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.

 

Massachusetts Trial Court Considers the Constitutional Contours of End of Life Care

Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

Communications Breakdown: Political Consultants and the United States Both Sought — and Obtained — Certiorari Review of the Constitutionality of Exceptions to the Federal Ban on Automated Cell Phone Calling

William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631.  Petition for Certiorari granted January 8, 2020.


The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages.  Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.  

The TCPA prohibits calling cell phones without consent absent an emergency.  This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.   

The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.

The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact.  Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.

The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.  

The American Association of Political Consultants’ views are diametrically opposed on both grounds.  The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt.  Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.  

It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit.  Severing an exception to an unconstitutional statute works no remedy, they argue.

A scheduling order has not yet been published.  There are two other petitions for certiorari pending in on related issues for which no action has been taken.

Petition for Certiorari: Barr, Attorney General, et al. v. Am. Assoc. of Political Consultants

Respondents Brief in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

Petitioners’ Reply in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

 

Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)


Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

When Constitutional Clauses Collide:  Citizens’ Challenge to Montana’s Tax Advantaged School Choice Plan Seeks First Amendment and Equal Protection Review.

Espinoza, et al. v. Montana Department of Revenue, et al. No. 18-1195.  Oral argument set for January 22, 2020.


Many families hope that education will pave the way to successful adulthood.  Frequently private schooling is sought to serve that end, but many families find that no matter how arduously they work, the funds necessary to obtain that private schooling remain elusive:  scholarship help is a necessity for many who want to send their children to private school.   

In 2015, Montana enacted legislation providing a dollar-for-dollar tax credit, up to $150.00 annually, for donations to scholarship providing non-profit entities.  The non-profit entities would in turn use the donations to award scholarships, paid directly to the schools.  

Some 28 states have enacted at least 57 programs similar to Montana’s, called “school choice” programs.   Almost all private schools in Montana were qualified recipients of these tax advantaged scholarships. Yet very many of these schools were directly or indirectly affiliated with religious institutions.

Montana’s Constitution, Article X, Section 6, Part 1 prohibits the payment of state money, directly or indirectly, to fund religious activity.  This limitation was incorporated in the tax credit statute. Following enactment of the tax credit, state tax authorities promulgated a regulation echoing the preclusion of the use of tax money for religious entities.

Fearing that scholarships were in jeopardy, parents sued the state to enjoin it from precluding awards of scholarships to religious educational institutions, asserting that precluding aid would violate their First Amendment and Equal Protection rights.  The state countered that permitting the scholarships would run afoul of the state’s First Amendment and state constitutional obligations. 

The parents prevailed in the trial court but on appeal the Supreme Court of Montana, unable to split the constitutional baby between sectarian and nonsectarian beneficiaries of the tax credit program, declared the entire statute unconstitutional.  

The matter is now before the Supreme Court. 

Petitioners’ Challenges.  Petitioners urge the United States Supreme Court to reject the Montana Supreme Court’s wholesale invalidation of the entire tax credit statute as in violation of the federal religion clauses.  The parents ask the Court to determine the Montana state constitutional amendment forbidding aid to religion to be unconstitutional as applied to them, and to find Montana’s actions to be discrimination against religion in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Petitioners point out that Montana’s prohibition on state funding of any religious activity had its origins in the anti-Catholic Blaine Amendments of the 19th Century.  As religion is an inherently suspect clause, the state constitution as applied offends the 14th Amendment Equal Protection clause, petitioners argue.  

The wholesale ban on any and all state aid to religion does not support government neutrality but rather evinces hostility toward religion and, as such, cannot survive constitutional review, petitioners argue.  This is true, petitioners assert, whether any of the tests of Zelman v. Simmons-Harris, 536 U.S. 639 (2002) or Lemon v. Kurtzman,   403 U.S. 602 (1971) or the teachings of the recent Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012  (2017) are applied.

Zelman requires only a religiously neutral program with choice centered in the individual, not the state, which petitioners assert is true of the 2015 Montana legislation.  In contrast, the state’s ban of all aid is hostile, not neutral, and works to deprive individual families of choice. Petitioners submit that however awkward it may be in application, Lemon in no sense endorses the antipathy to religion that Montana’s actions evince.

Montana’s dismantling of the tax credit program, which was available to all without respect to religion, advances no secular purpose where, petitioners argue, its only effect is to trample the rights of the religious with no concern for students.  Petitioners urge that the preclusion of state funding of religious professionals’ training, found to be unconstitutional in Locke v. Davey, 540 U.S. 712 (2004), is inapposite, for that case concerned direct aid to churches in developing their clergy, which is not true of the Montana case.   

Montana’s Response.  Montana does not argue mootness, but does argue that the Montana Supreme Court’s invalidation of the tax advantaged school choice plan does away with constitutional concerns.  All aid has been precluded: no hostility, disparity or discrimination can be found where the statute no longer exists.  

Montana perceives that Espinoza spotlights the intersection of church/state traditions:  non-discrimination is crucial to religious freedom. The Establishment Clause permits but does not compel aid to religion. If the state is opposed to aiding religious schools the state can, as it has done here, decline to offer any aid at all.  Because petitioners concede that this is true, Montana argues, no constitutional claim remains.  

