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Archive for the ‘Constitutional Law’ Category

Know Your Constitution (8): What is State Action?

This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.

Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.

This post deals with the important concept of state action. Non-lawyers should understand that private persons cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

The Basics

The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

In a very real sense, the state action requirement serves a gatekeeper function: you don’t get to the question of whether 14th Amendment rights have been violated unless there is state action.

Over the years, the Court has developed several technical tests for determining when the conduct of a nominally private person or entity constitutes state action: (1) the public function test, (2) the joint action/symbiotic relationship test and (3) the nexus test.

Why Do We Care About State Action?

The obvious reason is that the 14th Amendment explicitly imposes this requirement. But there are sound policy reasons as well for this public/private distinction.

1. Freedom First is the interest in personal autonomy or freedom. As private persons we do not necessarily want to be subject to constitutional requirements or norms, even if we think some of those norms are good ones. Further, if these norms applied to private persons, then that would invite federal judicial intervention and supervision, thereby interfering with our private choices. Nobody wants to be sued and hauled into federal court.

2. Federalism The second policy reason is a bit more complicated, but it is related to the first. Ours is a federal system in which states should, and do, play a major role in protecting individual rights of all kinds. If private persons are regulated by the 14th Amendment, then the federal judiciary would be monitoring and evaluating private conduct, whereas that is a primary role of the states in our federal system.

This federalism concern also arises in connection with section 5 of the 14th Amendment which gives Congress the power to enforce section 1 of that amendment. If the 14th Amendment covered private conduct, it would follow that Congress could regulate much more private conduct than it can with the state action requirement in place.

Some Caveats

Keep in mind that I’ve been writing about state action and the 14th Amendment only. In contrast, the 13th Amendment, which prohibits involuntary servitude, applies to private persons as well.

In addition, there are other ways for Congress to regulate private conduct irrespective of section 5 of the 14th Amendment. Perhaps the best example is the Commerce Clause. Of course, Congress may not violate our constitutional rights even under the Commerce Clause.

Which brings me to my last point. Though Congress is obviously not a state, it may nevertheless not violate equal protection and due process because of the Fifth Amendment’s due process clause. Similarly, Congress may not violate the provisions of the Bill of Right because its provisions expressly apply to the federal government.

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Written by snahmod

February 19, 2015 at 2:27 pm

Posted in Constitutional Law

Anti-SLAPP Statutes and State-Law Claims: Is a City Protected?

Anti-SLAPP Statutes: Background

I blogged some time ago about anti-SLAPP statutes and section 1983 both in state courts and federal courts. Readers will want to consult both my post of July 23, 2010, and my post of April 27, 2011, for those discussions and relevant background.

SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances or for otherwise engaging in speech.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition or free speech.

Consider the following Washington Supreme Court decision holding that a city was not protected by an anti-SLAPP statute in connection with state-law claims (not section 1983 claims).

Henne v. City of Yakima, No. 89674-7 (Wash. Jan. 22, 2015).

In Henne, a former police officer sued the City of Yakima under state law, alleging that it had created a hostile work environment because of the way it handled an investigation into complaints against the officer. The city moved to dismiss on the ground that it was protected by Washington State’s anti-SLAPP statue, Revised Code of Washington §4.24.525.

Ultimately, the Washington Supreme Court, in opinion by Justice Sheryl Gordon McCloud, ruled against the city on the ground that the plaintiff’s state-law lawsuit was based on communications made by other officers to the city and not communications made by the city itself It declared:

“We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government’s own communicative activity.”

The Washington Supreme Court expressly did not decide whether a city could ever be protected by the anti-SLAPP statute. However, it observed that the statute “protects the ‘right of free speech’ and ‘the constitutional right of petition,’ (RCW 4.24.525(2)), rights that the constitution grants to individuals against the government not to the government against individuals.” (emphasis added).

Justice Mary E. Fairhurst, joined by Justices Charles W. Johnson and Mary I. Yu. Fairhurst, wrote a separate opinion arguing that cities should be able to use the anti-SLAPP statute, but concurred with the majority because she said the underlying suit wasn’t a SLAPP suit.

Comments

1. The unresolved issue in Henne is one of statutory interpretation: does the Washington State anti-SLAPP statute, which refers to “persons,” cover cities?

2. The deeper conceptual issue is whether cities have any petition or free speech rights under the United States Constitution. See my post on government speech of March 28, 2011, and the immediately preceding posts on Justice Souter’s views of government speech.

3. Whatever the answer to the conceptual question, a state can protect cities in an anti-SLAPP statute even if they do not have such petition or free speech rights.

2. If a particular anti-SLAPP statute is interpreted to protect cities, then that, of course, has practical implications for its application to section 1983 claims as well, and not just state-law claims.

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Written by snahmod

February 9, 2015 at 2:02 pm

Freedom of Speech (4): Internet Threats and Elonis v. United States

Prior Related First Amendment Posts

I previously blogged about some of the basics of free speech doctrine.

