Archive for the ‘First Amendment’ Category
Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)
The Tenth Circuit Decision
The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”
The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.
The Supreme Court Decision
The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »
The First Amendment Retaliatory Arrest Question
Suppose a police officer arrests a person with objective probable cause to arrest but with the subjective motivation to arrest him because of something he said, in violation of the First Amendment? Does the Fourth Amendment probable cause determination have any bearing on the section 1983 First Amendment claim for damages?
One would think that the answer should be “no” because these are separate constitutional violations. After all, if the police officer had instead subjectively arrested the plaintiff because of his race, wouldn’t there still be an equal protection violation and therefore a section 1983 equal protection damages claim?
The Supreme Court’s decision in Hartman v. Moore, a Retaliatory Prosecution Case
However, the answer to the First Amendment retaliatory arrest question may not be so simple after Hartman v. Moore, 547 U.S. 250 (2006), discussed in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:THE LAW OF SECTION 1983 (4th ed. 2011), at section 3:13. In this section 1983 case, the Court held that a plaintiff, who sued law enforcement officers contending that he was prosecuted because of his protected speech, had to allege and prove the absence of probable cause as part of his claim.
The Court reached this conclusion because, unlike in ordinary retaliation cases that involved a relatively clear causal connection between the impermissible motivation and resulting injury to the plaintiff, the causal link was far more attenuated in retaliatory prosecution cases: the plaintiff had to show that the impermissible motivation of the law enforcement officer caused the prosecutor to prosecute, a decision that was entitled to a “presumption of regularity.” Thus, according to the Court, it made sense in retaliatory prosecution cases to impose on plaintiffs this additional burden of pleading and proving the absence of probable cause. (Recall that prosecutors are absolutely immune from damages liability for their decisions to prosecute).
Certiorari Granted in Reichle v. Howards
Does Hartman‘s rationale apply equally to retaliatory arrest cases? Or is Hartman very different because of difficulty that retaliatory prosecution plaintiffs typically have in showing the causal link between the law enforcement officer’s impermissible motivation and the prosecutor’s decision to prosecute?
This is the issue now before the Court in Reichle v. Howards, No. 11-262, a case arising out of the Tenth Circuit. On Dec.5, 2011, the Supreme Court granted certiorari in Reichle to deal with the important question of whether there should be a Fourth Amendment probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech. Read the rest of this entry »
A Rare Unanimous Religion Clauses Decision by the Supreme Court
It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.
Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.
Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.
Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation. Read the rest of this entry »
Borough of Duryea v. Guarnieri: § 1983, Public Employees and the Petition Clause
The Supreme Court in 2011 handed down Borough of Duryea v. Guarnieri, 131 S. Ct. — (2011), which expressly rejected the minority position of the Third Circuit–see San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)–and adopted that of the other circuits. Specifically, the Court held that a public employee who claims government employer retaliation in violation of the Petition Clause must demonstrate that his or her petition raises a matter of public concern and is not just a private grievance. Otherwise, the public employee may not rely on the Petition Clause.
In the case before the Court, the § 1983 plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought his § 1983 action against the defendant borough. A jury awarded compensatory damages to the plaintiff and the Third Circuit affirmed, relying on its position that the Petition Clause may be used in public employee retaliation cases even if grievances and lawsuits giving rise to the alleged retaliation involved matters of private concern.
The Court, in an opinion by Justice Kennedy, reversed. It assumed that both grievances and lawsuits were generally protected by the Petition Clause but emphasized that its decision in this case related only to Petition Clause claims by public employees against their government employers. It then went on to rule that in the public employment setting, the Petition Clause was no broader in scope than the Free Speech Clause which had long had a public concern requirement. See Connick v. Myers, 461 U.S. 138 (1983).
(See also Pickering v. Board of Educ., 391 U.S. 563 (1968), dealing with balancing where public employee speech involves a matter of public concern, and Garcetti v. Ceballos, 547 U.S. 410 (2006), which excluded Free Speech Clause protection from government employer retaliation for public employee speech that is part of the employee’s job responsibilities; I extensively criticize Garcetti in my post of December 8, 2009).
Like speech, the Court argued, petitions could interfere with the efficient and effective operation of government; indeed, lawsuits were often even more disruptive than speech because they called for a government response. Further, judicial second-guessing and intervention imposed significant costs on government employers. Where a petition such as a grievance raised only an issue of private concern, the public employee was not acting as a citizen but was rather complaining to the government as employer, not as sovereign. Such a public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern was protected by the Free Speech Clause under Connick. Read the rest of this entry »
The government speech doctrine began in the Supreme Court with Rust v. Sullivan, 500 U.S. 173 (1991)–see post of September 7, 2010–handed down in Justice Souter’s first term, and continued through Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)–see post of December 30, 2010–handed down in Justice Souter’s last term.
My posts, which have separately addressed all of the Supreme Court’s government speech cases, were based on drafts of a then-forthcoming Brigham Young University Law Review article.
The article, now published, is entitled Justice Souter on Government Speech and its cite is 2010 Brigham Young Univ. L. Rev. 2097.
It is now available for downloading through the link below. I hope you find it informative.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795624.
Justice Souter could not have imagined in his first year on the Court that Rust v. Sullivan, 500 U.S. 173 (1991), which he joined–see post of September 7, 2010–would be transformed into the paradigmatic government speech case. He also could not have foreseen where the government speech doctrine would lead.