There can be no intrusion on the Free Exercise of religion where no program exists at all, the state submits.  Invalidation of the entire program works no coercion, as  the invalidation restrains the government, not the individual.

Montana denies that the 1972 re-enactment of the state constitutional no-aid clause ratified or endorsed the religious antipathy that gave rise to the 19th century Blaine Amendments.  Montana offers that the new constitution, enacted in 1972, sought to protect religious liberty by means of strict state separation from religion.  

In this case the state supreme court has protected religious freedom by enforcing the structural barrier between religious schools and the government that the no-aid clause contemplates.  Striking down the tax credit in its entirety ensures that no one is preferred and that no one is penalized for exercising their faith. 

Historic opposition to state funding of religious entities demonstrates the constitutionality of such prohibitions, the state contends.  Trinity Lutheran is not on point, for the tax credit plan does not involve a generally available benefit.

The state has not banned aid to education.  Moreover, where thirty eight states fall in line with Montana’s position, this is history to which the U.S. Supreme Court ought to defer.

The U.S. Supreme Court should not interfere with the constitutional and judicial authority of the state by enforcing a statute that the state Supreme Court has held to be unconstitutional, the state submits.   If it is conceded — and it is — that the state could decline to provide a school choice program, then it cannot be correct that if a school choice program is forbidden by the state constitution, then the application of the state constitution must be in violation of the federal constitution, and, therefore, a void statute must be enforced.

As there is no longer a school choice tax credit program, there is no unequal treatment, and therefore no Equal Protection clause violation.  Nor is there any Establishment Clause issue whether the state chooses to offer greater separation than the federal religion clause requires.

The state offers that the Supreme Court cannot recognize an amorphous “free exercise” violation where petitioners have not identified any violation. The Free Exercise clause inhibits the government: that some difficulty in exercising religion might beforeall individuals does not rise to the level of unconstitutional government prohibition on the free exercise of religious rights.

The operation, or not, of a tax advantage works no prohibition on free exercise.  Anyone can give to scholarships as they see fit: they just will not receive a tax credit.

There is no generally available benefit from which petitioners have been excluded because the tax credit program has been declared void ab initio

Without more, the state constitution’s no-aid close does not violate the Free Exercise Clause. In all, the fact that the Establishment Clause may allow a measure does not mean that the Free Exercise Clause compels it.  The state notes that where school choice is concerned, Justice Beyer has inquired of the fate of the interests of the families who would not wish to fund religious education at all.

Montana cautions that if the Supreme Court were to invalidate Montana’s no aid clause, grave constitutional concerns would arise.  Zelman does not require a single answer to whether  a “no aid” provision helps or hinders religion  Petitioners’ position lacks good sense: it is unimaginable that a statute declared unconstitutional under state law can spring back to life following federal constitutional review.

Zelman observed that choice that includes religion need not violate the Establishment Clause but declining funding is not the establishment of religion.  Lemon poses no problem because there are no unconstitutional effects created by the Montana Supreme Court’s invalidation of the school choice program.  Entitlement to a tax preference is not an establishment clause issue. Similarly, across the board disentitlement works no entitlement. 

Petitioners’ Reply.  Petitioners liken the state’s position to that of the authorities who shuttered schools rather than conform to the constitutional command to desegregate. 

Where the state emphasizes that petitioners concede that the state need not offer an aid program, the petitioners point to a comparable concession by the state:  the state cannot avoid the reality that the provision of a program that excluded religious schools would violate the federal constitution. Where protected classes are concerned, the Supreme Court has recognized that invalidating a program to prevent inclusion is just as discriminatory as exclusion from the start.  

It is not true that the Montana Supreme Court ‘harmonized’ federal and state constitutional interests.  Rather, the state understood that severability — permitting secular while forbidding sectarian aid — was a constitutional impossibility.  Eliminating a program to avoid unconstitutional results does not avoid constitutional concerns but confirms them.

Trinity Lutheran cautions that the Court ought not engage in a wooden application of Free Exercise principles:  indirect coercion or indirect penalties are within the ambit of the Free Exercise clause.  

The only reason the school choice tax credit was eliminated was concern over aid to religious schools.  The result in this case is worse than that in Trinity Lutheran, for the Espinoza petitioners have already relied on the availability of aid.  The additional financial burden and potential educational exclusion imposed on the petitioning parents falls within the concerns the Free Exercise Clause contemplates.

Locke concerned direct funding of professional clergy education, a circumstance not present here.  Further, petitioners argue that there is no “use” limitation on Trinity Lutheran’s holding.  Such an argument is irrelevant, nonetheless, where status discrimination exists: aid will be denied based only on religious status.  If religion and religious education cannot be disentangled, the state disproves its own argument: status v. use is a distinction without a difference.

Contrary to the state’s assertions, the weight of history is not on the state’s side, petitioners counter.  Most early considerations of government involvement in religion concerned direct aid to churches. This is not the case here, and there is no overwhelming reason to believe that aid that could benefit religious and secular schools would be objectionable to the founders. 

