (March 7, 2023).

Massachusetts highest court recently revisited the Commonwealth’s history without a view toward revisions but with great regard for the ideals of self-governance that gave rise to the state constitution’s guarantees of rights of assembly and speech.  To this day those goals persist, the court found, such that historically raucous and not infrequently personal public gatherings cannot be supplanted by codes of ‘civility’ which would preclude criticism of public officials. 

Massachusetts state law requires its municipalities and towns to conduct business openly, leaving it to the cities and towns to develop rules for public meetings.  The Town of Southborough enacted a policy demanding ‘civility’ in all public speech and forbidding rude criticisms of town officials.

Townsperson Louise Barron, upset with the state level determinations that the town frequently violated the open meeting policies, was open about her feelings before the select board, subsequent to which she was shouted at, called “disgusting,” and threatened with removal by a member of the board.  Exchanges of “Hitler” epithets were observed.

Barron challenged the board’s policy and action, asserting that it violated her rights of assembly and speech.  The Supreme Judicial Court has agreed, finding that both provisions of the state Declaration of Rights ensure public participation in governance free from fear of being silenced or reprisal.  

Those guarantees are steeped in traditions born in the days that the colonies of the new world sought to extricate themselves from the authority of monarchy and install among themselves rights of self governance, such as speech and assembly, which are not lightly to be disturbed absent a compelling state interest and a narrow means of supporting that interest.

Political speech such as that at town meetings is core political speech which cannot be censored — or censured — because it may precipitate discomfort or bad feelings.  As the town’s civility policy directly interfered with the exercise of assembly and petition rights, and as it was so broad and vague as to chill speech, the Supreme Judicial Court found it to be facially unconstitutional.  The policy was both content based — forbidding criticisms of officials — and viewpoint based — forbidding criticism while allowing praise, and, as such, wholly defective.

In addition to striking down the ‘civility’ policy, the Supreme Judicial Court stripped the town officials of qualified immunity, observing that the rights in question were well established and had been interfered with by threats and coercion.  

The case was remanded for further proceedings.  

Barron v. Kolenda, SJC-13284 (March 7, 2023)

 

 

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But Is It Art?  New Hampshire Bakery Resists Town’s Demand to Take Down Donut Mural

Young, et al. v. Town of Conway, No. 23-cv-00070 (N.H.).

Justlawful observation:  one would not be entirely wrong to suspect that bakers are emerging as their own phalanx of champions of constitutional guarantees.  Within recent memory, Gibson’s Bakery challenged Oberlin College in defamation, and prevailed.  Masterpiece Cakeshop continues a sisyphean trek up and down the court house ladders in a quest to find the proper and respectful balance between competing constitutional claims. 

Live Free or Die: Currently a New Hampshire baker asserts he is being damaged because the Town of Conway wants to force him to tear down a huge mural depicting donuts and pastries which was painted for the bakery by local art students.

The town asserts that the mural, which has attracted much favorable attention, is a commercial sign that violates the town’s signage code.

The baker asserts that the town’s interference and demand for removal is content and speaker based discrimination, which is presumptively unconstitutional, and which the town cannot justify.  

Perhaps sensing that the town may be doing itself no favors by treading on the baker and donut art aficionados, the town has stipulated that it will take no action to remove the mural pending resolution of the case on the merits.   

The town’s response to the complaint filed on January 31, 2023, has not yet been submitted. 

Young v. Town of Conway, 23-cv-00070 (N.H.) Verified Complaint

Young v. Town of Conway, 23-cv-00070 (N.H.) Plaintiff’s Memorandum in Support of TRO

imageedit_13_4186924744

Photograph courtesy of Institute for Justice, https://ij.org

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Certiorari Relief Denied Now, but Grant Will Come if Second Circuit Continues to Summarily Affirm Injunctive Orders

Antonyuk v. Superintendent of New York State Police, No. 22A557, 598 U.S. ___(2023).  January 11, 2023.

Justice Alito and Justice Thomas warn the Second Circuit that its practice of summarily affirming trial court injunctions – even if leavened by issuing expedited briefing orders – must stop:  if it does not, the next petition for Supreme Court review will be granted.

