Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia
This is the third in a series of posts on now-retired Justice Souter’s positions on government speech. The first post was an introduction and the second addressed Rust v. Sullivan, 500 U.S. 173 (1991).
Rosenberger v. Rectors of the University of Virginia
Fours years after Rust, the Court held in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995), that a public university’s refusal to fund a student magazine with a Christian theme, while at the same time funding other student organization publications, was a violation of the Free Speech Clause of the First Amendment. The Court found that the Student Activity Fund from which the Christian magazine was applying for funds was a “metaphysical” limited public forum that was intended to enable private speech, and as such could not discriminate according to viewpoint. Though the university argued that it was discriminating according to content (permitted in a limited public forum), the Court rejected this argument and effectively held that religious belief was a viewpoint.
Rosenberger is often cited for its broad language describing the government speech doctrine implicit in Rust. Justice Kennedy, writing for the Court, said: “We recognized [in Rust] that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” 515 U.S. at 833 (citations omitted). However, Rosenberger itself was not a government speech case: the university had expressly stated that its speech was not at issue. In fact, one of the requirements imposed on student organizations for receiving funding was signing a disclaimer that distanced the university from the speech of the recipients. Read the rest of this entry »
Government Speech and Justice Souter (2): Rust v. Sullivan
Rust v. Sullivan
Oral argument in Rust v. Sullivan, 500 U.S. 173 (1991), was held on October 30, 1990, which made Rust one of the first cases that Justice Souter heard. In a 5-4 vote that almost certainly would have gone the other way had Justice Brennan still been on the Court, the Court, in an opinion by Chief Justice Rehnquist, upheld federal regulations that prohibited doctors from engaging in abortion counseling as part of a federally funded Title X project.
The ruling rested on the distinction between a subsidy and a restriction. The Court began with the premise that government may choose to fund one activity to the exclusion of another, even if the latter involves the exercise of a fundamental right. It then determined that Rust was not an “unconstitutional conditions” case, because Title X focused on the project rather than the grantee: Title X did not restrict the recipients of funding absolutely from engaging in pro-abortion activities; it merely mandated that Title X projects not include such activities. Therefore, if a doctor wished to go beyond the scope of a Title X program, he or she remained free to do so. Title X merely required that the funds for Title X projects be segregated from funds used to support activities beyond the scope allowed by Title X.
The Dissenters
Justice Blackmun dissented, joined by Justice Marshall and by Justice Stevens in part and by Justice O’Connor in part. “Until today, the Court has never upheld viewpoint- based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.” For three of the dissenters (not including Justice O’Connor), what distinguished Rust from Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), which dealt with funding coupled with conditions, was that Title X was in part aimed at the suppression of “dangerous ideas.” Because the counseling and referral provisions in Title X were both content and viewpoint based, they violated the First Amendment. The three dissenters further argued that the majority’s mantra that government is free to fund one activity to the exclusion of another was both overly simplistic and incorrect. Read the rest of this entry »
Government Speech and Justice Souter (1): Introduction
What Is Government Speech?
Simply put, when government itself speaks, rather than regulating the speech of private persons, its speech is immunized from any meaningful First Amendment scrutiny, including the prohibition against engaging in viewpoint discrimination.
Under the doctrine, government becomes a “market participant” in the marketplace of ideas rather than a regulator of that marketplace, and its First Amendment immunity is analogous to the dormant Commerce Clause immunity of state and local governments when they are market participants. Hughes v. Alexandria Scrap Corp., 426 U.S.794, 809-10 (1976).
The Government Speech Doctrine and the Tenure of Justice Souter
Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan, 500 U.S. 173 (1991), was handed down in 1991, and the most recent government speech decision, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), was handed down in 2009. Read the rest of this entry »
Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago
Introduction
From a section 1983 perspective, here are some things to look for in the aftermath of the Supreme Court’s recent decision in McDonald v. Chicago, 130 S. Ct. 3020 (2010).
The Second Amendment and Section 1983
McDonald held that the Second Amendment right of a person to possess a gun in his home for self-defense, as announced in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), is also protected against abridgment by state and local governments. That is, the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it to the states and local governments.
Consequently, individuals may use section 1983 to bring Second Amendment damages actions against state and local government officials and against local governments themselves (but not states–see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)) that enact gun control laws.
Practical Hurdles
However, there are some practical hurdles for plaintiffs to consider if section 1983 Second Amendment-based damages actions are contemplated. Read the rest of this entry »
Anti-SLAPP Statutes and Section 1983 (Updated)
Some Questions
What is a SLAPP lawsuit? What is an anti-SLAPP statute? And what, if anything, does section 1983 have to do with anti-SLAPP statutes?
