Archive for the ‘First Amendment’ Category
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.
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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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:
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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I spoke on August 6, 2014, about the Supreme Court‘s Town of Greece town meeting legislative prayer decision at the National Conference of Jewish Lawyers. In my remarks I situated Town of Greece in Establishment Clause jurisprudence in addition to commenting on it.
What follows is the outline of my remarks. I hope you find them interesting.
You might also want to check out my related YouTube videos (search “sheldon nahmod”) as well as earlier posts (search “religion”).
The text of the first part of the First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; [speech, press, etc.]
Two purposes of the Establishment Clause
Purposes of the Establishment Clause: (a) protecting government from religion because religion is ultimately based on faith and what is sometimes called passion, while self-government is supposed to be based on reason and practical judgment; the European and probably worldwide historical experience (and the theory) is that faith and passion distort and perhaps corrupt government (recall the divine right of kings) and are a danger to it; (b) a less-often remarked on purpose of the Establishment Clause is to protect religion from government (this is a major purpose of the Free Exercise Clause as well); if one religion captures government, other religions are in danger; more subtly, as especially in connection with government financial support of religion, religious bodies sometimes find themselves having to comply with government conditions that may be inconsistent with their religious beliefs (behavior modification or bribery).
Two very different approaches to the Establishment Clause
Jefferson’s wall of separation metaphor as set out his letter in 1802 to the Danbury Baptist Assn; Madison, the draftsman of the Bill of Rights, agreed—see his Memorial and Remonstrance and Jefferson’s and Madison’s joint support of the Virginia bill mandating religious freedom; this is the Enlightenment model that emphasizes the private-public distinction in connection with religion; alternatively, and more prominently these days, the morality-based accommodation model (supported by George Washington and John Adams); but all agreed with the principle of neutrality which meant at the very least that government may not prefer any particular religion over others. Core principle: government may not create a church or directly fund a church. Overall question: the proper role of religion in the public square.
Three controversial areas in Establishment Clause jurisprudence
Three historically controversial areas in Supreme Court Establishment Clause jurisprudence: prayer (especially school prayer, but including legislative prayer), school funding (aid to students in religious schools, aid directly to religious schools and school vouchers) and government religious displays (creches, menorahs, Ten Commandments and crosses); it is fair to say that in the last two decades especially, the move in the Supreme Court has been to greater governmental accommodation of religion in the areas of school funding and government religious displays; separation has for the most part held firm in connection with school prayer but, in light of Town of Greece, the move to governmental accommodation is clear in other public prayer situations involving adults; these are, doctrinally at least, the results of changes in the prevailing Establishment Clause tests, which I will briefly discuss next. Of course, personnel changes on the Supreme Court are perhaps a more direct cause as, for example, Justice O’Connor’s replacement by Justice Alito.
The Lemon, endorsement and coercion Establishment Clause tests
The heretofore dominant Lemon test: purpose must be secular, the effect must not be to advance or inhibit religion and entanglement; see Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools; this is a very government-restrictive test as is obvious particularly in school prayer cases, but also quite restrictive in aid to religious school cases and religious display cases; Lemon has been extensively criticized by various justices in the the so-called conservative majority on the Court and, indeed, was not used by anyone in Town of Greece; other tests have been offered in its place
Justice O’Connor’s endorsement test: a less government-restrictive test initially developed in connection with religious displays, e.g. Lynch v. Donnelly (1985), which asks whether the challenged government conduct would be seen by a reasonable objective observer familiar with history and tradition as an endorsement of religion
Justice Kennedy’s coercion test in Lee v. Weisman (1992), the graduation prayer case in which, for the Court, he emphasized psychological coercion as against the legal coercion of compulsory school attendance: a very permissive government test, particularly outside of the context of school prayer, as demonstrated by Town of Greece.
Town of Greece in the Second Circuit
The Town of Greece, an overwhelmingly Christian town in New York State, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. These clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and typically, everyone, including members of the public (mostly adult) in attendance on various business matters, was asked to stand, bow his/her head or join in the prayer, which most, but not all, did. At the same time, the town, after protests from non-Christians, including several Jews, invited a few others, including non-Christian clergy, to lead the opening prayer, which was done for a very short time, say a few months, after which the town reverted to its past practice, in part because the town’s places of worship are all Christian and also because it was easier.
Does this pattern violate the Establishment Clause?
“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”
Note that the Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. Significantly, the Second Circuit did not use Justice Kennedy’s coercion test.
However, it discussed and distinguished the Supreme Court’s decision in Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer had previously been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress at the beginning of the United States government, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted in Marsh that the Judeo-Christian content of the prayers involved did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion. It was on this basis that the Second Circuit distinguished Marsh.
Town of Greece in the Supreme Court
The Supreme Court, not surprisingly, granted certiorari and gave the answer to the Establishment Clause question that most of us, including me, expected and predicted. The 5-4 decision reversing the Second Circuit was handed down on May 5, 2014.