I addressed its three primary rationales–marketplace of ideas, self-government and individual autonomy–on January 19, 2010. I next considered the roles of content, medium and forum in free speech jurisprudence on January 29, 2010. I then discussed the early years of free speech doctrine–the clear and present danger years–on February 14, 2010. Finally, in an internationally popular post for non-lawyers, as part of my Know Your Constitution series, I addressed hate speech on December 4, 2013.

In 2015, the Supreme Court will decide Elonis v. United States, No. 13-983 (argued 12-1-14), a case involving internet threats. So I’d like to say some things about the relevant free speech jurisprudence as well as the case itself.

Free Speech Background: The “Multi-Tier” Approach and True Threats

There is,  it may surprise some to know, a hierarchy of speech that receives greater or lesser protection depending on its content.  Political speech receives the highest First Amendment protection; commercial speech typically receives intermediate level protection; and obscenity, fighting words, child pornography and “true threats” receive no First Amendment protection at all. These last kinds of speech are in a kind of First Amendment hell, so to speak, because each of them is considered to have little or no First Amendment value. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Once it is determined that the relevant speech fits into this last group, then it is not covered by the First Amendment.

The Supreme Court defined a true threat in Virginia v. Black, 538 U.S. 343 (2oo3), a case involving cross-burning, in the following way: the speaker means to communicate a serious expression of  intent to commit an act of unlawful violence against an individual or group of individuals. The essence of a true threat is intimidation because it places the victim in fear of bodily harm or death, although the speaker need not necessarily intend to carry out the threat. In Black itself, the statute required an intent to intimidate and various persons testified that they were in fact intimidated.

The theory is that this kind of threatening speech–assuming that one considers it “speech” rather than “conduct”–deserves no First Amendment protection because it silences speech by placing victims in fear of bodily harm or death.

The Issue in Elonis: Must the Defendant Subjectively Intend to Intimidate?

Elonis was convicted under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” More specifically, he was convicted of using the internet over a period of time to threaten his wife,  employees of the Pennsylvania State Police and Berks County Sheriff’s Department, a kindergarten class, and an FBI agent. The defendant contended the trial court incorrectly instructed the jury on the standard of a true threat. The court gave the following jury instruction:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

Elonis contended that the Supreme Court in Black had effectively required, as part of a valid true threat conviction, that a defendant must subjectively intend to intimidate, that he did not subjectively intend to intimidate, and that it was not sufficient that he could reasonably foresee (a negligence standard) that his or her statement would be interpreted as expressing an intention to commit bodily harm or cause death. The Third Circuit rejected Elonis’s argument, and the Supreme Court granted certiorari.

Comments

1. The Court could model the true threat doctrine on the incitement doctrine of Brandenburg v. Ohio, 395 U.S. 44 (1969), and rule that a true threat defendant (1) must subjectively intend to intimidate and (2) the statement must reasonably be so understood by its targets. This would provide the maximum breathing space for free speech, but at a major cost to those who were targets of a “clever threat-maker” as Elonis himself may have been.

2. The Court could model the true threat doctrine on the fighting words doctrine which, as Justice Kagan pointed out in oral argument, only requires an inquiry into the content of the speech–do the words amount to in-your-face epithets or personal abuse likely to provoke the average person to retaliate?–and not the subjective intent of the speaker. This position seems close to that of the Third Circuit in Elonis.

3. The Court could find a middle-ground state of mind requirement such as recklessness, by analogy to the knowing or reckless falsehood defamation standard of New York Times v. Sullivan, 376 U.S. 254 (1964). This would minimize the problem of the clever threat-maker but also provide a bit more free speech breathing space on the internet and elsewhere than the Third Circuit’s negligence approach. Moreover, it would preclude the criminalizing of statements on the internet and elsewhere that were not intended to intimidate but did so innocently in fact even if later determined to have been negligent.

Although predicting Supreme Court outcomes is not for the faint of heart, I expect that the Court will go with a variation of #3.

 

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Written by snahmod

December 15, 2014 at 4:53 pm

The Second Amendment and Section 1983: A Podcast

As many of you may know, Chicago-Kent’s CLE department has presented my two-day Conference on Section 1983 for over thirty years. The next one is scheduled for April  16-17, 2015.

As part of the most recent Conference in April 2014, I spoke in depth about the Second Amendment (Heller, McDonald and circuit case law) and its relation to section 1983.

I am pleased to present the 45 minute podcast of that presentation and hope you find it of interest. It’s a very good way to understand the basics.

Here is the audio:

 

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Written by snahmod

November 11, 2014 at 1:14 pm

Oyez’s Fourth Amendment Deep Dive

Here is a very nice Oyez Deep Dive into how the Roberts Court is interpreting the Fourth Amendment.

The Deep Dive features both text and video explanations (including a short video by me on section 1983 Fourth Amendment claims), and is geared to lawyers, law students and the public at large.

The Deep Dive can in fact serve as a primer for those unfamiliar with the Fourth Amendment.

Check it out here:

http://projects.oyez.org/shifting-scales/

You’re invited to follow me on Twitter @NahmodLaw.