Some Answers
1. A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed to chill the exercise of a defendant’s First Amendment rights in order “to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” John v. Douglas County School Dist., 219 P.3d 1276, 1280 (Nev. 2009).
2. Nevada enacted an anti-SLAPP statute whose primary purpose was to protect the right to petition government for redress of grievances. The Nevada statute, modeled on California’s anti-SLAPP statute, provided that when a plaintiff brings an action “against a person based on a good faith communication in furtherance of the right to petition,” the defendant may file a special motion to dismiss which is treated procedurally as a motion for summary judgment so that the trial court can dismiss only if there are no genuine issues of material fact in dispute. Also, the moving party bears the initial burden of production and persuasion.
3. May state courts apply such an anti-SLAPP statute to a section 1983 claim despite possible preemption under the Supremacy Clause? According to the Nevada Supreme Court in John, the answer is yes. Read the rest of this entry »
All My Posts Through July 7, 2010
Since Nahmodlaw.com began in August 2009, and to this date, July 7, 2010, I have written thirty-four posts (including a video and podcast) on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.
It occurs to me that it would be useful to readers, especially those who have only recently discovered this blog, to have a list of the thirty-four linked posts by category for ease of reference and use.
(It is also possible to use the “search” function to look for particular cases or topics among every one of my posts, including those subsequent to July 7, 2010).
What follows is a list comprising these thirty-four posts divided into the following four categories:
SECTION 1983; CONSTITUTIONAL LAW; FIRST AMENDMENT; EDUCATION
I. SECTION 1983
Section 1983 Supreme Court Decisions–2009: A Video Presentation
A Section 1983 Podcast: Damages and Procedural Defenses
A Section 1983 Primer (1): History, Purposes and Scope
A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape
A Section 1983 Primer (3): Constitutional States of Mind
A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule
Iqbal and Section 1983 Supervisory Liability
My Position on Supervisory Liability after Iqbal
Van De Kamp and the Shift in Prosecutorial Immunity
Haywood v. Drown: Close Call for the Supremacy Clause?
Rethinking Section 1983 Malicious Prosecution
Qualified Immunity “Order of Battle” Modified
Preempting Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.
Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)
Justice Stevens and Section 1983
Purdue v. Kenny A.: A New Supreme Court Attorney’s Fees Decision
Certiorari Granted in Skinner v. Switzer: Section 1983, Habeas and Heck
Certiorari Granted in Skinner v. Switzer: Section 1983, Habeas and Heck
The Case
The Supreme Court has granted certiorari in Skinner v. Switzer, 2010 WL 338018 (Fifth Cir. 2010), cert granted, 130 S. Ct – (May 24, 2010), to deal with the following Question Presented:
May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?
In the words of the petitioner, Skinner involves the following:
For ten years, Henry W. Skinner has sought access to DNA testing that could prove him innocent of the murders that landed him on Death Row. After the Texas courts arbitrarily turned back his diligent attempts to take advantage of state statutes affording such relief, he sued in federal court under 42 U.S.C. § 1983 to vindicate his due process right to “‘fundamental fairness in [the] operation’” of Texas’s scheme. Dist. Atty’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009)(citation omitted). The district court dismissed Mr. Skinner’s § 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed. The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved. Read the rest of this entry »
Purdue v. Kenny A.: A New Supreme Court Attorney’s Fees Decision
Introduction
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that prevailing plaintiffs in § 1983 and other civil rights cases (excluding prisoners who are separately covered by the Prison Litigation Reform Act of 1995) are ordinarily entitled to a reasonable attorney’s fee unless special circumstances render such an award unjust. Typically, and to oversimplify, a reasonable attorney’s fee is based on what is called the “lodestar,” namely, the number of hours worked multiplied by the normal hourly billing rate. This lodestar is then modified to take account of the extent of the plaintiff’s success. See Hensley v. Eckerhart, 461 U.S. 424 (1983), dealing with the extent of success, and Blum v. Stenson, 465 U.S. 886 (1984), addressing prevailing market rates. The Court has declared that enhancements to the lodestar based on the contingency of success are not permissible under other statutory attorney’s fees provisions, City of Burlington v. Dague, 505 U.S. 557 (1992), and therefore are not permissible under § 1988 as well because of similar statutory language.
Question: What about enhancements to the lodestar based on the quality of an attorney’s performance and the results obtained? After Purdue v. Kenny A., 130 S. Ct. — (2010), the short answer is that these are permissible only in truly extraordinary circumstances.
Purdue v. Kenny A.
