First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

Friday, July 31, 2015

Silencing Westboro: Did Governor Jindal Find the Formula?

The Westboro Baptist Church does despicable things at funerals.  At the hundreds of funerals its members have protested, desperate for attention, they hold signs with messages such as "You're Going to Hell" and "Thank God for Dead Soldiers."

These messages are uncouth and unpopular and rightly so.  Yet, it seemed the Church was on a roll when, in 2011, it won an 8-1 decision in the US Supreme Court called Snyder v Phelps. The Court held that the Church's offensive speech was protected and could not give rise to civil liability for a claim called intentional infliction of emotional distress (pretty much what it sounds like) when the father of a slain soldier sued because Church members picketed outside his son's funeral.  The Court explained that, although some of the signs related to the Snyder family, most addressed broader topics that were ostensibly of public concern -- e.g., gays in the military.

In the Snyder case, the Church complied with all local police directives. The picketing took place on a 10 by 25 foot plot of public land, behind a fence, 1,000 feet from the church where the funeral was held.  The funeral procession passed within 200 to 300 feet of the picketers.  The picketing was peaceful and not loud.  Snyder successfully sued for $10.9 million in damages before his judgment was eventually overturned by the Supreme Court.  "Simply put," wrote Chief Justice Roberts, "the church members had a right to be where they were."

This was in part because Maryland, where the picketing in the Snyder case took place, had no funeral picketing law at the time.  Now it does, like nearly every other State.  The Court noted this and held that it would not decide whether such regulations are constitutional because Maryland had no such law at the time.

So, it seemed that Westboro could insult funeral-goes to its shriveled-heart's content...?

But then, a shooter killed two movie-goers in Lafayette, Louisiana.  The shooter apparently was a Westboro sympathizer.

When Louisiana Governor (and presidential candidate) Bobby Jindal heard that Westboro might come to the victims' funerals he warned:  "If they come here to Louisiana, if they try to disrupt this funeral, we're going to lock them up," Jindal said during an interview on Sunday's Meet the Press. "We're going to arrest them. They shouldn't try that in Louisiana. We won't abide by that here."

Jindal then issued an executive order directing authorities to "strictly enforce" Louisiana's disturbing the peace law, which prohibits any "utterance, gesture, or display designed to disrupt a funeral," and "intentionally blocking, impeding, inhibiting, or in any other manner obstructing or interfering, within five hundred feet" of a funeral or funeral procession.

Curiously, Jindal's executive order was not on the Governor's website until after the funerals commenced and possibly after they were over.  I was checking the Governor's website throughout the day.

Jindal's threats worked.  The Westboro protestors did not show up.

This is not really new.  The City of Charleston temporarily banned funeral protests within 300 feet of a funeral following the recent, tragic shootings there.

And after the recent, terrible shootings in Chattanooga, the Mayor of that town issued an order stating that any picketing, protesting or demonstrating within 500 feet of a funeral or memorial service is considered "offensive" under Tennessee law and is prohibited.

I can't tell if the Westboro protestors showed up in Charleston or Chattanooga.

Is this all constitutional?  Probably not.  But, practically, it's working ... at least it worked in Louisiana.

In Synder, the Supreme Court left the door open to legitimate time, place and manner restrictions for funeral protests.  But, vague terms prohibiting "gestures" or "utterances"  that would "inhibit" a funeral from 500 feet away are tough to square with the First Amendment.  And is all picketing around funerals "offensive" in Chattanooga?  What about the counter-protestors who often show up to shame Westboro, as they deserve to be shamed, and support the fallen.  Also, it doesn't help much that the clear intent of the temporary Charleston law and Jindal's threats were unequivocal: "We're going to arrest them."  That strongly suggests (as if there were any doubt) that the rules and enforcement are viewpoint-based, which is a First Amendment no-no.

