Some Kind of Hearing: Perceiving Procedural Deficiencies, Federal Court Orders University of Connecticut to Enroll Suspended Student

Doe v. University of Connecticut, No. 3:20-cv-092. Temporary restraining order granted January 23, 2020. Hearing on preliminary injunction continued to February 19th.


That procedural due process must be accorded when the state acts to limit constitutionally protected interests seems to be second nature in our conceptions of fundamental fairness, yet it was only a half century ago, a millisecond in the slow emergence and refinement of legal principles, that the centrality of such promises was articulated in Matthews v. Eldridge, 424 U.S. 319 (1975).   And since Matthews was decided, there has been ongoing development of principles that will breathe life into its meaning.  If it is not enough that due process requires notice and an opportunity to be heard, but to be heard in a meaningful time and in a meaningful manner, the contours of the process that must be provided continue to evolve.

Recently a federal district court in Connecticut ordered the state university to reinstate a student suspended based on allegations of sexual assault where the court observed that the university’s process failed to permit the student to present witness testimony tending to negate the accuser’s credibility and failed to permit the submission of questions to the accuser.   These deprivations in themselves so distorted the proceedings that relief from the university’s decision was in order.

Doe had been months from graduation when he was accused of sexual assault. Initially the university expelled him, then revised its determination to a two year suspension, subsequent to which the school agreed to consider, but not guarantee, an application for readmission without consideration of credit earned elsewhere.

The court did not decide whether students facing discipline have confrontational rights that include cross examination, an issue of controversy within the federal courts, but focused instead on the school’s failure to permit the submission of some questions to the accuser and the presentation of witness statements helpful to Doe.

The court observed that the potentially catastrophic losses which would follow delay or preclusion of Doe’s education, as well as losses of economic and reputational interests, outweighed the university’s interest in student discipline on these facts. In light of the irreparable nature of the potential losses to Doe, the extraordinary measure of temporary mandatory injunctive relief was substantiated.  

While the interests of Doe’s accuser were not insignificant, the court noted, they would not preclude ordering temporary relief, particularly where Doe and the accuser had encountered each other subsequent to the alleged assault without incident.

A full hearing on injunctive relief having been scheduled, the parties have represented to the court that settlement discussions have been undertaken in earnest. 

This case is one among several that have within recent months caused federal courts to question the sufficiency of educational institutions’ responses to allegations of sexual assault.  Financial pressure has been applied to compel schools’ compliance with federal laws demanding sexual parity.  While such measures require close institutional attention to allegations of sexual assault, lest federal financial support be lost, some courts appear to be unwilling to permit an accused’s constitutional interests to be sacrificed in service of financial concerns.  

2020 01 23 Doe v. University of Connecticut, No. 3:20-cv-92 (MPS)

Among Friends: Strict Separation Advocates Square Off Against School Choice Proponents in Challenge to Montana Determination to Dismantle School Choice Tax Credit

Espinoza v. Montana, No. 18-1195 (U.S. Sup. Ct.) Oral argument January 22, 2020.


Dozens of amicus briefs have been submitted to the Supreme Court concerning the Court’s consideration of the constitutionality — or not — of a Montana tax-advantaged school choice program.  A thumbnail of their arguments is presented here.

 

 

Entities Submitting Amicus Briefs for Respondents Arguments
Baptist Joint Committee for Religious Liberty; The Evangelical Lutheran Church In America; General Synod of The United Church of Christ; Reverend Dr. J. Herbert Nelson, Ii, As Stated Clerk of The General Assembly of The Presbyterian Church (U.S.A.) “No funding” provisions in state constitutions promote religious liberty. Nothing in the 1972 re-enactment of the Montana Constitution suggests that its ‘no religious funding’ provisions were grounded in religious animosity. Principles of federalism compel the federal government to refrain from interference in state determinations concerning state constitutional matters: states must remain free to provide greater separation of church and state than the federal constitution requires.
Tennessee Education Association The Court is urged to bear in mind that public education serves society, where funding for private or church affiliated education is focused on individuals. In the absence of evidence that the Montana constitution’s ‘no aid’ provision is grounded in religious bigotry, the provision should not be struck down.
Colorado, California, Hawaii, Massachusetts, Michigan, Minnesota, New York, Oregon, And Washington The state amici are among the 38 states having state constitutional ‘no aid’ provisions. Amici submit that states have a profound interest in managing public education, that considerations of school funding issues are not “one size fits all” matters and are well within the ‘play in the joints’ of the competing religion clauses, and that such matters should be and remain within the powers of the states to consider.
Montana Association of Rabbis The Montana tax credit, if upheld, inures overwhelmingly to the benefit of Christian schools, and as such produces discrimination against Jews, who are a religious minority within the state. The discrimination which would ensue from upholding the tax credit is insupportable.
Religion Law Scholars Traditional considerations of the proscriptions of the Establishment Clause permits a benevolent neutrality regarding religion. The state’s activity with respect to religion need not be rigid, yet care must be taken to preclude religious accommodation from becoming state sponsorship of religion. In order to avoid state sponsorship of religious institutions, a state may determine, as Montana has, not to fund programs such as the scholarship tax credit in issue here.
National Disability Rights Network, The Arc of The United States, Council of Parent Attorneys And Advocates Twenty one disability rights advocacy groups join to oppose preferential tax treatment for private educational institutions. The groups fear that because the private schools are not bound by the federal laws governing public education of children with disabilities, such as the Individuals with Disabilities in Education Act (“IDEA”), the gains won by such legislation will be lost, and private schools will bear no accountability for their treatment of students with disabilities.
National School Boards Association et al.  More than a dozen school board associations, school systems associations, school administrators’ associations, and other public education associations and advocates submit that the Montana Supreme Court’s determined neutrality with respect to state involvement in religion is lawful and that expansion of Trinity Lutheran to public education would undermine long standing principles governing state involvement in religion.
American Federation of Teachers, National Education Association, Montana Federation of Public Employees, And Montana Quality Education Coalition Teachers’ unions urge dismissal of the case because petitioners’ interests in the relatively small tax credits being challenged are too extenuated to confer Article III standing. Precedent requires dismissal of third party challenges to others’ tax interests: to hold otherwise would flood the courts with third party actions.
Public Funds Public Schools Amicus submits that Montana Constitution Article X, Section 6 reflects the state’s commitment to the expenditure of public funds for public schools. Diversion of public funds to private schools is insupportable, particularly where doing so undermines student achievement.
Religious And Civil Rights Organizations The “play in the joints” of the federal religion clauses leaves room for states to offer more robust religious freedom protections than those accorded by the federal constitution. Montana need not require that every program that benefits public institutions benefit religious institutions: declining to permit public funding of private entities at all in order to maintain neutrality is well within the state’s rights. Upholding the Montana Supreme Court decision would not disturb decisions about property taxes, but failing to uphold the state’s decision would upend decades of precedent that precludes state involvement in funding religion. The state’s determination not to fund religious activity does not infringe upon its exercise.
State of Maine School districts lacking resources with which to operate public schools may arrange for private schools to operate in their stead, or may pay tuition for students to attend a non-sectarian school, but funding to religious schools is not permitted. Notwithstanding that Maine’s is not a voucher program, Maine questions the direct diversion of public funds to religious entities and urges the Court to affirm the Montana determination as so doing will aid Maine in resisting challenges to its approach. Maine argues that precedent recognizes that refusal to fund religious entities does not violate the Free Exercise Clause, and Trinity Lutheran does not disturb that result.
Montana Constitutional Convention Delegates Participants in the 1972 Montana Constitutional Convention assure the Court that Article X, Section 6 was vigorously debated. The convention repudiated the religious animosity of its 19th century counterpart, but chose to enact the ‘no aid’ provision in furtherance of a fundamental state commitment to public education. Not hostility toward religion but a commitment to government restraint with respect to involvement in religious matters guided the enactment of the ‘no aid’ provision.
