Archive for the ‘Constitutional Law’ Category
Remarks on the Establishment Clause and Town of Greece
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?
The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It declared (emphasis added):
“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.
Observations
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 Supreme Court Public Employee Free Speech Decision
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.
Justice Thomas concurred, joined by Justices Scalia and Alito, emphasizing that the Court’s ruling applied only to testimony that was not pursuant to a public employee’s official duties.
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.
Comments
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.
Comments
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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Plumhoff v. Rickard: New Supreme Court Section 1983 Fourth Amendment/Qualified Immunity Decision
Deadly Force (Firing Shots) and High Speed Police Chases
On May 27, 2014, the Supreme Court handed down Plumhoff v. Rickard (PDF), 572 U.S. — (2014) (No. 12-1117), a new Fourth Amendment/qualified immunity decision involving the use of deadly force–firing shots–and high speech chases.
The Plaintiff’s Claim in Plumhoff
Plumhoff involved a high speed chase—it began when an officer pulled over a driver because his car had only one operating headlight–in which police officers shot the driver and a passenger, both of whom died as a result of the shots and the consequent crash. The driver, on whose behalf his daughter filed a § 1983 claim alleging excessive force, made several arguments. First, the police officers who fired at the driver’s car in an attempt to terminate the chase violated the Fourth Amendment. Second, the police officers who fired a total of fifteen shots at the car violated the Fourth Amendment because this was excessive. Finally, the defendants violated clearly settled Fourth Amendment law.
The Court’s Opinion on the Fourth Amendment Merits
In an opinion by Justice Alito, the Supreme Court reversed the Sixth Circuit that had ruled for the daughter. The Court found that the police officers did not violate the Fourth Amendment just because they used deadly force to terminate the chase. Relying on Scott v. Harris, the Court pointed out that here, as in Scott, the officers did not violate the Fourth Amendment in terminating a high speed chase posing a grave public safety risk through the use deadly force. The chase lasted over five minutes with speeds exceeding 100 miles per hour; the driver’s outrageously reckless driving put many other vehicles at risk; and even though the driver’s car had come to a temporary halt, that did not end the chase because he continued pushing down on the accelerator in an attempt to escape. At that point an officer fired three shots but the driver continued to drive away. This was followed by an additional twelve shots, with the driver never abandoning his attempt to flee until the crash. The Court emphasized that the officers did not need to stop shooting until it was clear to them that the threat to public safety had ended.
The Passenger
As to the presence of a passenger in the front seat of the car, this was largely irrelevant to the Fourth Amendment issue posed by this case: it was not the passenger’s Fourth Amendment rights that were implicated, it was those of the driver. “[The passenger’s] presence in the car cannot enhance [the driver’s] Fourth Amendment rights.” In this connection, the Court observed in passing that there was disagreement in the circuits as to whether a passenger in this situation even had a Fourth Amendment claim. In addition, if such a passenger pursued a substantive due process claim, he or she would have to prove that the officer had a purpose to cause harm unrelated to the legitimate object of arrest, per County of Sacramento v. Lewis.
Qualified Immunity
Finally, the Court ruled that in any event, the officers did not violate clearly settled Fourth Amendment law as of July 18, 2004, the date of the events in question. The Court’s decision in Brosseau v. Haugen, 543 U.S. 194 (2004), had ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired at a fleeing vehicle to prevent harm to officers she believed were nearby and to protect other citizens. The events in Brosseau occurred in February 1999 and there were no intervening decisions that constituted controlling or persuasive authority that changed this qualified immunity determination.
Justice Ginsburg joined the Court’s opinion as to the judgment and to three parts of the opinion, while Justice Breyer joined the Court’s opinion except as to one part.
Comments
Plumhoff was not a surprising decision. It followed from Scott v. Harris, but expanded that decision to expressly include shooting a fleeing driver who poses a grave risk to officers or public safety. In other words, there is no Fourth Amendment obligation on the part of police officers in these situations to refrain from firing shots, at least while the chase and the danger to others are ongoing.
Plumhoff also emphasized the need for judges doing Fourth Amendment analysis to put themselves in the place of police officers making split second decisions.
It is further worth noting the Court’s insistence that the clearly settled law inquiry not be conducted at too high a level of generality but rather at a fairly fact specific level in Fourth Amendment excessive force cases especially.
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Law Professors’ Amicus Brief in Lane v. Franks
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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Know Your Constitution (6): What Is Procedural Due Process?
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 and considered free speech and hate speech.
This and subsequent posts will 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
This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.
Life, Liberty and Property Interests
Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.
The meaning of a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.
For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.
Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)
What Kind of Hearing and When?
Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.
Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.
The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.
Next: Substantive Due Process
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My New Video on Section 1983 Basics
In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).
This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.
I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.
The video is here: http://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer/Default.aspx?id=16b8dbcf-b6b3-4ede-bc77-c0fa13de4840
I hope you will find it of interest and useful.
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Cert Granted in New Public Employee Free Speech Case: Lane v. Franks
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.
Questions Presented
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?
Comments
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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Know Your Constitution (5): Free Speech and Hate Speech
This is the fifth in a series of posts, intended for a general audience, discussing the Constitution. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.
Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”.
I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.
What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”
One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.
What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.
But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power. Words have costs.
One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.
What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.
What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.
However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.
So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?
The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?
Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.
IMPORTANT UPDATE: I lectured on this topic on November 30, 2016. The audio of my lecture is here: https://nahmodlaw.com/2016/12/14/my-lecture-on-the-supreme-court-free-speech-and-hate-speech-audio/
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Certiorari Granted in Plumhoff v. Rickard: Excessive Force, High-Speed Police Pursuits and Scott v. Harris
Plumhoff v. Rickard: Certiorari Granted
The Supreme Court has granted certiorari in Plumhoff v. Rickard, No. 12-1117 (2014), an unpublished decision in Estate of Allen v. City of West Memphis, 509 Fed. App’x 388 (6th Cir. 2012).
Here are the questions presented:
The Background: Scott v. Harris
In 2007, the Supreme Court held in Scott v. Harris that “a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind” even though the officer’s actions “place [the] fleeing motorist at risk of serious injury or death.” In the case before it, the Court reversed the Eleventh Circuit which had affirmed the district court’s denial of officer’s qualifed immunity summary judgment motion. A videotape of the chase made abundantly clear, said the Court, that no jury could find that what the officer did— ramming the plaintiff motorist’s car and thereby seizing it — was objectively unreasonable.
In the course of its opinion the Supreme Court explained the relationship among Tennessee v. Garner, 471 U.S. 1 (1985)(deadly force), Graham v. Connor, 490 U.S. 386 (1989)(excessive force in general) and the Fourth Amendment’s reasonableness requirement. It noted that “Graham did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test in a particular type of situation.”
Justices Ginsburg and Breyer concurred, while Justice Stevens dissented, arguing that the Court had usurped the jury’s function.
Comments
1. The Supreme Court will almost certainly reverse the Sixth Circuit and declare that the latter’s approach in this and similar cases is fundamentally inconsistent with Scott.
2. Note that Scott must be sharply distinguished from those high speed police pursuit cases in which there is no seizure, with the result that the substantive due process “purpose to do harm” standard governs, and not Fourth Amendment reasonableness standards. County of Sacramento v. Lewis, 523 U.S. 833 (1998).
More on the Fourth Amendment and excessive force can be found at sections 3:17-3:23 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013)(West Group).
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