Written by snahmod

October 22, 2014 at 10:00 am

A Video: The Religion Clauses, Town of Greece and Hobby Lobby

I spoke at Chicago-Kent on September 30, 2014, about the following:

THE RELIGION CLAUSES: UNDERSTANDING TOWN OF GREECE AND HOBBY LOBBY

The video is available here:

The student groups sponsoring the presentation were the American Constitution Society, Federalist Society, Christian Legal Society, Jewish Law Students and Muslim Law Students.

This presentation includes a comprehensive review of Establishment Clause and Free Exercise Clause jurisprudence, as well as the Town of Greece and Hobby Lobby cases.

I also set out my own (controversial?) views on the proper role of religion in the public square at the end of my presentation.

You can find more of my videos on such topics as section 1983 doctrine, the First Amendment, the Second Amendment and other constitutional law topics here: https://www.youtube.com/user/ChicagoKentLaw/playlists?sort=dd&shelf_id=12&view=50

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Written by snahmod

October 6, 2014 at 11:47 am

Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?

This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural due process.

The immediately preceding post and this post deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.

The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).

The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

Distinguishing Between Procedural Due Process and Substantive Due Process

The immediately preceding post deals with procedural due process which focuses on fair and timely procedures.

It is far less complicated and controversial than substantive due process, the subject of this post, which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.

One reason that substantive due process is so controversial is that it is not explicitly based in the text of the Constitution, thereby suggesting to some that the Supreme Court has acted improperly and has simply (or not so simply) made it up.

The History of Substantive Due Process: Economic Regulation/Family

The term “substantive due process” is a bit of an oxymoron since “due process” suggests procedure in contrast to substance. Nevertheless, the Supreme Court, beginning in the late 19th century and ending in the mid-1930’s, used substantive due process to strike down many state regulations dealing with economic matters such as employment relationships, work conditions and other attempts to regulate business interests.

Interestingly, perhaps the first use of substantive due process by the Supreme Court was in the infamous Dred Scott case in antebellum America. Here, the Court held that the Missouri Compromise was unconstitutional because it took away the property of slaveholders and thus violated substantive due process.

Even though substantive due process was typically identified with economic regulation, there was an important component that dealt with liberty in family matters. For example, in the 1920’s the Supreme Court ruled (in Meyer v. Nebraska and Pierce v. Society of Sisters) that states violated substantive due process when they prohibited parents from arranging to have their children learn the German language and also when they required all children to attend a public school while prohibiting them from attending religious private schools. These decisions thus address the non-economic, family related liberty component of substantive due process.

The Retreat from Substantive Due Process in Economic Matters

The high-water mark of substantive due process in economic regulation matters may have been reached in the early part of the 20th century in the (in)famous Lochner v. New York case. Here the Court struck down a New York statute that regulated the maximum hours that bakers could work as a violation of the liberty of contract of employers and employees to negotiate hours and working conditions in general without government interference.

But starting in the mid-1930’s, the Court retreated dramatically from intervening judicially in such matters (one aspect of what some have called “the switch in time that saved nine” in response to President Roosevelt‘s court-packing plan). Eventually the Court became incredibly deferential to state (and federal) regulation of economic matters, using in most such cases what lawyers call a “conceivable rational basis” test. In other words, so long as an economic regulation could be considered to have a rational basis, it did not violate substantive due process.

Current Substantive Due Process/Privacy Doctrine

Even though meaningful substantive due process review is now effectively dead in economic regulation matters, it has survived and subsequently thrived as applied to liberty in family and sexual matters.

There were hints of what was to come in Skinner v. Oklahoma, a 1942 equal protection decision that struck down sterilization as criminal punishment. Here, Justice Douglas famously said: “Marriage and procreation are fundamental to the very existence and survival of the [human] race.” But it was only in Griswold v. Connecticut, a 1965 decision invalidating a criminal prohibition against the use of contraceptives by married persons, that the Court expressly recognized a constitutional right of marital privacy, though there remained some question of its source in the text.

Thereafter, the Court expanded this right of privacy beyond marriage to include the right of a woman to terminate a pregnancy in certain circumstances, largely on family/personal autonomy grounds. Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which modified Roe, are the leading cases so ruling on the basis of substantive due process. However, the Court in 2007 cut back somewhat on the scope of the right in Gonzalez v. Carhart, at least in cases dealing with statutes prohibiting so-called “partial birth abortions.”

Finally, in Lawrence v. Texas, a blockbuster 2003 decision, the Court held, in an opinion by Justice Kennedy, that states may not criminalize intimate homosexual conduct. The ground here was expressly personal autonomy: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

As things now stand, Roe, as modified by Casey and Carhart, is still good law. Lawrence remains good law as well.

The hot issue regarding homosexual conduct that is currently percolating in the circuits is the substantive due process question whether the right to marry someone of your own sex is a fundamental right
 protected by substantive due process.

Written by snahmod

September 29, 2014 at 4:29 pm

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