Montana and Northern Wyoming Conference, United Church of Christ The Montana-Northern Wyoming Conference of the United Church of Christ are social justice advocates who perceive that advocacy for public education falls within those social justice goals. The UCC Conference points out that questioning the underlying legislative motivation that led to the enactment of Montana Constitution Article X, Section 6 is not proper in an “as applied” challenge such as the one in issue in this case. Even if it were proper, the motivation in 1972 was to further public aid to public education without animosity toward any faith or faiths, and that re-enactment purged the provision of any of its tainted history
Freedom From Religion Foundation, Center for Inquiry, American Atheists, And American Humanist Association Advocates urge the Court to frame the case not as one of discrimination against religion, but of impermissible state-compelled aid to religion. No such aid was within the framers’ contemplation, such aid has been historically precluded, and to hold otherwise would contravene both history and tradition. Indirect aid through tax credits is no less odious than direct aid. In the larger sense state abstinence from engagement in funding religious activities fosters religious liberty. Amici note that non-involvement in religious activities precludes preferencing one faith over another or compelling any citizen to fund a faith anathema to his or her own. Moreover, state funding of religious schools invites state regulation of those same schools, inviting entanglement that may prove undesirable by both state and church.
Entities Submitting Amicus Briefs for Petitioners
Arguments
Forge Youth Mentoring Forge Youth Mentoring, which provides Christian assistance to at-risk youth, urges the Court to recognize that Trinity Lutheran teaces that the state may not preclude religions from participation in generally available public benefits applies to education. An overly broad reading of Locke, involving direct aid to religious formation, is not apt here and particularly not so following Trinity Lutheran.
Billy Graham Evangelistic Association, Samaritan’s Purse, National Legal Foundation, Pacific Justice Institute, And International Conference of Evangelical Chaplain Endorsers Amici argue that Montana erred in its fundamental perception of the monies in issue as being owned by the state. The state does not own all because it can tax all, nor does it own the taxpayers’ contributions to private educational institutions in this case by virtue of provision of a credit against tax for such donations. Precedent supports the conclusion that the donation of private money to a private entity does not become state money by virtue of offering the credit. Zelman holds that a neutral program which permits choice concerning the direction of funds need not offend the Establishment Clause.
131 Current And former State Legislators State legislators unequivocally contend that Blaine Amendments reflect not only a shameful history but also present a contemporary impediment to state efforts to advance educational benefits for its citizens.
Justice And Freedom Fund, Institute for Faith And Family, And North Carolina School Choice Attendance at private school is an acceptable means of compliance with Montana’s compulsory education requirement. Where parents must choose private education because public education conflicts with their values, the provision of tax advantages for private education is a counterbalance to the parents’ underwriting of objectionable public schools through taxation. Where private choice directs the flow of private funds for educational and not religious ends the Establishment Clause is not implicated. The Court should continue on its course of applying flexible non-discrimination principles rather than to uphold inflexible ‘no aid’ laws.
Arizona Christian School Tuition Organization And Immaculate Heart of Mary Catholic School The application of the Montana constitution’s ‘no aid’ provisions directly discriminates against religious organizations and because it does so in connection with a generally available program or benefit — education — it cannot survive analysis under Trinity Lutheran. Amici argue that the Blaine Amendment, readopted in 1972 with knowledge of its history, bears a shameful history and is facially unconstitutional.
Montana Family Foundation The Montana Family Foundation asserts that the Religion Clauses reflect and require a ‘wholesome neutrality’ concerning government involvement in religion, a view upheld in Trinity Lutheran which is not present in Blaine Amendments or in Montana’s no-aid amendment.
Center for Education Reform, et al., Amici support the attainment of educational excellence and are of the view that a primary factor in successful school outcome’s is a family’s ability to direct the choice of school their children attend. Montana’s prohibition of access to a generally available benefit — education — runs afoul of Trinity Lutheran.Families have a recognized and constitutionally protected liberty interest in where their children attend school. Denying school choice because of religion violates bedrock constitutional principles. By comparison, the state interest in any indirect aid to religious that may flow from permitting a tax credit for private donations is miniscule. The antipathy to Catholicism undergirding the Blaine amendments would not be recognized by the Framers, but the interests of parents in their children and in freedom from religious discrimination would have been applauded, and should be today.
Rusty Bowers, Speaker of The Arizona House of Representatives, And Other State Legislative Leaders Legislative leaders of three states worry that the consideration of Blaine amendments in general and in this case in particular is ill-founded. As it is grounded in individual choice, the Montana program does not raise Establishment Clause concerns, but the denial of equality within a generally available benefit raises Free Exercise concerns that compel reversal of the Montana decision.
Jerry And Kathy Armstrong, Lashawn Robinson, Gwendolyn Samuel, Yi Fang Chen, And Pacific Legal Foundation In Support Parents of students and the foundation assert that school choice is a primary component of a parent’s “right, responsibility and privilege” to raise his or her child. School choice programs are critically important in providing an educational setting which will permit a child to thrive, and such programs are particularly critical where parents would not otherwise have the means to access such a setting.
Jewish Coalition for Religious Liberty Amicus observes that Montana’s Blaine Amendment is an impediment to students who would benefit from scholarships to Jewish Day School., which would educate them, ground them in their faith, and prepare them for leadership roles. The costs of such schools has been termed a “community crisis,” which would be alleviated by a determination that the Blaine Amendment, grounded in a history of religious antipathy, can no longer stand as an barrier to educational opportunities.
