This !!!##@@!!!## Mark is Your !!!##@@!!!## Mark: Lanham Act’s Prohibition of Registration of “Immoral” or “Scandalous” Marks Fails First Amendment Analysis

Iancu, Undersecretary of Commerce for Intellectual Property, et al. v. Brunetti, No. 18-302.  June 24, 2019.


The Supreme Court has held to be invalid as constitutionally impermissible viewpoint discrimination that portion of the Lanham Act, 15 U.S.C. Section 1052(a) that prohibits registration of “immoral” or “scandalous” trademarks.  The decision echoes the Court’s two term old determination in Matal v. Tam, 582 U.S.      (2017) that found constitutionally defective that portion of Section 1052(a) of the Lanham Act that prohibited registration of “disparaging” trademarks. 

The Court’s determination in Brunetti, which concerns a mark that resembles a common vulgarity with sexual connotations, was not surprising. What may to some be refreshing is that some of the justices seem ill at ease with the practice of analyzing First Amendment claims using outcome determinative classifications and rules and would favor a move toward looking at cases on the basis of which First Amendment principles would be served — or not — by review.  

Writing for the Court, Justice Kagan reiterated in this week’s opinion its core view that the government may not “discriminate against speech based on the ideas or opinions it conveys.” (Slip op.4).  The Court was unable to consider the terms “immoral” or “scandalous” to be other than value and meanings based and selective of ideas and therefore not susceptible of a saving viewpoint neutral construction. 

The Court rejected the government’s suggestion that the government would read the words “immoral” and “scandalous” jointly and only refuse to register marks that a majority of society would find to be objectionable  To do so would not address the statute as it is written but instead would construct a new statute according to the government’s wishes.  

Having found the statute to improperly consider the suppression of views, the Court observed that it is no answer to suggest that the statute could be construed to suppress only some views, for this is precisely the ill that the prohibitions on viewpoint discrimination are intended to remedy.

Justice Alito wrote separately in concurrence, noting the importance of the avoidance of viewpoint discrimination as a “poison to a free society,” and which is particularly problematic now, when free speech is under attack.  The susceptibility of the words “immoral” or “scandalous” to exploitation for illegitimate ends compels the Court’s conclusion in this case but does not prohibit Congress from fashioning new legislation.

Chief Justice Roberts concurred in part with the majority that the word “immoral” is not susceptible of a limiting neutral construction but suggests that the word “scandalous” may be.  Agreeing with dissenting Justice Sotomayor, the Chief Justices saw no reason to “give aid and comfort to those using obscene, vulgar and profane modes of expression.”  

Justice Breyer concurred in part and dissenting in part and agreed with Justice Sotomajor that a narrowing and constitutionally saving construction of the word “scandalous” could be acceptable.  This would permit prohibition of registration of only highly vulgar or obscene expression.

Justice Breyer observed that categorical analyses of speech ill serve First Amendment analyses.  The central and crucial question is whether any measure serves or deserves the values the First Amendment is intended to protect.  Not only are rules insufficient to be outcome-determinative, and ought to be mere guidance, but the court here has also not addressed the primary criteria for selecting among extant rules by determining whether the trademark statute concerns commercial speech or government speech.  

Justice Breyer agreed with Justice Sotomayor that elucidation of the distinction between content based discrimination and viewpoint based discrimination s not easily accomplished.  Justice Breyer would not find harm in prohibiting registration of highly vulgar or obscene words. Justice Breyer could not see how limiting registration of these emotionally provocative expressions constitutes “viewpoint discrimination.”

Moreover, it is difficult to avoid perceiving that any limitation on registration is content based.  The critical question in any First Amendment analysis, in Justice Breyer’s view, is whether any regulation causes harm to First Amendment interests that is disproportionate to any regulatory objective.  

Under such analysis very little harm to First Amendment interests would be worked by precluding registration of “highly vulgar or obscene” trademarks, particularly as merchants may use such marks without registration.

