Article: Justice Souter on Government Speech
Since August 27, 2010, I have published nine posts dealing with the First Amendment topic of government speech and now-retired Justice David Souter‘s engagement with the topic.
The government speech doctrine began in the Supreme Court with Rust v. Sullivan, 500 U.S. 173 (1991)–see post of September 7, 2010–handed down in Justice Souter’s first term, and continued through Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)–see post of December 30, 2010–handed down in Justice Souter’s last term.
My posts, which have separately addressed all of the Supreme Court’s government speech cases, were based on drafts of a then-forthcoming Brigham Young University Law Review article.
The article, now published, is entitled Justice Souter on Government Speech and its cite is 2010 Brigham Young Univ. L. Rev. 2097.
It is now available for downloading through the link below. I hope you find it informative.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795624.
New Supreme Court Section 1983, Habeas and Heck Decision: Skinner v. Switzer
Introduction
I blogged on June 24, 2010, about the Supreme Court’s grant of certiorari in Skinner v. Switzer (PDF), No. 09-9000, a case from the Fifth Circuit addressing the relationship between section 1983, habeas corpus and Heck v. Humphrey, 512 U.S. 477 (1994). That post should be consulted for background by those unfamiliar with this case.
On March 7, 2011, the Supreme Court, in an opinion by Justice Ginsburg, handed down its decision in Skinner, with Justice Thomas, joined by Justices Kennedy and Alito, dissenting.
The Opinion
This was the question in Skinner:
“May a convicted state prisoner seeking DNA testing of crime-scene evidence assert that claim in a civil rights action under [section 1983], or is such a claim cognizable in federal court only when asserted in a petition for a writ of habeas corpus?”
The Court’s answer in Skinner is that section 1983 may be used. Read the rest of this entry »
Certiorari Granted in Camreta v. Greene: Appellate Jurisdiction in Section 1983 Qualifed Immunity Cases
The Problem
Suppose a section 1983 plaintiff sues individual police officer defendants and a local government, alleging that they violated his constitutional rights and are liable in damages to him. The individual defendants move for summary judgment based on qualified immunity, as they are entitled to do under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny. According to the Supreme Court in Pearson v. Callahan, 129 S. Ct. 808 (2009), modifying the “order of battle” approach of Saucier v. Katz, 533 U.S. 194 (2001)–see post of 9-17-09— the qualified immunity inquiry may, in the discretion of the district court, include both (1) whether the defendants violated the plaintiff’s constitutional rights (that is, whether the plaintiff asserted a constitutional violation) and (2) if they did, whether the defendants nevertheless are not liable because they did not violate clearly settled law as of the time of the challenged conduct.
Suppose now that the district court rules that the individual defendants did violate the plaintiff’s constitutional rights but that they did not violate clearly settled law and are thus entitled to qualified immunity. May the defendants interlocutorily appeal the district court’s determination that the defendants did in fact violate the plaintiff’s constitutional rights where the plaintiff does not appeal the grant to the defendants of qualified immunity?
Consider that the defendants prevailed at the district court level; that technically speaking the ruling that the individual defendants violated the plaintiff’s constitutional rights is really not part of the district court’s judgment; and that the dispute between the plaintiff and the individual defendants may now be moot. The plaintiff would prefer a determination that the Circuit Court of Appeals does not have jurisdiction so that the plaintiff’s case against the local government can go forward without any further delay (recall that local governments are not protected by qualified immunity. Owen v. City of Independence, 445 U.S. 622 (1980)).
For the same reason, though, the local government defendant has an interest in a decision by the Court of Appeals on the constitutional merits as soon as possible. Moreover, an argument can be made that the district court’s statement of the applicable constitutional law affects not only the defendants but all other police officers similarly situated in the jurisdiction who would perhaps be governed by the district court’s announced constitutional standard unless and until it is overturned by a Court of Appeals. Read the rest of this entry »
New Supreme Court Section 1983 Qualified Immunity Decision: Ortiz v. Jordan
Qualified Immunity Fundamentals
Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct. To put it somewhat differently: a government official is not liable for damages for violating a person’s constitutional rights where a reasonable official, confronting the circumstances as they appeared to the official at the time of the challenged conduct and in light of then-established law, could have believed his or her conduct was constitutional. If the challenged conduct violated clearly settled law as of the time of the conduct, the official acted unreasonably and loses on qualified immunity. The qualified immunity standard is thus objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987). See generally chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).