Christian Legal Society, United States Conference of Catholic Bishops, The Union of Orthodox Jewish Congregations of America, American Association of Christian Schools, The Anglican Church In North America, Association of Christian Schools International, The Church of Jesus Christ of Latter-day Saints, Council for American Private Education, Council for Christian Colleges & Universities, Ethics & Religious Liberty Commission, Evangelical Council for Financial Accountability, The General Conference of Seventh-day Adventists, Institutional Religious Freedom Alliance, The Lutheran Church – Missouri Synod, National Association of Evangelicals, Queens Federation of Churches, And World Vision, Inc. (U.S.) Amici urge the Court to continue to recognize that the First Amendment protects religious liberty through government neutrality respecting religion. Trinity Lutheran supports these principles by holding that the government may not preclude participation in a generally available benefit because of religion. That preclusion is clear here where no parent may avail himself or herself of a tax credit available to all because it concerns donation to a sectarian entity. Government neutrality is not manifested by discrimination against religion but by permitting the participation of all without concern for religion. The core constitutional concern of protection of voluntary and private choice in belief is best served by equality in governmental aid to religious and non-religious schools, a position which is “both formally and substantively neutral.”
Independence Institute Amicus presents a detailed history of the 19th century Blaine Amendments, illustrating the antipathies toward disfavored religions that these laws supported and promoted, underscoring that in that day “sectarian” applied only to those disfavored groups, and arguing that the application of the Montana Constitution’s “no aid” provision violates both the First and Fourteenth Amendments of the U.S. Constitution.
Alliance for Choice In Education Amicus submits that precluding faith-based schools from participation in scholarship benefits sharply reduces their likelihood of obtaining favorable educational outcomes for students. The exclusion ignores history and likewise ignores the importance of parental capacity to seek educational opportunities consistent with their values. Research supports a correlation between choice and good outcomes. The Locke decision’s “play in the joints” between the religion clauses does not endorse discrimination against religion. Where the purpose of the tax credit was to benefit family choice generally and no one religion particularly, the guidance of Trinity Lutheran would favor inclusion of both non-sectarian and sectarian schools.
The Liberty Justice Center And American Federation for Children Amicii submit that the application of Blaine Amendments to school choice programs keeps children from low income families captive, that the amendments turn the Establishment Clause on its head by punishing rather than protecting minority religions, and that Blaine Amendments, which are grounded in religious animus, violate the Equal Protection clause.
Georgia Goal Scholarship Program, Inc. Georgia’s corollary to the Montana tax credit program is critically important to students. Grounded in religious animus and racial bigotry, Blaine Amendments cannot be permitted to stand in the way of minority children’s education. The application of these amendments to minority students in the ante-bellum and post-civil war south forced African American students into industrial education and denied them the classical liberal education available to others.
The Rutherford Institute A relic of 19th century anti-Catholicism, Montana’s Blaine Amendment, like those of the thirty seven states that retain such provisions, discriminates among religions in violation of the principles of neutrality toward religion required by the federal Establishment Clause.
Americans for Prosperity And Yes. Every Kid. The Montana constitution does not reach tax credits, yet the state Supreme Court applied the constitution in violation of the rights of those who could not be verified as non-religious. Tax credits are not appropriations of public funds. The Montana Supreme Court erred in establishing a religion of secularism. Although not raised in prior proceedings, amici submit that Montana has engaged in unconstitutional viewpoint discrimination by denying equal third party funding to all students.
The Becket Fund for Religious Liberty Because they are grounded in religious bigotry, Blaine Amendments are presumptively unconstitutional. Reenactment of Montana’s Blaine Amendment in 1972 did not cure its racial animus. Application of the Montana no-aid provision violates the principles articulated in Trinity Lutheran.
Senators Steve Daines, Tim Scott, John Kennedy, And Marsha Blackburn And Representative Greg Gianforte Montana’s no-aid provisions remain exactly as they were in 1889. The application of the Blaine Amendment discriminates among religions and cannot survive analysis under Trinity Lutheran. Locke concerns direct funding of clergy education and does not embrace the kind of global exclusion of religious entities from available benefits that Montana has upheld here.
Montana Catholic School Parents, The Catholic Association Foundation, And The Invest In Education Foundation Amici parents provide anecdotal evidence of the benefits of children’s placement in religiously affiliated schools. The anti-Catholic history of the Blaine Amendments precludes their present application. The application of Montana’s ‘no-aid’ provision interferes with parents’ fundamental interests in governing their children and their children’s educations.
Oklahoma, Georgia, Arizona, Alabama, Alaska, Arkansas, Kansas, The Commonwealth of Kentucky By And Through Governor Matt Bevin, Louisiana, Governor Phil Bryant of The State of Mississippi, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, And West Virginia Montana could not and did not cure the constitutional deficiencies in the application of the no-aid provision by dismantling the program in its entirety. Federal intervention is warranted under the Supremacy Clause, which requires that the federal courts deny the effect of unconstitutional state laws. Even were state Blaine Amendments considered to be constitutionally acceptable, they do not reach tax credits which continue to permit private control of educational funding, particularly where it is individual students and not religious institutions who benefit from the scholarships. Upholding the Montana decision will jeopardize the programs of other states, some of which have concluded that their tax credit programs do not violate the First Amendment. The harm from upholding Montana’s decision would flow to other benefits and would fall particularly on low income families.