In dissent, Justice Sotomayor offered that the Court’s conclusions in this case will prohibit denial of registration of the most vulgar, profane and obscene remarks.  

Contrary to the majority, Justice Sotomayor perceives that the word “scandalous” may be interpreted to mean that expression which is shocking to a sense of decency.  

The distinction between content based discrimination and its most odious manifestation, viewpoint based discrimination, is not easy and it is clear that not every restriction on modes of expression is viewpoint based.  Lighting fires in the public square, uttering fighting words and other expressions are categorically excluded from First Amendment protection. These actions and utterances obtain their status because they are intolerable modes of expression: this is true no matter what the content or point of view advanced may be. These modes of expression cannot be tolerated no matter the idea.  As such, restricting registration of obscene or vulgar remarks is content based but viewpoint neutral and so the Court’s precedents have concluded.

Finally, it is not necessary to submit any and all content discrimination — even that which is viewpoint neutral — to strict scrutiny.  But when strict scrutiny does not apply, viewpoint based versus viewpoint neutral considerations may be outcome-determinative.  

Trademark registration is a commercial benefit which facilitates but is not necessary to trademark enforcement.  Once provided it cannot be administered in a viewpoint discriminatory manner. Trademark protections exist without government registration but their recognition and enforcement may be enhanced by registration. The government need not operate a trademark system but when it does it is permissible to permit some restrictions, particularly where their imposition may help some but not hurt others.

Even If the public does not associate trademarks with the federal government, the government’s involvement with registration does involve promoting particular marks, concerning some of which the government would decline association. The government has a reasonable interest in refraining from “lending its support to marks that are obscene, vulgar or profane.’” Prohibiting registration of such marks is reasonable, viewpoint-neutral, content based regulation and the narrowing construction of “scandalous” offered here would save the statute and inhibit a rush to registration of offensive materials.

The First Amendment guards the use of the words in issue here. This does not mean, Justice Sotomayor observed, that the government needs to support their use. 

Justice Sotomayor stressed that the instant case is a facial challenge.  The saving construction proffered would not be overly broad. Justice Sotomayor cautioned that if the statute were saved by a narrowing construction, the courts ought nonetheless take seriously viewpoint concerns raised in as-applied challenges.

Iancu v. Brunetti , U.S. Supreme Court, June 24, 2019

Private Non-Profit Managing Public Access Channels of Manhattan Cable Franchise Is Not a “State Actor” For First Amendment Purposes

Manhattan Community Access Corporation v. Halleck, et al., No. 17-1702.  June 17, 2019.


Cable television companies are required by federal law to set aside some broadcast capacity to permit public access broadcasting.  As in this case, local governments contract with the cable companies to operate these public access services. Here, New York City, which franchised  Time Warner Cable Company, contracted with a private entity, Manhattan Neighborhood Network (MNN), to operate the community access programs. Film producers Halleck and Melendez sued MNN asserting that their termination after the broadcast of their critical documentary violated their First Amendment rights.

The Supreme Court has concluded that private community access operator MNN is not a “state actor” who has assumed traditionally exclusively public duties.

Public access broadcast channels came into being with a 1970 federal law requiring cable operators to set aside resources for such channels.  That law was determined to have been deficient. In 1984 the federal government conferred upon state and local government the authority to require public access set aides.

Currently New York State requires set asides and permits cable operators to operate the public access channels themselves.  Alternatively, the cable operators may allow local governments to operate the set asides or permit a private entity to do so.  

In this case New York City entered into a franchise arrangement with Time Warner Cable Company which permitted the city to designate the public access channel operators.  The city designated the non-profit Manhattan Neighborhood Network (MNN) to operate the public access channels.

The Supreme Court reordered the logic of the Second Circuit and reversed in part its decision, which had found that by operating a public forum, a traditionally exclusively governmental function, the Manhattan Neighborhood Network became a state actor answerable for First Amendment violations.  