22A557 Antonyuk v. Nigrelli (01_11_2023)

 

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Constitutional Cake Wars Continue in Colorado: Baker Found to Have Discriminated Against Transgender Customer

Scardina v. Masterpiece Cakeshop and Jack Phillips, No. 21CA1142 (Colo. App.). Opinion January 26, 2023.

On the day that the U.S. Supreme Court granted certiorari in a case involving Masterpiece Cakeshop and Jack Phillips, petitioner Scardina telephoned the bakery to request a pink cake with blue frosting.  Having secured Phillips’ spouse’s agreement to provide the cake, Scardina stated that the cake was inteded to celebrarte gender transition.

The cake shop and its proprietor then declined to provide the cake. Expressive and religious reasons were cited.

Scardina sued, citing violation of the Colorado Civil Rights Act.

The Colorado Civil Rights Commission settled with Masterpiece Cakeshop and Phillips.  After procedural maneuvers of note only to attorneys, Scardina prevailed in court, and the Colorado Court of Appeals has upheld the trial court’s conclusions.

The Court of Appeals observed Masterpiece Cakeshop’s and Phillips’ refusal to provide the pink cake with blue frosting, because it bore no written message, could not fall within the “offensiveness rule,” a loosely constructed, somewhat doubtful, secular corollary to religious objections.  

The court rejected the compelled speech challenge, observing that not all expressive conduct is protected.  Here, where the cake that admittedly have been provided to others but for the customer’s wants, the court found it impossible to conclude that protected expression was in issue.

The bakery’s and the baker’s objection to being tied to an expression also failed, as the court likened the provision of the cake, even if it could be seen as carrying a message, carried no more connection to a message than would attach to a person who provided balloons for a birthday party.  

While recognizing the Phillips’ deep religious convictions, the Colorado Court of Appeals found that those convictions must yield where a neutral statute of general applicability, like the anti-discrimination law, is involved, and where no additional constitutional right, as intimated in Employment Division v. 0 Smith, 494 U.S. 872 (1990) could be found, no more heightened analysis would be needed.

The appellate court refused to hear concerns about bias in the proceedings below.  Although there were some minor issues concerning pronouns, the appellate court could find no way in which the bakery or the baker had been treated less than civilly.

Scardina v Masterpiece Cakeshop Inc 2023 COA 8 Colo App 2023

 

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“Doctor! Doctor! Give me the news!” Federal court in California says doctors can give patients news without threat of state sanctions for “misinformation,” at least for now.

Hoeg, et al. v. Newsom, 22-cv-1980 (E.D. Cal.); Hoang, et al. v. Attorney General, 22-cv-0214 (E.D. Cal). Order and opinion issued January 25, 2023.

California doctors have alleged that California elected and appointed officials may violate rights protected through 42 U.S.C. Section 1983 by threatening enforcement of a California statute prohibiting the provision of ‘misinformation’ or ‘disinformation’ relating to scientific knowledge and standards, particularly where terms are vague and standards are susceptible of rapid change.

California enacted legislation prohibiting physician dissemination of “misinformation,” defined as false information contrary to scientific consensus.  The statute also prohibits intentional dissemination of misinformation, characterized as “disinformation.”  Both such offenses must occur in the context of the patient-physician relationship.  Violations re considered unprofessional conduct subject to disciplinary action.

The federal district court for the Eastern District of California has observed that plaintiffs’ claims implicate First Amendment “chilling effect” concerns, favoring standing, particularly where self-censorship is implicated.

Standing is liberally construed where statutory vagueness implicates First Amendment interests, as the Supreme Court has held that “the Constitution protects the right to receive information and ideas…”  (citation omitted).

This means that even if a statute does not apply to a person, if the statute interfrers with a right to receive information, standing to challenge that law exists.

Because the members of the associational plaintiffs would have standing to sue individually, the associations have standing.

Unconstitutional vagueness may be found where a statute leaves a speaker in doubt as to what is prohibited, thereby inhibiting speech.

The California statutory scheme provides that violation of the dissemination of misinformation/disinformation standards could be found where the information in issue could be outside “contemporary scientific consensus,” but the court found those terms to be vague as lacking in established meaning, leaving providers to guess what is prohibited.  This is especially so, the court observed, where “scientific consensus” is not fixed but is rapidly changing, subjecting providers to all the more heightened guesswork.