However, qualified immunity amounts to even more than this. Over the years it has increasingly begun to function more like absolute immunity: qualified immunity provides significant protection not only from damages liability but from the costs of defending as well. Thus, qualified immunity summary judgment motions should ordinarily be decided before any significant discovery is undertaken. Harlow v. Fitzgerald. In addition, denials of qualified immunity summary judgment motions are immediately appealable on issues of law, although not for evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).
The Decision in Ortiz v. Jordan
Suppose that defendants in a section 1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50 (b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place.
May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz v. Jordan (PDF), No. 09-737 (1-25-11), resolved a conflict in the circuits and unanimously answered NO. Read the rest of this entry »
Government Speech and Justice Souter (9): A Short Coda
Justice Souter could not have imagined in his first year on the Court that Rust v. Sullivan, 500 U.S. 173 (1991), which he joined–see post of September 7, 2010–would be transformed into the paradigmatic government speech case. He also could not have foreseen where the government speech doctrine would lead.
As his views on government speech evolved, they became increasingly thoughtful, even if not daring and path-breaking like the dissents of Justices Holmes and Brandeis in the First Amendment‘s “clear and present danger” years.
Justice Souter became increasingly concerned with the adverse effects of expanding the scope of the government speech doctrine and the consequent immunization from First Amendment scrutiny of government-directed speech.
His attempt–see post of November 10, 2010–to ground the government speech doctrine on the marketplace of ideas rationale was noteworthy. In addition, his emphasis on political accountability and the related need to know that government is both speaking and communicating a particular message was insightful.
Finally, he warned in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), of the need to reconcile the government speech doctrine with the Establishment Clause in order to ensure that the former did not swallow up the latter. See post of December 30, 2010.
For his contributions to, and wise cautionary observations about, the government speech doctrine, now-retired Justice David Souter deserves our appreciation.
Government Speech and Justice Souter (8): Pleasant Grove City v. Summum
Pleasant Grove City v. Summum: Justice Souter’s Last Government Speech Opinion
In Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), the Court, in an opinion by Justice Alito, held that a city’s rejection of a privately donated monument offered by the Summum sect for permanent display in a public park did not violate the First Amendment despite the city’s acceptance decades earlier of a privately donated Ten Commandments monument in the same public park. The city’s rejection of the Summum monument was not impermissible viewpoint discrimination because its previous acceptance of the Ten Commandments monument was government speech.
The Government Speech Function of Monuments
The Court looked to tradition and history to determine that the Ten Commandments monument was indeed government speech:
“Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” 129 S. Ct. at 1132-33.
Then, contending that a reasonable observer would know that a monument on government land was necessarily representative of the government’s message, the Court analogized public property owners to other property owners:
“It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely–and reasonably–interpret them as conveying some message on the property owner’s behalf.”
Government Speech Need Not Communicate a Particular Message
Finally, the Court observed that a monument could be government speech even if it did not communicate a particular message. It said:
“Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.
What, for example, is ‘the message’ of the Greco-Roman mosaic of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of John Lennon? Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may ‘imagine’ a world without religion, countries, possessions, greed, or hunger. Or, to take another example, what is ‘the message’ of the ‘large bronze statue displaying the word “peace” in many world languages’ that is displayed in Fayetteville, Arkansas?”
129 S.Ct. at 1135 (citations omitted). Read the rest of this entry »
New Supreme Court Section 1983 Municipal Liability Decision: Los Angeles County v. Humphries
Introduction
(It has been a while since I posted on section 1983; what follows is my discussion of a Supreme Court section 1983 decision just handed down on November 30, 2010).
It is section 1983 black letter law after Monell v. Department of Social Services, 436 U.S. 658 (1978), that a local government can only be liable in damages when its official policy or custom was responsible for the plaintiff’s constitutional deprivation. Respondeat superior liability is not a proper basis for local government liability under section 1983.