The Supreme Court has concluded that the public access operator is a private entity. Operation of public access channels in a cable system is not, the Court observed, a traditionally exclusively governmental function.  Opening up a space for others’ speech will not transform a private entity into a state actor for First Amendment purposes. The city’s provision of a license to MNN will not make the private entity a state actor unless MNN exercised traditionally exclusively public functions. Regulation will not work the transformation from private to governmental entity either.

The Court does not agree with the argument that the public access channels are public property.  The city does not have a property interest in the public access channels. Time Warner, the city’s franchisee, granted the city the opportunity to designate a private entity like MNN to operate the public access channels, but this did not disturb Time Warner’s ownership of the cable system.

The Court observed that other arrangements might yield other results.  The Court expressed fear that the expansion of government control through application of the state actor doctrine here would diminish individual liberty and private enterprise.

Three justices dissented, offering the view that the case concerns a government’s appointment of an entity to operate a constitutional public forum. The dissent did not perceive the property to be private property opened up to others.  The city has a property interest in the franchise granted to Time Warner. That franchise requires Time Warner to open the public access channels as a public forum. The city’s contract with MNN made MNN the city’s agent, stepping into the government’s shoes and becoming a state actor subject to the First Amendment.

The state requires the cable franchisees to provide open access public channels without editorial control of content.  The city’s property interest in the franchise and the mandated open access requires that the operator be treated as a state actor.  The city had an obligation to provide the public forums once a franchise was granted and was obligated to comply with the First Amendment once the forum was provided.  These constitutional obligations could not be diminished or eradicated by delegation to a private administrator such as MNN.

Manhattan Community Access Corp. et al. v. Halleck et al., No. 17-1702. June 17, 2019.

 

Tradition! World War I Memorial Cross on Public Land Not a Violation of the Establishment Clause, Supreme Court Concludes

American Legion, et al. v. American Humanist Ass’n, et al, No. 17-1717; Maryland National Capital Parks and Planning Commission v. American Humanist Ass’n et al., No. 18-18.   June 20, 2019.


The Freighted Hand of History. The Supreme Court has concluded that the history and custom of incorporating cross symbols in war and other memorials, as well as the susceptibility of the cross to secular as well as religious meaning, indicates that the presence of the World War I memorial cross situated on a publicly owned and maintaining traffic island in Bladensburg, Maryland (the “Bladensburg Cross” or “Peace Cross”) does not offend the First Amendment Establishment Clause.

Not In With the New Nor Out With the Old. The majority of the Court declined to define its determination as a new test for Establishment Clause challenges and similarly declined to explicitly override the much criticized three prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971) while nonetheless refusing to apply Lemon to its analysis in this case.

Multiple Opinions Published. Justice Alito wrote for the seven judges joining in the opinion in whole or in part or in the judgment only. Justices Thomas, Breyer. Kagan, Gorsuch and Kavanaugh wrote separately.  Justice Ginsburg, joined by Justice Sotomayor, sharply criticized the majority, offering that the maintenance of a Christian cross on public land ought to be presumptively offensive to the Establishment Clause.

Background and Procedural History.  The case is a challenge to the presence of a cross-shaped World War I memorial on public land brought by humanists who have alleged they are offended by the sight of the cross, its presence on public lands, and the expenditure of public funds to support the memorial.  The humanists argued that this presence offends the Establishment Clause. The Supreme Court majority has disagreed, declining to uphold the Fourth Circuit order directing the removal or remodeling of the memorial.

The case record discloses that the federal trial court in Maryland dismissed the case, finding that the monument satisfied the three prong test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971) . The court found a secular purposes of commemoration and current public safety in maintaining the cross on public land, and found that a reasonable observer would not form the impression that the cross impermissibly endorsed religion.  Moreover, the static presence of the cross did not excessively entangle the government, as no continued and repetitive government involvement in religion could be found.

The Fourth Circuit Court of Appeals took a contrary view, perceiving that an ordinary observer would indeed see the cross, with its public ownership and maintenance, as an endorsement of Christianity.  The Fourth Circuit focused on the inherent religious meaning of the cross and refused to allow history to serve as a legal determinant, seeing history as expanding rather than diminishing the harm caused by the presence of the cross.  