The court noted that precedent indicates that “the changing nature of a medical term’s meaning is evidence of vagueness.” Slip op. at 24. Forbes v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000).  

While no objective meaning of a statute’s term can be found, as is observed of “misinformation,” it is likely that a vagueness challenge will prove successful.

The inclusion of reference to a “standard of care” compounds confusion rather then providing clarification that might save the statute from a vagueness challenge.  Slip op. 15 26, n. 9.  Even if plausibly comprehensible, the statute improperly conflates advice, information and treatment.  Id.

The falsity required to find a disinformation violation is likewise constitutionally defective, the court observed, where what is “settled” is rarely so.

This separate ‘falsity’ element of the statute, even if it were to offer truthfulness as a defense, fails where “drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible,” the court has opined.  This is particularly so, the court noted, where evidence and inquiry is rapidly changing, as in pandemic conditions.  Slip op. at 27.

Any limiting construction proffered fails to save the statute, the court has observed, as the proffered construction would require rewriting the statute.

In granting a preliminary inunction against enforcement of the statute pending resolution on the merits, the court cautioned that its ruling was confined only to the Section 1983 vagueness challenge, and was not intended to reach the merits of the First Amendment claims.

Justlawful note:  If the court did not reach the First Amendment issues here, it is not unfair to say the court came fairly close to so doing.  The court may have its own reasons for guardedness: perhaps it was to dissuade an interlocutory appeal.

Justlawful Copyright Note:  Justlawful very much hopes that Robert Palmer, if he were alive, would consider a citation to his 1978 recording, written by Moon Martin, to be a compliment rather than an infringement,.  Should that hope fail, Justlawful would argue that this limited reference to a well known lyric would be fair use.

Hoeg, et al. v. Newsom and Hoang, et al. v. Attorney General Opinion January 25, 2023

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Faith in the Workplace:  Supreme Court to Consider Standard Employer Must Meet Concerning Employee Requests for Religious Accommodation, as Well as Whether Burdens on Co-Workers May Meet that Standard 

Groff v. DeJoy, No. 22-174.  Certiorari granted January 12, 2023.

Forty five years ago, the Supreme Court opined that an employer need not accommodate and employee’s religious practices where doing so would involve more than a de minimus cost to the employer, as so doing would meet the “undue hardship standard provided in Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. Sections 2000d-2(a)(1),(2).    Trans World Airlines v. Hardison, 432 U.S. 63 (1977).  

The Court will now consider whether the Trans World Airlines v. Hardison standard is met where hardship falls on a claimant’s co-workers rather than the employer and the employer’s business. 

The breadth of prohibitions on discrimination because of religion contemplated by Title VII of the Civil Rights Act is not inconsiderable, as the statute provides that “all aspects of religious observances and practices, as well as belief…” must be accommodated unless to do so would impose an undue hardship on an employers’ business.

Petitioner began working for the United States Postal Service i(USPS) in 2012, and resigned in 2019.  Plaintiff observes a Christian Sabbath on Sundays, which precludes work. 

A contractual arrangement for weekend package delivery between the USPS and Amazon.com, Inc. created an increased demand for weekend postal workers.

Groff was informed that he would have to work on Sundays or lose his job.  Groff refused but offered to work extra on other days.  The employer agreed to elicit volunteers to work Sundays instead of Groff.  The arrangement worked imperfectly for two years.

USPS declined to continue to accommodate Groff during non-peak shifts on Sundays, applying progressive discipline when Groff refused to work.  During peak periods, Groff’s accommodation created additional work for other employees.

With some disagreement, the Third Circuit Court of Appeals concluded that asking the USPS to exempt Groff from Sunday work would create an undue burden on the USPS.  

Advocates for Groff argue that the “more than de minimis” TWA v. Hardison standard weakens prohibitions against religious discrimination, effectively nullifying them and placing religious exemptions on a different footing from other other rights protected by Title VII.

The United States Postmaster General opposes restructuring of religious accommodations through this case, arguing that Title VII is silent respecting “undue hardship,” making the TWA v. Hardison decision sound.