But suppose that a plaintiff seeks prospective (declaratory and/or injunctive) relief against a local government under section 1983: is the official policy or custom requirement still in play, or is it applicable only to section 1983 damages actions? Further, if the official policy or custom requirement applies to prospective relief actions against local governments as well, does it matter whether the local government is sued for prospective relief in its own name or in the name of an official?
Los Angeles County v. Humphries
In Los Angeles County v. Humphries, 131 S. Ct. — (2010), the Supreme Court held that the official policy or custom requirement does indeed apply to prospective relief actions brought against local governments sued in their own names.
In this case, the plaintiffs, accused but later exonerated of child abuse, sued the attorney general of California, the Los Angeles County sheriff, two detectives in the sheriff’s department and Los Angeles County, and sought damages and prospective relief against all of them. They sought this relief because they were unable to have their names removed from a state-mandated Child Abuse Central Index even after they were exonerated. Ultimately, the Ninth Circuit held that the state was required by procedural due process to provide those included on the Index with notice and some sort of hearing; that the plaintiffs were entitled to declaratory relief against all of the defendants; and that they were prevailing parties entitled to attorney’s fees under 42 U.S.C. section 1988 against all of the defendants, including Los Angeles County. Read the rest of this entry »
Government Speech and Justice Souter (7): Garcetti v. Ceballos
Justice Souter’s Penultimate Government Speech Case: Garcetti v. Ceballos
In Garcetti v. Ceballos, 547 U.S. 410 (2006), an exceptionally important public employee free speech case discussed at greater length in a prior post, the Court held that a deputy district attorney’s First Amendment rights were not violated when he was allegedly retaliated against by his supervisors for writing a memo to them complaining of problems in the prosecution of a criminal case. The Court declared that public employee speech engaged in pursuant to that employee’s official duties was not protected from employer discipline by the First Amendment.
Writing for the Court, Justice Kennedy indicated that there was a government speech element present whenever public employees spoke pursuant to their official duties:
The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.
547 U.S. at 421-22. Read the rest of this entry »
Supreme Court Review: 2009 Term (video)
Scotus Review: The 2009 Term
On October 29, 2010, my colleague, Professor Christopher Schmidt, and I presented a review of the Supreme Court‘s important decisions from its 2009 Term (through June, 2010).
Our presentations took place at Chicago-Kent and were sponsored by the Kent chapters of the American Constitution Society and the Federalist Society. Kent’s Institute for Law and the Humanities, of which I am a co-director, also sponsored.
The two presentations, 30 minutes each, were followed by 15 minutes of questions and discussion.
Cases Covered
Professor Schmidt spoke first about U.S. v. Comstock (Necessary and Proper Clause); McDonald v. City of Chicago (Second Amendment and incorporation); and Citizens United v. FEC (corporate campaign expenditures and the First Amendment).
I spoke next about the following First Amendment free speech and religion cases: Holder v. Humanitarian Law Project (speech and material support for terrorists); U.S. v. Stevens (animal cruelty videos, the subject of my more extensive video presentation at the Chicago Bar Association, as noted in a previous post); Christian Legal Society v. Martinez (college religious student group recognition and forum analysis); and Salazar v. Buono (cross as war memorial and its sale by government).
These presentations are accessible through the following link:
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Animal Cruelty, Crush Videos and U.S. v. Stevens (Video)
I spoke about animal cruelty, crush videos and the Supreme Court‘s First Amendment decision in U.S. v. Stevens, 130 S. Ct. 1577 (2010), on October 21, 2010, at the Chicago Bar Association. I was asked to do so by the CBA’s Animal Law Committee.
My videotaped presentation, which I am pleased to make available to readers of this blog, lasts about forty minutes. It is followed by twenty minutes of discussion, also videotaped.
The first part of my presentation deals with the Free Exercise Clause, the second part with obscenity and child pornography under the Free Speech Clause, the third part with the Stevens decision itself and the last part with crush video legislation pending in Congress.
I hope you find it both interesting and informative.
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Nahmod Law 