A dissent in the Fourth Circuit felt the panel overlooked history and failed to recognize that the Lemon test concerned “comprehensive, discriminating, and continuing state surveillance” of religion, which circumstances are absent in the placement and maintenance of a war memorial cross.

Following denial of rehearing en banc in the Fourth Circuit, petitions for certiorari were submitted and granted.

Meaning and Locus in Society.  Justice Alito noted that the Bladensburg Cross serves not just as a Christian symbol but also as an expression of the community’s grief and gratitude, and an affirmation of the values for which the remembered soldiers fought. Removal of the cross would not only work harm to the community but would evince a hostility toward religion which does not comport with the Establishment Clause.

Bladensburg Cross Held to Be in Accord with First Amendment Fundamentals.  The Religion Clauses contemplate the harmonious presence of all beliefs: the Peace Cross is consistent with that purpose.

The Christian cross’s centuries old religious origin is undeniable, but the cross symbol itself figures prominently in trademarks and medical symbols, and with particular presence in war and military memorials and decorations as a symbol of sacrifice.

Justice Alito observed that there was  community involvement in the inception of the Bladensburg Cross, that different faiths participated in  its dedication, that diverse soldiers are honored by the cross, and that the site has been used for multiple public events, particularly veterans’ events.

Lemon Sours. Exegesis of the Religion Clause’s prohibition on any “law respecting the Establishment of Religion” has been a long and difficult endeavor, most notably reflected in the oft-criticized test of Lemon v. Kurtzman,  403 U.S. 602 (1971). Courts and counsel decry the Lemon test, but no court has been so bold as to directly declare its dismissal. To Lemon has been added analysis of the question whether a “reasonable observer” would perceive a government action to endorse religion.

Lemon provides no sound rationale for analysis of cases like the present one for examining the public use of words or symbols with religious associations.  Justice Alito would set aside Lemon in favor of presuming constitutionality attaches to “longstanding monuments, symbols, and practices.”

Memories Fade While Uses Multiply. Discerning initial purposes may become more difficult with the passage of time. At the same time, the purposes for which such monuments are used may multiply and serve secular ends.  

Revisionist Erasure of History No Panacea.  To scrub away names and remove longstanding memorials would strike many as evincing hostility to religion, itself impermissible.

The Christian primacy of the cross symbol cannot preclude recognition of all other meanings.  The cross serves memory, community, and history: its removal after nearly a century would not be neutral and would not foster the values of respect and tolerance that under-gird the First Amendment’s Religion Clauses.

New Presumption of Constitutionality for Aged Items and Practices. The impossibility of fully discerning original purposes, the multiple meanings that evolve over time, the evolution of meanings over time, and the particular meanings to communities which will not see removal as neutral counsel in favor of presuming the constitutionality of longstanding monuments, symbols, and practices, Justice Alito wrote.

What Is Past Is Not Prologue. This new presumption, grounded in history and usage, does not pertain to the new erection or adoption of such practices, Judge Alito noted.  

The Cases Before the Court. The association of the cross with war memorials is a long standing practice, some of which the humanists find unobjectionable.  

Lemon’s ‘unifying’ theory has not proved to be as helpful as has conducting the examination of cases individually with a view toward history. This is particularly apt where current practice may reflect a long tradition of valuing religious tolerance, inclusivity, non-discrimination and the recognition of the role of religion in many lives.

The eradication of religious symbols may evince hostility toward religion notwithstanding that secular associations have added to the symbol’s patina.

In this light, the Bladensburg Cross does not offend the Establishment Clause.  The Bladensburg Cross had a special meaning at its inception in honoring World War I soldiers, then later great historic importance for the city, serving as a memorial to service and sacrifice.  Members of diverse races and faiths are included. Significantly, the symbols used have meaning for many of the individual honorees.

Justice Breyer wrote separately to reiterate his view that no “one size fits all” approach will suit Establishment Clause analyses.  