The Postmaster General points to financial necessity as the impetus for agreeing to delivery service for Amazon.  Other employees were directly burdened when they had to work when Groff did not.  

The Postmaster General has submitted that the “undue burden” standard would be met under any circumstances in this case, particularly where acceding to Groff’s demands would violate both the USPS’s agreements with Amazon.com and with the postal workers’ union.  

No briefing order has been issued nor has a date for oral argument been set. 

Groff v. DeJoy, Petition for Certiorari

Groff v. DeJoy Opposition to Certiorari

Groff v. DeJoy, Reply of Petitioner

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Supreme Court Will Review the Nature of True Threats and First Amendment Protections 

Counterman v. Colorado,  No. 22-138.  Certiorari granted January 13, 2023.

The Supreme Court has decided to review a question left unanswered in Elonis v. United States, No. 13-983, 575 U.S. 723 (2015).  If “true threats” are not protected by the First Amendment, then what, if any, state of mind must be present to remove such protections and thereby permit prosecution for stalking or other speech-related matters. 

According to petitioner Counterman, confusion surrounding the standard that existed pre-Elonis has, consistently with a prediction from Justice Alito, exploded post-Elonis, leaving nine federal circuits and eighteen states/jurisdictions requiring objectivity based on what a reasonable hearer would think of the words, with two federal circuits and four states demanding proof that the speaker in question intended a threat.  Another state requires knowledge and two require recklessness.  Nine circuits include states applying conflicting standards.

Colorado illustrates the state-federal conflict in this case. Petitioner was convicted in state court only with reference to objective measures.  Had he been tried in federal court, Counterman’s state of mind – whether he intended a treat – would have been critical to conviction.

The abandonment of any state of mind requirement for speech crimes would, petitioner argues, abandon the First Amendment.  

Petitioner was arrested and charged with stalking after Facebook exchanges caused discomfort in the state’s witness, and he was convicted without reference to whether he was aware that he knew he would cause distress, only that he knew he was sending a message.

Counterman has sought review not only because of the contortions and conflicts among state and federal courts but also because criminal law, which seeks to curb malevolent will, stands in contrast to First Amendment protections, which assure liberty to speak in many ways including unpleasant ways, without fear of criminal prosecution.  

Employing an objective standard – what a hearer, not a speaker, would think – reduces crime to negligence and conflicts with the First amendment as the low standard could criminalize otherwise innocuous, even if offensive, speech.  

The law ought rarely prosecute ‘accidental’ crimes and never countenance ‘accidental’ speech crimes.  The latter from the outset would chill otherwise permissible speech.  A state of mind requirement permits a speaker to speak without fear that his words will result in arrest and confinement.

Culpability in the absence of context, and likely imposed during a cold reading, cannot be sustained where the imposition of criminal liability would erode the speech protections of ordinary citizens. 

Colorado has strenuously object to granting certiorari, but its arguments have not persuaded the Court at this juncture.  Colorado points to Counterman’s admission that his conduct violated the stalking statute.  The presence of a speech component in a conduct-focused crime does not permit a clear constitutional analysis.

Colorado has argued that its view comports with Supreme Court precedent which permits conviction on the basis of conduct.

The Colorado court’s application of a context driven, multi factor objective analysis of petitioners’ statements permits assessment of stalking while leaving protected speech undisturbed, the state has argued. 

Colorado has argued that First Amendment protections do not extend only to speakers who would be robbed of speech protections in the absence of requiring evidence of an accused subjective mental state.  Colorado has argued that contextual analysis protects speech while permitting an objective view of threatening acts and speech.  

No briefing schedule has been issued and no oral argument date set.  

Counterman Petition for Certiorari

Counterman Brief in Opposition

Counterman Reply Brief for Petitioner

Amicus Briefs

Counterman Amicus Cato Institute

Counterman Amicus Rutherford Institute

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Dismissal of Claim Arising from Allegedly Racially Based Student Harassment Affirmed by Fifth Circuit

B.W., a minor, by next friends v. Austin Independent School District, No. 22-50158 (5th Cir.) January 9, 2023.

