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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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.
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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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:
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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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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 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.
I have blogged previously about how the DeShaney decision has fared in the circuits. The first time was on 8-22-11; the second time was on 6-1-12; the third time was on 5-20-13; and the most recent was on 6-6-13.
Here are two DeShaney-related decisions from the Third and Tenth Circuits, and some comments. I came across these cases when preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Third Circuit: Henry v. City of Erie
The decedents’ estates sued a city’s housing authority and others alleging that they created the danger that led to decedents’ deaths by fire in Section 8 housing through their approval and subsidization of an apartment even though the apartment did not comply with Section 8’s housing standards because it lacked a smoke detector and a fire escape ladder. Henry v. City of Erie, 728 F.3d 275 (3rd Cir. 2013).
Ruling against the estates, the Third Circuit reasoned that they did not plausibly allege that the defendants’ acts were close enough in time and succession to the ultimate harm: there was a lengthy period of time as well as “intervening forces and actions.” Also, the estates did not allege that the defendants caused the fire or increased decedents’ susceptibility to it. Moreover, the defendants were not responsible for installing a smoke detector or fire escape. “[T]here were too many links in the causal chain after defendants acted and before tragedy struck.” The Third Circuit concluded with the observation that it was declining to expand the state-created danger exception.
Comment: Even though the Third Circuit acknowledged the state-created danger exception to DeShaney, it nevertheless ruled on what seem to be proximate cause grounds (with a hint of causation in fact) that the estates did not state section 1983 substantive due process claims. This was a way of avoiding the need to decide whether an affirmative duty existed in the first place.
Tenth Circuit: Estate of B.I.C. v. Gillen
Grandparents sued a social worker for damages under the substantive due process state danger-creation theory for her deliberate indifference to extensive evidence of abuse that allegedly led to the death of their granddaughter at the hands of the natural father’s girlfriend (later convicted of murdering the granddaughter). The granddaughter was living with the natural father and his girlfriend at the time. The Tenth Circuit found that the plaintiffs satisfied the requisite showing of affirmative conduct and private violence here.
For one thing, the plaintiffs showed that the defendant’s “inaction” was based on her animus; that is, there was a deliberate decision to ignore based on a decade-long animosity to the family. For another, there were affirmative acts such as the defendant’s refusal to return police phone calls, her refusal to accept photos showing injury, her lying about being in the father’s home, her telling the plaintiffs that allegations of abuse were not her issue but rather for law enforcement and her claiming that these allegations were unsubstantiated. Moreover, the defendant’s conduct was conscience-shocking. Finally, the defendant was not entitled to qualified immunity because she violated clearly settled law in fall 2007. Estate of B.I.C. v. Gillen, 702 F.3d 1182 (10th Cir. 2012). Judge Matheson concurred, 702 F.3d, at 1192, arguing that the court should not have addressed the question whether the defendant’s alleged intentional inaction constituted “affirmative conduct.”
Thereafter, the Tenth Circuit granted the defendant’s petition for rehearing in part, denied en banc review, ordered the original opinion to be withdrawn and substituted an amended version that affirmed in part, reversed in part and remanded. Estate of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013). In this amended opinion, the Tenth Circuit dealt only with the requirement of conscience shocking conduct and found it here, but remanded to the district court to determine whether other elements on a danger-creation claim, including affirmative conduct, were present.
Comment: The Tenth Circuit was obviously uncomfortable with the broad scope of its prior decision on the state-created danger issue. On rehearing, it therefore addressed only the easier state of mind issue, namely conscience shocking, and had little difficulty finding it here, particularly in light of the defendant’s previously displayed animus. However, in remanding, it wanted to get additional evidence on the affirmative conduct requirement for the state-created danger exception to DeShaney so as to be sure the claim involved more than failure to act.
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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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