Justice Breyer would have the court consider cases in view of the principles of the Religion Clauses:  religious liberty, tolerance, avoidance of religious social conflict, and ensuring that church and state remain separate so that each may flourish.  Justice Breyer cautioned that he did not believe that the Court has now adopted any new test — one of ‘history and tradition — that would open the door to new religious memorials on public land.  In all its Establishment Clause analytic endeavors, Justice Breyer offered that the Court must always be at pains to understand the difference between a “real threat and a mere shadow.”

Justice Kavanaugh wrote separately to celebrate what he perceived to be a full, implicit, retrenchment from Lemon.  Several strands of Establishment Clause jurisprudence have not focused on Lemon but on important issues such as history and tradition with respect to religious symbols in public spaces; legislative accommodation for religious activity and exemptions from general laws; government benefits to religions; proscription of coercion in public school prayer; and according parity to religious and secular speech in public forums.  Lemon has held no sway in these cases. If a government act is not coercive, is grounded in tradition or history, treats all with equanimity, or permissibly accommodates or exempts on the basis of religion, then the Establishment Clause is not offended

Justice Kavanaugh suggests that those who remain concerned may want to use local processes to redress perceived wrongs.  So doing would be consistent with the great traditions of the United States. The Supreme Court is not the sole guardian of individual rights;  other governmental entities may provide safeguards greater than those in the federal constitution.

Justice Kagan wrote separately to offer that while Lemon is inapt in this case, Lemon’s focus on purpose and effects is critically important in evaluating government action. Justice Kagan would shy away from adopting an historical focus in Establishment Clause cases generally, and approach each case individually. That said, Justice Kagan applauded the Court’s emphasis on First Amendment values of pluralism, neutrality, and inclusion.

Justice Thomas wrote separately to concur only in the Court’s result and not in its reasoning, noting his fundamental concern with the incorporation of the Establishment Clause against the states.  The “law” mentioned in the Establishment Clause is legislation, making the clause inapplicable even if incorporation were to apply. A religious display has none of the coercive elements that the religious clauses were concerned with.  Justice Thomas would overrule Lemon in toto.

Justice Gorsuch wrote separately to opine that the rejection of “offended observer” standing ought to be articulated clearly.  Rejection of a status that could not withstand traditional Article III analysis was inherent in the court’s determination, however, and  “offended observer” standing has already been rejected by the Court.

Justice Gorsuch has noted that “offended observer” notions fail to comport with the requisites for Article III standing:  concrete, particular, actual, non-conjectural injury in fact; causation and redressability. Justice Gorsuch perceives “offended observer” standing to be the child of Lemon, which the Court clearly recognizes as a “misadventure.”  Lemon ought to meet its demise without leaving behind a noisome legacy like “offended observer” standing. The Court’s present enunciation of the importance of looking to history and tradition is a far more apt approach than that of the cumbersome Lemon test.  

The notion that history or the passage of time permits a presumption of constitutionality is problematic.  Better to apply the reasoning articulated in public prayer cases that create an artificial rule — a presumption — the application of which will prove difficult to define.

Justice Ginsburg, joined by Justice Sotomayor, has offered a dissenting view, criticizing the majority for permitting the ongoing installation of the “immense” cross as in derogation of the principles of government neutrality among faiths as well as between religion and non-religion.  

The preeminent symbol of Christianity cannot be transformed into a secular symbol by incorporation in a war memorial.  The Bladensburg Cross elevates Christianity over other faiths and preferences religion over non-religion. 

The installation of a religious symbol on public land ought to be seen as presumptively endorsing religion, contrary to the majority view  

Such a presumption may be overcome by indicia of neutrality. Museums might be suitable for displaying religious symbols.

The threat that all cemeteries would need refashioning to remove crosses lacks substance, Justice Ginsburg observes, because the presence of these symbols on individual graves may be seen as the protected speech of those buried there.  Neither is it necessary to hide all religious symbols from view. Such symbols may be relocated to private land, or public land may be transferred to private parties.