The Honorable Scott Walker Wisconsin’s former governor and school choice proponent argues that the direct funding of religious education that was present in Locke is not present in this case and that in any event Locke should be overruled, as any status-use distinction to be drawn with respect to funding cannot survive constitutional scrutiny. The attempt to distinguish Locke away in Trinity Lutheran is not sufficient: Locke must be overruled in its entirety.
The Cato Institute Montana’s Article X, Section 6 violates the Free Exercise Clause as applied to Montana’s tax credit program, for exclusion from public programs because of religion evinces hostility toward religion and lacks the neutrality that the constitution prescribes. While the Establishment Clause forbids government entanglement with religion, it likewise prohibits the government from handicapping religion. In avoiding entanglement with religion, the state must guard against discriminating against religions. Application of the Montana Blaine Amendment creates obstacles solely on the basis of religion and as such violates the First Amendment. It is error to consider a tax credit to be an expenditure of public funds. And exclusion of schools because of religion creates rather than diminishes conflict within communities, for those who are forced to forego choice will be at odds with those who would impose their choice upon them.
Edchoice, Reason Foundation, And The Individual Rights Foundation Proponents of educational and individual choice join with free market libertarians to offer the observation that states legislate in favor of school choice year after year with full awareness that litigation will ensue and with bring with it families’ fears that their children’s schooling will be disrupted by the litigation. Social science documents improved educational outcomes for students. The constitution does not support exclusion of religion from public benefits. Public school students do not suffer because of school choice programs but become attuned to the existence of many views within society. Finally, the provision of school choice programs may diminish the amount a state needs to expend on education, creating a savings benefit.
The Opportunity Scholarship Fund This Oklahoma Scholarship Granting Organization notes that Oklahoma’s laws are substantially similar to Montana’s, but Oklahoma’s programs have been upheld as constitutional under Zelman. The organization is concerned, however, that any acceptance of a scholarship by a family with a child with a disability will be seen as accepting a benefit which would preclude receipt of federal disability support. Oklahoma argues that this concern would be alleviated by the Court’s ruling that exclusion of religious schools from the scholarship program is unconstitutional.
Pioneer Institute This institute, describes itself as one that fosters civic discourse, submits that application of Blaine Amendments, grounded in anti-Catholic bigotry, offends the First Amendment. The institute provides a detailed history of state and federal Blaine amendments.
The Center for Constitutional Jurisprudence This litigating branch of the Claremont Institute, which focuses on the law as conceptualized by the Framers, observes that religious establishment flourished in the colonies but concern about religious compulsions followed the revolution, leading to the promulgation of the protections of individual liberty from state intrusion that the First Amendment guarantees. The First Amendment operates to constrain the federal government in order to protect religious liberties, not to deny them or to codify hostility toward religion. Montana’s laws and interpretations of those laws evidence that hostility and, as such, cannot survive constitutional analysis, as they violate the Free Exercise Clause.
The American Center for Law And Justice The ACLJ argues that it is not constitutionally permissible to deny generally available benefits on the basis of religion. The Locke decision, questionable in its own right, is not controlling in this case, as it involved direct aid in training for professional ministry. The ACLJ questions the extreme and disruptive logical outcomes of the exclusion of benefits on the basis of religion. Such exclusion would permit charitable deductions to nonprofits seeking to reduce famine but not to support Jewish community life, or permitting contributions to Ivy League schools but not Jesuit universities.
Mackinac Center for Public Policy This center for free market public policies asserts that school choice programs in Michigan have significantly enhanced student educational attainments. A determination upholding the Montana decision could impact Michigan’s programs, relegating students who have benefitted from choice to poorly performing public schools.
The Foundation for Moral Law This foundation supports strict construction of the constitution. Montana’s laws and actions violate the federal constitution, as they make hostility toward religion a state policy, which the First Amendment forbids. The Framers feared that the government would penalize citizens for not believing as the state thought that they should, which is precisely the result of the Montana decision. The First Amendment constrains the government from inhibiting religion and as such, it precludes policies which exclude religion entirely from general benefits. The state may not unduly burden religion nor may it exclude religion. The Trinity Lutheran decision should direct the outcome in this case.
The Solicitor General of The United States Montana’s exclusion of sectarian schools because they are sectarian schools violates the Free Exercise Clause because so doing imposes special disabilities upon religion. The state cannot avoid the impact of the no-aid provision, grounded in religious antipathy, by attempting to fashion a remedy that would end the program entirely. As the Montana law was unconstitutional from the beginning, the Montana Supreme Court could not by any measure remedy the statute but had only the power to acknowledge the statute’s constitutional deficiency.