Purdue v. Kenny A., which involved a consent decree arising out of the plaintiff childrens’ successful class action against Georgia officials alleging structural deficiencies in Georgia’s foster-care system, dealt with the question of whether an attorney’s fees award based on the lodestar can ever be enhanced based solely on the quality of an attorney’s performance and the results obtained. A panel of the Eleventh Circuit had affirmed the district court’s $4.5 million enhancement of the $6 million lodestar figure based on these two factors.
Reversing and remanding, Justice Alito declared for the Court:
“This case presents the question whether the calculation of an attorney’s fee, under federal fee-shifting statutes, based on the “lodestar,” i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand ….” Read the rest of this entry »
Laptops in the Socratic Classroom
The First Signs
I noticed it first about eight years ago. Students began asking me in class to repeat what I had just said. This was happening more and more often, so I began to think about its significance, especially for the kind of discussion, or modified Socratic, method I use to teach constitutional law, First Amendment and various seminars. It was especially disconcerting because I had been teaching enthusiastically and, I hope, rather successfully for over three decades.
Once I thought about it, I realized that many students were actually taking dictation on their laptops, rather than thinking about what was being discussed and then taking notes. I also noticed that it was getting harder and harder to get students to participate in class discussion, or even for me to see their faces hidden behind laptops and focused on their laptop screens. And if these things were happening when I was speaking or trying to engage students in discussion, they were surely happening when other students were speaking, further adversely affecting the classroom experience.
My use of the discussion method to teach analysis and evaluation (“thinking like a lawyer”)–and not simply to convey doctrine–was therefore being undermined by the use of laptops in the classroom!
Remedial Attempts
It made no real difference that I regularly reminded students that good note-taking was not about taking dictation, that it was essential for their education and professional development that they participate in class discussion and that they make eye contact with me and fellow students. It also did not make any real difference that I occasionally instructed students to stop using their laptops and just to listen for a few minutes.
Of course, I spoke with colleagues about this, and most of them–particularly those using the discussion method–reported similar concerns. Some also were worried about their students surfing the Web and emailing during class, but that was, so far as I knew, not a problem for me because I have always walked around the classroom when I teach for the purpose of keeping students (and myself) more engaged. Despite their concerns, none of my colleagues had banned laptops in the classroom, although I had heard that some faculty at other law schools were beginning to do so.
A Decision to Ban Laptops
Finally, I made a decision. Beginning with the 2008-9 academic year, I banned laptops from all my classes, making sure that students registering had sufficient notice. It was not an easy or popular decision to make, and it had a touch of irony because I use a computer for research, writing and communicating with students. And I have always appreciated the typing of exams on computers. But I felt that, as an educator with teaching goals going well beyond the transmission of legal doctrine, I had no real choice in the matter.
A Subsequent Modification
Even though I received excellent feedback from many students about the educational value of my ban, I have since repealed the ban in the required con law course because students complained to the administration that they were being forced to take my class without computers.
Though the administration did not compel me to repeal the ban (I believe academic freedom would prevent that), I nevertheless concluded that there was something to the student complaints.
However, I remain convinced that I am correct pedagogically, and I emphasize this to my students.
A Section 1983 Podcast: Damages and Procedural Defenses
Introduction
My law school, Chicago-Kent, and I just wrapped up our 27th annual conference on section 1983 held on April 15-16, 2010. This conference lasted two days and featured nationally known scholars and attorneys addressing different aspects of section 1983 litigation. Over 160 attorneys from all over the country were in attendance and, thanks to the outstanding speakers and excellent audience questions, the conference was once again a major success.
The speakers were Dean and Professor Erwin Chemerinsky (immunities and Supreme Court review), Professor Karen Blum (local government liability) Professor Rosalie Levinson (substantive due process), Professor Carolyn Shapiro (ethical issues), attorney John Murphey (nuts and bolts of section 1983 litigation), attorney Gerry Birnberg (police misconduct) and I (section 1983 cause of action and damages and procedural defenses).
My Podcast on Damages and Procedural Defenses
In addition to doing The Section 1983 Cause of Action, I did an hour-long presentation on Damages and Procedural Defenses, which covered compensatory damages, punitive damages, and procedural defenses such as statutes of limitation, preclusion, release-dismissal agreements and wrongful death and survival. The entire conference was audio-taped and I am posting my hour-long presentation as a podcast available for listening and downloading. I hope you find it informative.
If you would like to save the file directly, here is the link: Damages and Procedural Defenses: The Basics
The Full Conference Is Available
For those of you who may be interested in purchasing CDs containing the entire two-day conference, please contact Chicago-Kent’s Continuing Legal Education Department at 312-906-5090.
Nahmod Law 