Plaintiff sued the school district for race based discrimination and retaliation under Title VI of the Civil Rights Act of 1964, as amended, asserting that the school district was indifferent to mistreatment suffered when plaintiff appeared in school wearing clothing or carrying signs identified with conservative figures.  Incidents included a locker room encounter in which students from one ethnic group taunted students from another ethnic group, including plaintiff, and an individual student’s lunchroom threat to kill all who support those identified with plaintiff’s clothes.

 

Plaintiff withdrew from school and initiated claims under 42 U.S.C. Section 1983 premised on the school district’s alleged violations of the First and Fourteenth Amendments, Title Vi, and Texas law.

 

Plaintiff alleged that with knowledge of the harassment plaintiff was suffering, the school district acted with deliberate indifference to his rights, and failed to provide him with a safe environment.

 

The Fifth Circuit affirmed dismissal premised on insufficient evidence, as there were only infrequent race based remarks which were not seen as sufficient to support a Title VI claim.  Title VI concerns only intentional discrimination which can be found if there is deliberate indifference to known harassment.  No such evidence existed on the plaintiff’s record, the court concluded, as plaintiff was tainted for ideological, not racial views.  In particular, no inference could be drawn by identifying the plaintiff’s race with that of a conservative political party, as no evidence indicated any race is precluded from participating in the conservative group.

 

The Fifth Circuit panel noted that plaintiff failed to develop any argument that the school district could be liable for deliberate indifference to student on student harassment, and therefore that this otherwise potentially compelling argument would not be addressed. Slip. op. P. 14, n.1.

 

The plaintiff’s retaliation claim was properly dismissed, as the complaint did not reveal any action taken because plaintiff opposed any unlawful practice or in response to any protected activity in reporting harassment.

 

The Fifth Circuit observed that nothing in the opinion indicates that the appellate court has looked away from the bullying plaintiff described, only that the law cited “does not support a claim for bullying generally.”  Slip. op. At 16.  


B.W. v. Austin Independent School District, No. 22-50158.0 (5th Cri.) January 9, 2023

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First Amendment Protection Not Lost in Michigan “Hate Speech” Case, Michigan Appellate Court Opines

CNN v. SEB, No. 359007 (Mich. App.)  January 12, 2023.  

Michigan’s Court of Appeals has vacated a personal protection order seen to have been supported by “hate speech.”

The parties are embattled neighbors who routinely feud over a shared driveway.  One such ruckus included a racial taunt between the parties referring to the race of a neighbor who was an observer and a stranger to the fight.  

The Michigan Court of Appeals has held that notwithstanding the distasteful remark, no threat was present which  would exempt the speaker from First Amendment protections, and as such, it would not support the issuance of a personal protective order.  

CNN V SEB Michigan Court of Appeals No. 359007 Opinion January 11, 2023

 

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Eleventh Circuit Court of Appeals to (Trump-Requested) Special Master: “You’re Fired!”

Trump v. United States of America, No. 22-13005 (11th Cir.) Opinion and Order entered on December 1, 2022, reversing and vacating order of United States District Court granting plaintiff Trump equitable relief in a September 5, 2022 order authorizing the appointment of a Special Master to oversee review of documents and things seized from the former President’s residence in August, 2022.

The United States Court of Appeals for the Eleventh Circuit has concluded that the trial court hearing former President Trump’s request for judicial oversight of the review of materials seized from his residence was in error in granting the relief sought.  As courts of limited jurisdiction, federal courts cannot exercise equitable jurisdiction absent “callous disregard” of the constitutional rights of an individual to whom a warrant is directed. Such circumstances are not present in this case notwithstanding that a former President is involved.  Were the courts to permit challenges to warrants duly authorized and executed in non-extreme circumstances, challenges to searches and seizures would be routinely challenged, impeding, if not crippling, the work of federal investigators.  An urgent need for specific items, denial of which would precipitate grave and irreparable harm, might be grounds for relief, but the general assertions presented in this case do not demonstrate such a need.  Recitals of statutory possessory interests are not availing where all seizures involve items of possessory interest. 

Trump v. USA, No. 22-13005 (11th Cir.) Order and Opinion December 1, 2022