Justice Kennedy wrote for the Court, and emphasized Marsh and its reliance on tradition. He rejected the argument that Marsh was distinguishable because overtly Christian prayers were not involved there. In his view, this was insignificant and irrelevant to the Court’s reasoning in Marsh. He disavowed dicta to the contrary in later cases about this limiting interpretation of Marsh. Further, not only did the prayers involved here fall within the tradition in Marsh but it was important that the Town maintained a policy of non-discrimination.
As an alternative ground joined only by Chief Justice Roberts and Justice Alito, there was no coercion here because adults were voluntarily present at the Town meeting, in contrast to Lee v. Weisman with its graduating middle-school children who were psychologically coerced into attending. Moreover, offense was not enough to constitute the requisite coercion.
Justices Scalia and Thomas did not join the coercion part (they had dissented in Lee), but otherwise agreed with Justice Kennedy’s reasoning about Marsh and tradition. Both of them agreed that there was no coercion here but argued, disagreeing with Justice Kennedy, that only legal coercion mattered. Justice Thomas alone maintained that the Establishment Clause did not apply to the states through incorporation via the Fourteenth Amendment.
Justice Kagan wrote an impassioned dissent, arguing that Marsh was distinguishable because here, unlike in Marsh, the prayer was explicitly Christian. Moreover, in Marsh, the prayer was primarily for legislators, whereas here, the prayer was not only for local legislators but also involved citizens present to conduct business. She made a perceptive argument when she used a functional approach and maintained that town meetings perform not only legislative functions but also adjudicative and executive functions as well (her hypos) in which citizens participate. Finally, she chastised the majority’s obvious blindness to other religions and their adherents and its insensitivity to what citizenship means.
1. No Justice relied on the Lemon test, including the dissenters; in the public prayer setting (probably school prayer as well after Lee) it is effectively dead; and this also seems to be the case for its use in aid to education and religious display cases.
2. Justice O’Connor’s endorsement test is, after Town of Greece, probably inapplicable to public prayer cases as well, although it may retain its currency in the religious display cases.
3. Town of Greece continues the Court’s determined march in the direction of an increasing governmental role in accommodating religion in the public square
4. Consider the fact that all of the justices in the majority are Catholics (and therefore Christians), while three of the four dissenters are Jewish (Justice Sotomayor is Catholic). What does this suggest, if anything, about blindness to minority religions in the Establishment Clause setting? What does it suggest, if anything, about the effect of a justice’s religion on his or her view of the Establishment Clause, at least for this Court?
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Lane v. Franks: New Public Employee Free Speech Decision
The Supreme Court, on June 19, 2014, handed down an important public employee free speech decision in Lane v. Franks (PDF), No. 13-483. The Court unanimously held, in an opinion by Justice Sotomayor, that a public employee who testifies truthfully at trial, pursuant to a subpoena, is protected by the First Amendment from employer discipline, at least where the testimony is not pursuant to his/her duties as an employee. However, the Court also ruled that the employee’s superior, who fired him, was not liable in damages because of qualified immunity.
Previous Posts on Lane v. Franks
I previously blogged about this case when certiorari was granted, see post of January 20, 2014; when (full disclosure here) I co-authored a Law Professors’ Amicus Brief in Support of Petitioner, see post of March 13, 2014; and when I did a short video on the case, see post of April 25, 2014. Those posts set out the background and facts.
The Opinion: The First Amendment Merits
Justice Sotomayor initially set out the basics of public employee free speech jurisprudence stemming from Pickering v. Bd. of Education and Garcetti v. Ceballos. She observed that where a public employee is disciplined for his or her speech and asserts First Amendment protection, the first question was whether the speech engaged in–here, Lane’s testimony at two federal criminal trials– was pursuant to the employee’s job duties. In this case, it was clear– even undisputed–that Lane’s testimony, pursuant to subpoena, at trial, was not part of his ordinary job duties. Moreover, it was every citizen’s duty under subpoena to testify truthfully at trial. The Court emphatically rejected the misguided position of the Eleventh Circuit in this case that Lane’s speech was not that of a citizen but that of an employee because he testified about information arising out of his employment.
The second question–whether the speech dealt with a matter of public concern–was also easy to answer: Lane’s testimony dealt with the malfeasance of a state legislator in connection with the misuse of public funds. According to the Court, this was a classic case of whistle-blowing about public corruption. This was surely a matter of public concern. Consequently, the First Amendment was implicated here.
Finally, as to the Pickering balancing test, the Court observed that the various defendants never seriously argued that the balance should tip in favor of allowing Lane to be disciplined. There was no countervailing governmental interest whatever that would justify his firing.
Consequently, the First Amendment protected Lane from discipline for his truthful testimony.
The Opinion: Qualified Immunity
The defendant Franks was sued for damages under 42 U.S.C. section 1983, which provides a damages remedy against state and local government officials who violate a person’s constitutional rights. See generally Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES: THE LAW OF SECTION 1983 (4th ed. 2013). However, qualified immunity is a defense to damages liability where the defendant can show that the relevant constitutional law was not clearly settled at the time of the unconstitutional conduct, thereby not providing fair notice to the defendant that his or her conduct was unconstitutional.