 

Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019

 

 

 

 

 

Judicial Encroachment on Speech Rights Must Be Articulated with Particularity

Bank of Hope v. Chon, No. 18-1567 (3d Cir.) September 17, 2019.


The trial court in this embezzlement case erred in failing to articulate why speech suppression was necessary to the fair and orderly proceeding of the case.  The Court’s order forbidding defendant from contacting bank shareholders to garner support was entered without the court’s stating its reason for so doing, and failed to consider less restrictive alternatives, all in violation of defendant’s First Amendment rights.

Bank of Hope v. Chon (3rd Cir., 2019)

Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.


A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)

Court May Limit Public Access Where Proceedings Involve Minors and Intimate Facts

Jane and John Doe, et al. v. Aberdeen School District, et al., No.  18-cv-00125 (N.D. S.D.) September 17, 2019.


The First Amendment requires that judicial proceedings be open to the public, the Rules of Federal Procedure require identification of the parties before the court.  Nonetheless, courts may permit pseudonymous proceedings where the totality of the circumstances indicate there is a substantial privacy right that permits limitations of access rights. Courts may consider whether the government is being challenged,  whether intimate facts are involved in the case, whether criminal prosecution may ensue, and, in the Sixth Circuit, whether minor children are plaintiffs.  As the facts in the case are both intimate and involve children, the court will permit pseudonymous proceedings.

Doe v. Aberdeen Sch. Dist. (D. S.D., 2019)

Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).


Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)

Litigants’ Agreement Cannot Limit Public Access to Courts

Kentucky v. Marathon Petroleum Company, No. 3:15-cv-354 (W.D. Ky.) September 17, 2019.


First Amendment and common law rights of access cannot be waived by any party’s failure to object to a motion to seal or by the parties’ consent to place records under seal. Access rights rest with the public and may be limited in the court’s discretion for good cause, including the potential of disclosure of corporate agreements to impede corporate contract negotiations.

Kentuchy v. Marathon Petroleum Co. (W.D. Ky., 2019)

 

 

“Fake” News, Real Consequences: Circus of Suits Against Media Concerning Seth Rich Murder March Along

Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.).  District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.).  Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).


News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.  

Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage.  Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced  the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.  

As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.

Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.  

In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story.  Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.  

Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer.  Butowsky appeared in the media with commentary about the WikiLeaks allegations.

The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York.  The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.  

Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident:  harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable. 

As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.  

Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract. 

More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.  

Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler.  Wheeler did not meet with success:  his case in the Southern District of New York was dismissed at the pleading stage.

The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter.   Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox. 

Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch. 

Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.

Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting.  Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.

The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.

Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published. 

The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.

Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression.  The arrangement and presentation of information factors into the analysis.

No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.

Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person.  Nonetheless, the complaint provides allegations sufficient to plead malice.

Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice. 

The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could.  This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.

Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery.  The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing. 

The Story Continues in Courts.  Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing.  Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken.  The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false. 

Rich v. Fox News Network, LLC, et al. (2nd Cir.)

Butowsky v. Folkenflik, NPR, at al. (E.D. Tex.)

Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018)

Non-Theists Haven’t Got a (Legislative) Prayer, Third Circuit Holds

Fields, et al. v. Speaker of the House of Pennsylvania Representatives, No. 18-2974 (August 23, 2019).  Mandate issued September 16, 2019.


The Pennsylvania legislature invites only theists as guest chaplains to open sessions with prayer.  The Third Circuit found no constitutional infirmity in this practice.

The federal appellate court observed that prayer presupposes a higher power and that only theistic prayer is consonant with the historic tradition of invoking divine guidance in lawmaking.  

Legislative prayer is government speech, particularly where the government is both speaker and listener, and is not susceptible to First Amendment and Equal Protection challenges.  Signage and the speaker’s request that guests stand during prayer is not coercive.

Looking to History and Tradition. Supreme Court precedent looks to historic tradition to evaluate Establishment Clause challenges, whether with respect to public prayer or public monuments.  As legislative prayer has been a traditional practice, having both religious and secular significance, it works no constitutional harm.  

Prayer Definitionally Involves Divinity. Because by its very nature prayer presupposes a divine power, only theists prayer can achieve all the purposes of legislative prayer.  To confine prayer traditions to theistic prayer does not, notwithstanding prayer’s inherently religious nature, institute religious orthodoxy.

Religious Status Not Compelling. The non-theists’ challenge is not improved because of their recognition as religions, for that status does not change the nature of the prayer’s permissibility.  

Historic Conformity, Contemporary Neutrality. Because the Pennsylvania legislature has conformed to history in its choice of chaplains, because non-theists cannot offer the sort of prayer tradition contemplates, and because the legislature does not direct the content of prayer, Pennsylvania has not impermissibly preferenced one religion over another.  

A non discriminatory and inclusive practice of selecting theistic chaplains to lead prayer is acceptable under Town of Greece v. Galloway, 512, U.S. 565 (2014) under the Third Circuit’s view that prayer invokes divine guidance and presupposes a higher power.  Pennsylvania’s invitation program lends itself to greater constitutional acceptability than is a practice of selecting a single permanent chaplain from one denomination.

Not Must, But May. The Third Circuit noted that the Pennsylvania legislature need not exclude nontheists from legislative prayer, only that it is not impermissible to exclude non theists.  

Inclusiveness Has Limits. The court continued that an unbounded focus on “non-discrimination” could wreak havoc with selections, essentially creating a “heckler’s veto” on fringe groups.  

Another Voice Raised in Dissent.  A dissenting justice questioned the congruence with history that the other two members of the panel handily found.  Even if history were satisfied, the dissent perceived that the legislature has established a religious orthodoxy that violates the Establishment Clause. 

Where Judges Fear to Tread. The dissent criticized the majority for venturing into the very areas that the Establishment Clause forbids: courts are not to address questions such as the nature of prayer, what is divine, and so forth.

Consider the Outcome, Not Its Rationale. The dissent perceived the permissible “theistic” limitation to be so much obfuscation:  the real practice of the legislature is to exclude from guest chaplaincy certain religious groups and certain religious beliefs.

Tradition As It Was, Not As It Is Imagined to Have Been. The tradition embraced by the Founders is not one of exclusion but of inclusion. Early debate on the appointment of a chaplain ended in favor of doing so, and no faith was excluded and no faith was favored.  The notion that the Framers would not understand atheism as a faith distorts the historical inclusiveness that is central to the examination of history and would preclude inclusion of all manner of established traditions.

Tradition Has Its Limits. The dissent cautioned against finding too great a constitutional comfort in history, as history offers no justification for contemporary violation of constitutional guarantees.

Guarantees Not Honored. The promises of the Establishment Clause are governmental neutrality and non-discrimination.  The Pennsylvania practice falls short of the mark, demanding that guest chaplains assert a belief in God and permitting only those who do believe to serve.

Fields v. Speaker of Pa. House of Representatives (3rd Cir., 2019)