But, if Westboro won't show up or fight it, then maybe this is the formula for silencing Westboro: pass a law, even a temporary one, restricting funeral protests and make it clear that the law will be enforced (with prejudice if necessary) and, adding on, keep an executive order mandating that enforcement out of public view or commentary until after it is too late to challenge it. 

As much as I really don't like what the Westboro people say and do, I am not comfortable with vague laws that restrict speech coupled with threats to arrest peaceful protestors.  I am also unimpressed that Governor Jindal boasts about his support for the Second Amendment (see his Twitter account), even in the face of a mass shooting, but seems to have such little regard for the (appropriately unpopular) First Amendment rights of the Westboro Church, as recognized by the Supreme Court just a few years ago.

Tuesday, June 30, 2015

California's new vaccination law vs. freedom of religion

California Governor Jerry Brown just signed into law a new provision (SB 277) requiring all public and private schoolchildren to be vaccinated, with exceptions only for medical reasons.  The law will be phased in, and it has a very small window for "personal belief" exemptions for non-run-of-the-mill vaccines, but it has no special exception for religious objections.  

Nothing in the First Amendment or any other law will give parents opposed on religious grounds a way to object to the new vaccine law. 

In Employment Division v. Smith, the Supreme Court held that a generally applicable law (forbidding the use of an hallucinogenic drug) had no exception under the First Amendment where Native Americans wanted to use the drug for religious reasons.  The Court specifically noted that the "First Amendment's protection of religious liberty" does not require exemptions from "civic obligations" such as "compulsory vaccination laws."  

The decision follows another from 1905, Jacobson v. Massachusetts, where the Supreme Court upheld a mandatory vaccination law, making an analogy to conscription laws where men could be called into the armed forces even over their "religious or political convictions." 

And, in 1944, the Supreme Court held in Prince v. Massachusetts that a parent "cannot claim freedom from compulsory vaccination for the child," because the "right to practice religion freely does not include liberty to expose the community or the child to communicable disease."

After the ruling in Employment Division v. Smith, Congress passed a law, the Religious Freedom Restoration Act (also known as RFRA), which gives some room to object to general federal laws for religious reasons. This will not impact California's new vaccination law because the federal RFRA does not apply to the States, and, unlike other States, California has no state version of the Religious Freedom Restoration Act.

California's courts also would be very unlikely to read a religious exception into the vaccination law, especially since the Legislature opted not to include one.  In fact, the new law would actually repeal the existing law that allows for an exemption to immunizations based on personal beliefs.  

And California's courts repeatedly have cited the Supreme Court's decisions in Jacobson and Prince for the proposition that compulsory vaccinations of children do not infringe on religious liberty interests.

California is now the 32nd state to eliminate a general personal belief exemption and the third (along with Mississippi and West Virginia) to eliminate a religious exemption.

So, any noise about challenging California's new vaccination law on religious grounds is just that -- noise.  Get ready for the needles.

Monday, June 29, 2015

The First Amendment and the Gay Marriage Decision

The Supreme Court's decision in Obergefell v. Hodges, recognizing marriage equality for same-sex couples, is an enormously important milestone on the road to full equality for the LGBTQ community.  Its detractors vow to resist the ruling, claiming in particular that vendors should be able to refuse to provide food, flowers, etc. at gay weddings, and that protesting officiants should be able to opt out of performing such marriages.

These challenges find little, if any, support in the First Amendment.  Forcing a rabbi or priest or other member of the cloth who opposes gay marriage for religious reasons to conduct a same-sex wedding would directly intrude on religion.  But, having a disagreeable county clerk officiate such a wedding would not violate the First Amendment. 

The continuing battle will be whether religion can serve as a justification for discrimination based on sexual orientation and gender identity under laws other than the First Amendment.  It cannot and should not, but there is more legal work to be done.

The First Amendment Is No Defense To A General Law

The First Amendment's Free Exercise Clause states that Congress (or, by extension, local and state governments) shall not prohibit the free exercise of religion.  The Free Exercise Clause does not, however, exempt people from following neutral laws of general applicability.  That means:  laws meant to apply to everyone do not give anyone a free pass simply because religion is invoked.