The proffered reasons for the wholesale reenactment of the Blaine Amendment in 1972 are of no moment, petitioners insist, where the significance of the measure is that of singling out religion for different treatment, which strikes at the core of Equal Protection clause concerns.  Even if it were accepted that a law’s constitutionality, or not,  cannot be determined by the motives of its enactors, the effects of a statute are reasonably evaluated in addressing constitutional concerns.  

As Montana has entirely banned aid to students seeking religiously affiliated private education, Zelman’s principles of neutrality and individual choice are decimated.

The question is not of “resurrection” of a defunct statute:  the issue is that Montana’s Supreme court determination forever precludes aid.  Similarly, the state’s resuscitation rhetoric must fail, as statutes are routinely revived following judicial review: so doing works no “inverse federalism.”

Petitioners submit that the federalism fears described by the state are phantasms.  There exists ample room for Montana to work within the “play in the joints” of the religion causes.  Montana may enact a school choice program without violating the Establishment Clause but it need not, and this would not violate the Free Exercise Clause. In contrast, adopting a wholesale ban on aid to religion would violate both religion clauses.  

Principal Briefs

Brief for Petitioners

Brief for Respondents

Reply Merits Brief

Joint Appendix

Amicus Submissions:  Note that the United States, as Amicus for Petitioners, Will Participate in Oral Argument 

The United States

Petitioners’ Amici

131 Current and Former State Legislators

Agudath Israel of America

Alliance for Choice in Education

American Center for Law & Justice

Americans for Prosperity and Yes Every Kid

Arizona Christian School Tuition Organization and Immaculate Heart of Mary Catholic School

Billy Graham Evangelistic Association et al.

Center for Constitutional Jurisprudence

Center for Education Reform et al

Christian Legal Society et al

EdChoice, Reason Foundation, and The Individual Rights Foundation

Forge Youth Mentoring

Foundation for Moral Law

Georgia Goal Scholarship Program Inc

Honorable Scott Walker

Independence-Institute

Jerry and Kathy Armstrong et al

Jewish Coalition for Religious Liberty

Justice and Freedom Fund et al

Liberty Justice Center and American Federation for Children

Mackinac Center for Public Policy

Montana Catholic School Parents, Catholic Association Foundation, and Invest in Education Foundation

Montana Family Foundation

Oklahoma et al

Opportunity Scholarship Fund

Pioneer Institute

Rusty Bowers Speaker of the Arizona House of Representatives et al

Senator Daines et al

The Becket Fund For Religious Liberty

The Rutherford Institute

Respondents’ Amici

American Federation of Teachers et al

Baptist Joint Committee for Religious Liberty

Colorado et al

Freedom from Religion Foundation et al

Montana Association of Rabbis

Montana Constitutional Convention Delegates

Montana Northern Wyoming Conference United Church of Christ

National Disability Rights Network et al

National School Boards Association et al.

Public Funds Public Schools

Religion Law Scholars

Religious and Civil Rights Organizations

State of Maine

Tennessee Education Association

 

 

 

Fact v. Fiction Friction: Native American Tribe and Leader Sue “Billions” Showrunners in Defamation

Cayuga Nation and Clint Halftown v. Showtime Networks, et al., No. 157902/2019 (N.Y. Sup. Ct.).  Oral argument on motion to dismiss scheduled for December 23, 2019.


“Billions” is a CBS/Showtime drama series that explores the manners and mores of titans of the New York financial and legal realm.  A fatherless self-made billionaire hedge fund owner squares off against a politically powerful adult child of privilege who cannot escape the influence of his ruthless father.

The Cayuga Nation and its leader object to Billions’ portrayal of them, asserting that the show has intimated the nation and its leader engaged in improper business conduct.  Showtime and its creators demur, asserting that this fictional account bears only a nominal similarity to the plaintiffs, that no viewer would mistake the drama for fact, that the nation as sovereign cannot maintain an action in defamation, and that any claim of misappropriation of Halftown’s likeness must fail, as no likeness has been appropriated and no image has been used in trade or advertising.

Defendants argue that fiction must be accorded strong First Amendment protection, and that the high standard applicable to defamation in fiction cases requires that any representation be unmistakable, indistinguishable from a real person, and involve defamatory statements concerning the target of the defamation. 

None of these standards can be met, defendants submit, where the female tribal leader acting in the show could not be mistaken for the real leader.  Moreover, the portrayal of the tribe and its leaders was not defamatory but rather portrayed the nation and its leader as politically astute.  There was no depiction or suggestion that either the nation or the its leader engaged in any criminal activity, precluding success in claiming defamation per se.

Plaintiffs insist that conclusory arguments without factual support do not support dismissal.  The nation is not without capacity to defend its good name and the idea that oblique representations cannot be actionable distorts the law.

Case Documents:

Summons and Complaint


Memorandum of Law in Support of Dismissal

Case Law in Support of Dismissal

Brafman v. Houghton Mifflin

Milo v. CBS

Summerlin v. Washington Star

Air Zimbabwe v. Tribune


Memorandum of Law in Opposition to Dismissal

 

Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.

Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  


A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio