Posted on by justlawfulblog

Pro-Life Cries of “Murder” Are Core Political Speech, Texas Supreme Court Holds

The Lilith Fund for Reproductive Equity v. Dickson and Right to Life East Texas, No. 21-0978 and Dickson and Right to Life East Texas v. Afiya Center and East Texas Access Fund, No. 21-1039. 

Two Texas Courts of Appeals held divergent views of whether incendiary exchanges between pro-life and pro-choice groups could be actionable in defamation.  The Supreme Court of Texas has held that these advocates’ statements are not allegations of fact, but of opinion concerning matters of law and policy, making the rhetoric core political speech, protected by both the Texas and U.S. Constitutions.  As such, they are not actionable in defamation, as permitting such claims to go forward would chill protected speech.

The court noted that the term “murder” is freely employed in several social justice arenas, such as war, capital punishment, and animal rights.  

With this question resolved, post-Dobbs‘ ‘debates’ will no doubt rage on, in Texas and likely elsewhere, with no apparent end in sight.

Lilith Fund for Reproductive Equity v. Dickson, et al.

Posted on by justlawfulblog

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

Posted on by justlawfulblog

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

Posted on by justlawfulblog

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

Posted on by justlawfulblog

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

Posted on by justlawfulblog

Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

Posted on by justlawfulblog

Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms

Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.

Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

Posted on by justlawfulblog

Redacted Affidavit in Support of Warrant to Search Former President’s Residence Reveals Background Information and Theory Concerning Alleged Presence of Classified Materials But Conceals Details

 

In re: Sealed Search Warrant, No. 22-mj-8332 (BER). Redacted Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize docketed August 26, 2022.

The Department of Justice has complied with the U.S. District Court’s order to file a public copy of the affidavit supporting a search and seizure of former President Donald J. Trump’s residence, which occurred on August 8, 2022.  

 

The Department of Justice has outlined the reasons for the redactions made to the documents, which were reviewed by the court before the affidavit was released.  The federal government sought redactions to protect: 1) witness identities; 2) investigative plans or “roadmaps”; 3) Rule 6(e)[grand jury] materials; 4) law enforcement safety; 5) privacy of involved individuals.

 

The redacted affidavit recites that in January, 2022, the National Archives and Records Administration (NARA) received fifteen boxes of documents transferred from the former president’s Florida residence.  NARA became concerned because documents bearing classification markings were included in the transmittal, and was also concerned about the organization and presentation of those materials.  

 

NARA contacted the Department of Justice about these concerns, which prompted the Federal Bureau of Investigation to open a criminal investigation to explore how documents bearing classification markings were removed from the White House, the nature of any storage at the former president’s Florida residence, whether additional materials were stored there, and who was involved in the removal and storage of classified informative in an unauthorized space. 

 

Investigation confirmed the presence of documents marked classified within the transmittal to NARA.  Review prompted the observation that National Defense Information (NDI) was likely within those documents, and that the storage of the fifteen boxes sent to NARA had been at an unauthorized location. 

 

A section of the affidavit provides the caption “There is Probable Cause to Believe that Documents Containing Classified NDI and Presidential Records Remain at the Premises,” but the section is otherwise entirely redacted, with the exception of a recital concerning the location of documents in unauthorized spaces, a reference to ‘violations,’ and a description of the area to be searched.  Concern about the presence of third parties is expressed.  

 

Much of the affidavit recites what the Federal Bureau of Investigation proffers as support in the law for issuance of a warrant to search the former president’s residence and to seize any responsive materials found there, which would include materials believed to be subject to the Presidential Records Act.  

 

The affidavit mentions a published report describing the presence of moving vans at the former president’s Florida residence in January, 2021, and discloses that NARA was advised in May, 2021 that Presidential Records Act materials had been found and were ready to be retrieved. 

 

The affiant reiterates that inventory of the documents transferred to NARA in January, 2022 bore classification markings at high levels of restriction and that those documents were likely to contain National Defense Information (NDI).  

 

Because of believed violations of laws addressing the management of classified information and the belief that materials illegally possess would be found at the former president’s residence, a warrant was sought, with procedural assurances to ensure proper management of seized materials proffered.  

 

Notice of Filing by United States August 26 2022

[Redacted] Affidavit in Support of Application for Warrant Unsealed August 26 2022

[Redacted] Memorandum of Law Supporting Redactions Unsealed August 26 2022

[Redacted] Attachment Itemizing Redactions Unsealed August 26, 2022

 

 

Posted on by justlawfulblog

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

Posted on by justlawfulblog

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)