The rule comes from Employment Division v. Smith, a case where the Supreme Court held that Native Americans could not use peyote (a Schedule I controlled substance -- i.e., an illegal drug), even for religious rituals, and also claim unemployment benefits.  The Court ruled that, because no one was supposed to use peyote, and the individuals at issue were legitimately discharged from their jobs for using peyote (for religious reasons), the State could fairly deny them unemployment compensation.  Who wrote the decision for the Court in that landmark case?  Justice Scalia.

Following the logic in Justice Scalia's opinion, jurisdictions that disallow discrimination based on sexual orientation and/or gender identity (including in federal government contracting) cannot rely on the First Amendment's religious freedom guarantee as a defense to a discrimination claim.  For example, the New Mexico Supreme Court recently held, over First Amendment objections, that a photographer could not refuse to photograph a gay wedding because that State has a public accommodation law, a neutral law of general applicability, that forbids discrimination based on sexual orientation.

But not all jurisdictions in America bar discrimination based on sexual orientation.  Yesterday, the Los Angeles Times told the story of Katrina Martir, a teacher in Kentucky who was fired for revealing that she is lesbian, with no legal recourse because neither her county nor her State barred such discrimination.  In such unfortunate cases, the party discriminating needs no First Amendment "defense" because the law did not forbid the discrimination in the first instance.

Now, however, under Obergefell, it is not legal for the government to deny marriage licenses to same-sex couples anywhere in the U.S.  Thus, a pastor or other religious figure (i.e., not a government agent) could legitimately raise deeply-held religious objections to performing a gay wedding.  But, a county clerk or magistrate judge no longer has a such an argument.

Ken Paxton, the Attorney General of Texas defiantly vowed to resist Obergefell by telling government employees in Texas that they have a First Amendment right not to officiate same-sex marriages.  The Attorney General's edict fundamentally misunderstands the law.  Government employees who officiate marriage ceremonies are not members of the clergy nor are they random citizens entitled to exercise their religious rights.  They are on the job.  Their job includes following the law, and it is disgraceful for the highest-ranking law enforcement official in their state to instruct them otherwise.  A county clerk who officiates marriages is acting as the face of the government, not a religion and not their own personal perspective.  The First Amendment does not permit the government to refuse marriage licenses based on religion.  That would squarely violate another clause in the First Amendment, which forbids the establishment of religion. 

Religious Freedom Restoration Act 

In response to the Supreme Court's decision in Employment Division v. Smith, Congress (apparently very concerned about Native Americans' right to use peyote for religious reasons) passed the Religious Freedom Restoration Act, giving a statutory right to invoke religious freedom in response to otherwise generally applicable federal laws.  RFRA -- not the Free Exercise Clause of the First Amendment -- has later been used as a justification for allowing people, and even corporations, to avoid laws of general applicability.

The most recent, famous application of RFRA was in Burwell v. Hobby Lobby, when the Supreme Court, in a decision side-stepping the First Amendment, ruled that a closely-held (family owned) corporation with religious objections did not need to provide employees with insurance coverage to obtain contraceptive drugs despite Obamacare regulations.

In the Burwell v. Hobby Lobby decision, the Court addressed an important issue: would RFRA allow businesses to invoke religion to discriminate based on race?  Of course not, the Court wrote, in an opinion authored by Justice Alito and joined by Justice Scalia (author of Employment Division v. Smith) and Justice Kennedy (author of Obergefell v. Hodges): "Our decision today provides no such shield [against racial discrimination].  The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."  This rule barring racial discrimination, even for religious reasons, follows on decades of cases and laws ensuring that people of all races are permitted to participate in society equally.

As sweeping and monumental as the Obergefell decision is, it does not clearly resolve a lingering issue about whether the government has a compelling interest in stopping sexual orientation discrimination the way it does with racial discrimination.