Here, the Court agreed with defendant Franks’ argument that the relevant First Amendment law was not clearly settled in the Eleventh Circuit in January 2009 because, at best, there were Eleventh Circuit opinions going in different directions as to the applicability of the First Amendment to a public employee’s subpoenaed testimony at trial. And Garcetti itself did not address that question.
1. Lane is a major decision because of its unanimous ruling on the First Amendment issue. It is also significant because it’s the first Supreme Court decision to consider the implications of Garcetti, handed down in 2006. The Court soundly treated Lane’s testimony as citizen speech, even though it arose out of Lane’s employment.
2. The opinion expressly did not address the question whether the First Amendment should protect the truthful testimony of a public employee where that testimony is part of the employee’s job responsibilities. Nevertheless, I would argue that Garcetti should not preclude First Amendment application even here because the obligation of a public employee to testify truthfully arises from his or her status as a citizen, and this should trump the fact that the subpoenaed testimony is part of the employee’s job duties. This is where I would part company with the concurring opinion of Justice Thomas, joined by Justices Scalia and Alito.
On the other hand, if the employee testifies falsely or misleadingly in such a situation, employer discipline should not be barred by the First Amendment.
3. Finally, the defendant in this case, Franks, was protected by qualified immunity because the relevant First Amendment law was not clearly settled at the time he terminated Lane, namely, January 2009. The Court therefore rejected Lane’s contention that, regardless of the Eleventh Circuit’s confusion on the matter, Garcetti itself established clearly settled law. However, since the Court unanimously read its opinion in Garcetti in favor of Lane’s position, I wonder why that did not, in 2006, establish clearly settled First Amendment law for the nation regardless of the Eleventh Circuit’s own precedents. One possible answer is that the Court still did not consider this fair notice to Franks because the Garcetti itself did not address the precise issue in Lane. Still that seems like an overly narrow application of the clearly settled law requirement.
Nevertheless, Lane declares that as of June 19, 2014, the relevant First Amendment law regarding the truthful testimony of a public employee on a matter of public concern, which is not part of his or her job duties, is indeed protected from governmental discipline by the First Amendment. All public employers are now on notice of this clearly established law in the future.
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Wood v. Moss: New Supreme Court First Amendment Qualified Immunity Decision Involving Presidential Security
On May 27, 2014, the Supreme Court handed down Wood v. Moss (PDF), 572 U.S. — (2014)(No. 13-115), dealing with the qualified immunity of Secret Service agents sued by protesters for damages under the First Amendment in connection with protecting the President.
The Protestors’ Claim
Wood dealt with a Bivens First Amendment damages action against Secret Service agents who allegedly engaged in impermissible viewpoint discrimination when they moved the plaintiff protesters of President Bush farther away from him when he was dining. Specifically, two groups of demonstrators, protesters and supporters, were initially situated across from one another during the President’s motorcade, but the President made a quick decision to have dinner at the outdoor patio of a restaurant. The protesters then moved to an area in front of the restaurant but were soon thereafter moved by the agents about two blocks away and outside of weapons range of the President. However, the supporters remained in their original location near a building that kept them outside of weapons range of the President. When the President left the restaurant, he passed his supporters but the protesters were beyond his hearing and sight.
The Court’s Unanimous Qualified Immunity Decision
Writing for a unanimous Court that reversed the Ninth Circuit and ruled that the agents were protected by qualified immunity, Justice Ginsburg at the outset emphasized the gravity of the specter of Presidential assassination and the need for the agents to make quick decisions. Assuming arguendo that the plaintiffs stated a Bivens First Amendment claim, she then went on to determine that the agents did not violate clearly settled First Amendment law on October 14, 2004, when the event occurred. In other words, “it [should] not have been clear to the agents that the security perimeter they established violated the First Amendment.”
No Clearly Established First Amendment Duty Under the Circumstances
According to Justice Ginsburg, while it was clearly established at a general level that governmental viewpoint discrimination violated the First Amendment, it was not clearly established in a situation involving Presidential security that the agents were under a First Amendment obligation to make sure that groups with opposing viewpoints were at comparable locations at all times. Moreover, this would not have made sense under the circumstances since the protesters’ location in front of the restaurant put the President within weapons range and gave them a “largely unobstructed view” while the supporters were never within weapons range of the President. Furthermore, there was no First Amendment obligation to move the supporters away from the President’s motorcade after he left the restaurant.
Finally, the plaintiffs’ allegations of viewpoint discrimination as the agents’ sole motivation were undermined by a showing that the protesters were a security risk because of their location. Thus, the officers had valid security reasons to move the plaintiffs.
As noted, Wood was a unanimous decision whose reasoning and result clearly reflected the Court’s overriding concern with avoiding the second-guessing of Secret Service agents when engaged in protecting the President of the United States.
It is also important to note that the protesters of the President and his supporters were treated the same way initially. It was only when the President unexpectedly changed his plans that the agents had to act quickly and, above all else, make sure the President was out of weapons range.
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I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.
I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.
“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”
I think you will find it interesting reading.
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Certiorari Granted in Lane v. Franks
The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case. The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).
In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.
Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.
1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for damages in such an action?
If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.
Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.
Lane will be argued and decided this Term.
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