American Legion v. American Humanists, June 20, 2019 Supreme Court Opinion

An enchanting analysis may be found here:

Subscript Law Infographic of American Legion v. American Humanists Ass’n

And such perspective as may be found could be located here:

 

Supreme Court Vacates Oregon Court of Appeals Judgment and Directs Consideration of the Bakers’ and Customers’ Rights and Interests in Light of Last Term’s Decision in Masterpiece Cakeshop v. Colorado, 586 U.S. ____(2018).

Klein v. Oregon Bureau of Labor and Industries, No. 18-547. Order granting certiorari, vacating judgment below, and remanding for further proceedings entered June 17, 2019.


Petitioners, who owned and operated an Oregon bakery, refused to create a custom wedding cake for a same sex marriage, citing religious beliefs.  The State of Oregon found petitioners to have violated the state’s civil rights laws and imposed a $135,000 fine.  Petitioners submitted a petition for a writ of certiorari at the beginning of the Court’s term and just today, close to the term’s end, learned that the ruling against them has been reversed, and the state court has been directed to review the case anew in light of the Court’s determination last term in Masterpiece Cakeshop v. Colorado, 586 U.S.      (2018).

Petitioners asked the Supreme Court to address significant questions of constitutional law, each of which will remain without determination for now, and perhaps, for all time.  The Kleins asked the Court to determine that requiring them to produce a cake against their religious beliefs would violate the First Amendment Free Speech and Free Exercise clauses.  The Kleins wanted asked the court to determine whether to overturn Employment Division v. Smith, 494 U.S. 872 (1990), which requires compliance with neutral laws of general applicability even if the law infringes in part on rights.  They also wanted the court to determine how to properly evaluate cases in which conflicts among fundamental constitutional rights are presented.

The Court’s response to these questions must await another day, if ever they are reached at all.  Those familiar with the Masterpiece Cakeshop determination will recall that similarly substantial issues were presented there, but were likewise not addressed.  Instead, the Court concluded that the Colorado decision showed improper animus toward religion, and reversed the state’s decision in favor of the state civil rights commission.

Those eager to see the larger constitutional questions addressed may find the Supreme Court’s reliance on the conduct of investigations and other proceedings to be frustrating.  To do so might be short-sighted, however. The Court has sent a clear signal that bias among those charged with investigating bias cannot be countenanced, and where such bias can be shown, a decision infected with improper considerations cannot stand.

This is not a minor point.  All concerned in investigative, administrative, and judicial proceedings are on notice that equanimity is to be strictly observed.  In the absence of fair mindedness, victories may prove Pyrrhic indeed.

What is also interesting is that the Supreme Court, after much time has passed in determining whether or not to grant the petition for certiorari, has asked Oregon to look again at its proceedings.  This was not done in Masterpiece Cakeshop, supra.  No doubt all interested eyes will look to Oregon to observe what will next occur.

What follows is today’s Supreme Court Order, the parties’ submissions regarding certiorari, and a copy of the Masterpiece Cakeshop decision.


Order List (06_17_2019)

Klein Cert Petition

Respondent Oregon’s Opposiition 18-547

Klein Reply re. Certiorari

Masterpiece Cakeshop v. Colorado 584 U.S. 2018

The petitioners were supported by several amicus submissions, as follows:

Institute for Faith and Family Amicus Brief

Pacific Legal Foundation Amicus Brief

Southeastern Legal Foundation Amicus Brief

Foundation for Moral Law Amicus Brief

Center for Constitutional Jurisprudence Amicus Brief

Several States’ Amicus Brief

Thomas More Society Amicus Brief

Cato Institute Amicus Brief

Public Advocate of the United States and Others’ Amicus Brief

Billy Graham Evangelistic Association and Others’ Amicus Brief

 

 

 

 

 

 

 

He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.


Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.


Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

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

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


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

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

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

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

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

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

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

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

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

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

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

Merits Briefs

20181217160935389_17-1717 American Legion Brief

20181217164050705_18-18 Maryland National Park and Planning Brief

20190123152713265_37350 pdf AHA Final Brief 1-23-19

20190213163922725_17-1717 American Legion Reply Brief

20190213120308294_18-18 Maryland National Capital Park Reply Brief

Joint Appendix

20181217164536737_Peace JA – Volume I

20181217164544300_Peace JA – Volume II

20181217164556003_Peace JA – Volume III

20181217164614847_Peace-JA-Volume-IV

Summary of Amicus Submissions

2019 02 24 Amicus Submissions AL v AHA 17-1717

 

 

 

 

 

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Junk in the Trunk? Officers’ Search Based on Car Rental Agreement Violates the Fourth Amendment, Supreme Court Concludes

Byrd v. United States, No. 16-1371 (S. Ct.) (May 14, 2018).


Something seemed amiss in petitioner Byrd’s driving, according to Pennsylvania State Troopers who stopped him and, on discovering that he was not an authorized driver of the rental vehicle he occupied, searched the trunk, where 49 bricks of heroin and body armor were found.  The federal district court in Pennsylvania and the Third Circuit Court of Appeals denied Byrd’s motion to suppress the fruits of an unlawful search, observing that Byrd’s failure to be shown on the contract as an authorized driver of the rental car negated any expectation of privacy.

The Supreme Court has disagreed, holding that the expectation of privacy that is central to determinations of whether searches comport with the Fourth Amendment cannot be destroyed by tangential questions such as the insurance consequences of permitting an unauthorized driver to operate a rental car.

Freedom from unreasonable searches and seizures is essential to liberty, the Court observed, reflecting on the Framers’ concern with the indignities of general warrants that, among other matters, precipitated rebellion against the Crown.  

While privacy expectations in an automobile may be diminished, the more salient question is whether any search violates a Fourth Amendment interest, which requires examination of privacy interests, which need not, but certainly may be, grounded in common law property concepts.  While an individual need not have a common law property interest in a place to be searched to claim an expectation of privacy, it does not follow that legitimate presence alone confers Fourth Amendment rights. While not susceptible of precise and exhaustive definition, the Court observed that privacy expectations must come from outside the Fourth Amendment, either through property concepts or through societal recognition.  

Thus where rights of exclusion attach to possession or control, reasonable expectations of privacy flow from those rights of exclusion, and this principle controls the outcome for Byrd.

The Court declined to indulge either party’s “always” or “never” arguments concerning the rights of unauthorized drivers, finding the parties’ positions to be too broad or too restrictive.

A legitimate presence in an automobile will not of necessity confer a legitimate interest in prohibiting a search of a glove compartment, the Court has previously held, but from this it does not follow that Byrd had only the interests of a passenger, which he would have been had the authorized driver been behind the wheel.   In the Court’s earlier case, the Court recognized an interest in mere presence but the accused in that case did not argue that presence included an interest in freedom from search of the connects of the vehicle.

The exercise of dominion and control, and the right to exclude, are critical determinants that exist without respect to restrictions in the rental agreement, which has little bearing on the driver’s expectation of privacy, a point agreed to by the government.

Although the Court’s property and contract analysis might have provided some comfort to Byrd, the victory of recognition of his privacy interests at the Supreme Court does not conclude the matter.  Notwithstanding dominion and control, and rights of exclusion, was Byrd’s status, because of potential subterfuge in arranging the rental, no better than that of a thief, which would vitiate all expectations of privacy?  Were the officers in possession of sufficient information to believe that at the car contained evidence of a crime, thereby legitimizing a warrantless search under established automobile exceptions case law?

Both questions remain for future development on remand.

One concurring justice noted that the majority would have done well to be more definite in determining when an automobile might fairly be said to be an “effect” for Fourth Amendment purposes, to which privacy expectations might attach.    Another would not disregard the rental agreement nor the circumstances obtaining the rental as sources of information bearing on the availability of a Fourth Amendment claim.