As his views on government speech evolved, they became increasingly thoughtful, even if not daring and path-breaking like the dissents of Justices Holmes and Brandeis in the First Amendment‘s “clear and present danger” years.
Justice Souter became increasingly concerned with the adverse effects of expanding the scope of the government speech doctrine and the consequent immunization from First Amendment scrutiny of government-directed speech.
His attempt–see post of November 10, 2010–to ground the government speech doctrine on the marketplace of ideas rationale was noteworthy. In addition, his emphasis on political accountability and the related need to know that government is both speaking and communicating a particular message was insightful.
Finally, he warned in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), of the need to reconcile the government speech doctrine with the Establishment Clause in order to ensure that the former did not swallow up the latter. See post of December 30, 2010.
For his contributions to, and wise cautionary observations about, the government speech doctrine, now-retired Justice David Souter deserves our appreciation.
Pleasant Grove City v. Summum: Justice Souter’s Last Government Speech Opinion
In Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), the Court, in an opinion by Justice Alito, held that a city’s rejection of a privately donated monument offered by the Summum sect for permanent display in a public park did not violate the First Amendment despite the city’s acceptance decades earlier of a privately donated Ten Commandments monument in the same public park. The city’s rejection of the Summum monument was not impermissible viewpoint discrimination because its previous acceptance of the Ten Commandments monument was government speech.
The Government Speech Function of Monuments
The Court looked to tradition and history to determine that the Ten Commandments monument was indeed government speech:
“Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” 129 S. Ct. at 1132-33.
Then, contending that a reasonable observer would know that a monument on government land was necessarily representative of the government’s message, the Court analogized public property owners to other property owners:
“It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely–and reasonably–interpret them as conveying some message on the property owner’s behalf.”
Government Speech Need Not Communicate a Particular Message
Finally, the Court observed that a monument could be government speech even if it did not communicate a particular message. It said:
“Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.
What, for example, is ‘the message’ of the Greco-Roman mosaic of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of John Lennon? Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may ‘imagine’ a world without religion, countries, possessions, greed, or hunger. Or, to take another example, what is ‘the message’ of the ‘large bronze statue displaying the word “peace” in many world languages’ that is displayed in Fayetteville, Arkansas?”
129 S.Ct. at 1135 (citations omitted). Read the rest of this entry »
Justice Souter’s Penultimate Government Speech Case: Garcetti v. Ceballos
In Garcetti v. Ceballos, 547 U.S. 410 (2006), an exceptionally important public employee free speech case discussed at greater length in a prior post, the Court held that a deputy district attorney’s First Amendment rights were not violated when he was allegedly retaliated against by his supervisors for writing a memo to them complaining of problems in the prosecution of a criminal case. The Court declared that public employee speech engaged in pursuant to that employee’s official duties was not protected from employer discipline by the First Amendment.
The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.
547 U.S. at 421-22. Read the rest of this entry »
I spoke about animal cruelty, crush videos and the Supreme Court‘s First Amendment decision in U.S. v. Stevens, 130 S. Ct. 1577 (2010), on October 21, 2010, at the Chicago Bar Association. I was asked to do so by the CBA’s Animal Law Committee.
My videotaped presentation, which I am pleased to make available to readers of this blog, lasts about forty minutes. It is followed by twenty minutes of discussion, also videotaped.
The first part of my presentation deals with the Free Exercise Clause, the second part with obscenity and child pornography under the Free Speech Clause, the third part with the Stevens decision itself and the last part with crush video legislation pending in Congress.
I hope you find it both interesting and informative.
The Government Speech Doctrine Comes of Age
The government speech doctrine came of age in a series of cases beginning with Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), where Justice Souter forcefully set out his own views in dissent.
But before addressing Johanns, I think it is worth mentioning that shortly after University of Wisconsin v. Southworth, 529 U.S. 217 (2000), discussed in a prior post, the Court held in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), that a federal statute violated the First Amendment because it prohibited recipients of Legal Services Corporation funds from providing legal representation for efforts to amend or challenge existing welfare laws, even if that legal representation was separately funded. Writing for the Court (including Justice Souter), Justice Kennedy explained and then distinguished Rust:
The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to government speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government “used private speakers to… transmit information pertaining to its own program.”
531 U.S. at 541 (citations omitted). However, according to the Court , not every government subsidy creates a government speech scenario. Where, as in Legal Services Corporation, government subsidized individuals and groups for the purpose of soliciting a diversity of views, then forum analysis is appropriate just as it was in Rosenberger. In these situations, when there is no “programmatic message,” the government may not discriminate on the basis of viewpoint. In the course of its opinion, the Court also emphasized the distorting effects of the funding condition on the adversary system and the legal process. For these reasons, the statute violated the First Amendment.
Johanns v. Livestock Marketing Association
Johanns v. Livestock Marketing Association, handed down in 2005, generated important doctrinal developments in government speech doctrine. Here, the Court, in an opinion by Justice Scalia, ruled that mandatory assessments on beef producers that were used to disseminate the advertisement, “Beef, it’s what’s for dinner,” did not violate the First Amendment because the advertisement constituted government speech. Johanns was very similar factually to an earlier case, United States v. United Foods, 533 U.S. 405 (2001), which had held that a government assessment on mushroom growers for generic advertisements was compelled speech forbidden by the First Amendment. But, unlike in United Foods, in Johanns the government argued that the advertisements were government speech since the Secretary of Agriculture exercised final control over the message. Read the rest of this entry »