Byrd v. United States, No. 16-1371. S.Ct. May 14, 2018

(Un)Fair Notice? California’s Reproductive Services Notice Legislation Faces Opposition Before the United States Supreme Court

National Institute of Family and Life Advocates v. Becerra, et al., No. 16-1140 (S. Ct.).  Oral argument scheduled for March 20, 2018.


California has enacted legislation intended to notify women of the availability of aid in accessing contraception or abortion services.  Article 2.7, Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, 123470 to 123473. California Code (2018 Edition). The statute appears to apply widely. However, through a series of exemptions, the FACT Act actually requires only that pregnancy centers that are not medically licensed by the state provide notice of that status to clients and that pregnancy centers that do not offer abortion provide notice to clients about available services and how to access those services.

Pregnancy centers and their advocates are challenging the FACT Act in the United States Supreme Court, demanding that the Court hold the FACT Act unconstitutional in violation of the First Amendment as it, in their view, compels speech contrary to the purpose of the pregnancy centers..  The pregnancy centers sense that they have been compelled to advertise for that which they find contrary to conscience. California and its supporters demur, arguing, among other matters, that the FACT Act is a neutral generally applicable law deserving of no special constitutional protection even if it imposes a minor burden in compliance with its provisions.  Moreover, this general law does not discriminate on the basis of pregnancy center’s points of view concerning abortion. In the state’s view, petitioners are not hampered in their ability to speak nor does the provision of the notice the state requires constitute an endorsement.

Both parties contest the proper standard of judicial review:  Petitioners argue strict scrutiny is required, while the state argues a more lenient standard ought to apply, as in the state’s view, the act may be analogized to state regulation of commercial speech.  

Petitioners decry what they foresee as adverse consequence if a lesser standard of review is adopted: petitioners see this as opening the door state regulation of speech in unprecedented, and unwelcome, forms.   The state’s supporters argue that the public must know and in particular pregnant women must be made aware, of choices during pregnancy, particularly as, in their view, pregnancy centers are not clear in their purposes, and that the time-sensitive results of not being fully informed about choices can be life altering.

If the instant case were not challenging enough, amici remind the court that similar issues are percolating in lower federal and in state courts.  Whether the Supreme Court will be impressed by a recent Fourth Circuit opinion disfavoring notice requirements similar to those in issue here is impossible to predict.  The Court has no obligation to follow the reasoning of an inferior court yet neither need the Court ignore a determination that does not square with the Ninth Circuit opinion that paved the way for the Supreme Court to grant certiorari in this case.

Contentiousness concerning reproductive issues does not appear to have diminished in the decades following the Supreme Court’s recognition of privacy interests attaching to such decisions in Griswold v. Connecticut  381 U.S. 479 (1965) and Roe v. Wade,  410 U.S. 113 (1973 ).  Time appears only to have amplified such concerns, perhaps not without good cause, as technology has evolved to aid in health choices but with it has come new dimensions of choices to be encountered at the beginning and end of life.  Interstitial legal arguments over enunciated and implied First Amendment guarantees have ensued, and continue. The professionalization of views on reproductive matters is readily apparent upon even a cursory review of the number of advocacy organizations submitting as amici in this case.

There is little doubt that oral argument will be lively.  In anticipation thereof, the merits briefs are linked below.  An overview of amicus submissions is also attached. The principal briefs were obtained through ScotusBlog, a site without which there would be general unawareness of developments at the Supreme Court.  The overview of amicus submissions is Just Lawful Blog’s own.


20180108123359506_2018.01.08 NIFLAvB Brief of Petitioners FINAL

20180108124518914_2018.01.08 NIFLAvB Joint Appendix FINAL

20180116184704477_16-1140npacUnitedStates

20180220120759477_16-1140 Brief For Respondent

20180220155129758_2018.02.20.ussc.16-1140.jak.state_resp_merits_brief

20180313112437769_2018.03.13 NIFLAvB MERITS Reply Brief

20180316160703572_16-1140 BS Letter

NIFLA v. Becerra, No. 11-1160 Amicus Submissions 2018 03 18