But, it is quite clear from Obergefell, that, in the context of weddings at least, same-sex couples have equal rights to opposite-sex couples to government recognition, and that the First Amendment cannot be used as a justification to treat same-sex couples differently.  The Court explained that laws and other government actions banning same-sex marriage "abridge central precepts of equality" and are unconstitutional under the Equal Protection Clause of the 14th Amendment.  Apparently the Texas Attorney General missed that page in the opinion.

The Obergefell decision expressly acknowledges -- as it must -- that the First Amendment still protects vocal opposition to gay marriage; "The Constitution, however, does not permit the State to bar same sex couples from marriage on the same terms as accorded to couples of the opposite sex."  The decision also acknowledges that one of the bases for recognizing marriage as a fundamental right comes from the right of association, which is grounded in the First Amendment.

"It's certainly going to be an issue"

During oral argument in the Obergefell case, Justice Alito noted that a religious school lost its tax exempt status for opposing interracial marriage and asked if the same thing could happen to a religious school that opposed same-sex marriage.  Solicitor General Donald Verrilli (who was arguing in favor of gay marriage for the federal government) candidly responded:  "... It's certainly going to be an issue."  It is an issue because of the inconsistency in the law, nationwide, in disallowing discrimination based on sexual orientation.  As I noted, many states do not outlaw discrimination based on sexual orientation, and many states have their own versions of RFRA.

The So-Called "First Amendment Defense Act"

One week before the Court issued its decision in Obergefell Senator Mike Lee (R-UT) and Representative Paul Labrador (R-ID) introduced the "First Amendment Defense Act."  The law is meant to stop "discrimination" against people who believe (or act on their belief, whether religious or "moral") that marriage is limited to one man and one woman. In other words, the law basically says:  "Don't discriminate against people who discriminate." The proposed law would be unconstitutional.

First, this proposed law assumes that the First Amendment itself is no defense.  If this is really what the First Amendment meant, we wouldn't need a new law to "defend" it because the First Amendment is part of the Constitution, the supreme law of the land.   

Second, this proposed law would enshrine and essentially endorse discrimination against same-sex couples, contrary to the holding in Obergefell.  Imagine if it read:  the federal government will not deny taxpayer-funded government contracts or grants to anyone who, for religious or other "moral" reasons, acts on their opposition to interracial marriage.  Wrong.  Bad.  Now, replace the word "interracial" with "same-sex".  The proposed law simply cannot be squared with what the Court just held in Obergefell -- that the due process clause of the 14th Amendment to the Constitution protects "personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."  A contrary system would consign same-sex couples "to an instability many opposite-sex couples would find intolerable in their own lives."

What if a person who believes firmly in supporting gay marriage for religious or moral reasons refuses to help fund a government contract or grant award to a person who disagrees with gay marriage?  Under the proposed law, there would be no support in the law for the pro-gay marriage religious or moral conviction. Such a viewpoint-based law, like all viewpoint-based laws, would be presumptively unconstitutional, and could not survive First Amendment scrutiny.  Ironic, isn't it?  The "First Amendment Defense Act" would violate the First Amendment.

Final Thoughts

Obergefell was decided correctly.  I look forward to the day when the law will not countenance discrimination based on sexual orientation or gender identity in any context.  We are not there yet.

As strongly as I believe in full equality, I do have a problem with forcing members of the clergy to perform marriage ceremonies antithetical to their strongly-held beliefs.  That is a line I think is fairly drawn in favor of religion -- no matter how unfortunate I perceive those religious views to be.   I have no problem, however, with telling county clerks -- who are the face of the governments that employ them -- to perform gay marriages even if their religious beliefs (or their moronic Attorneys General) dictate otherwise.

In order to fully realize the equal dignity recognized in Obergefell, we need more laws making clear that discrimination against those who are LGBTQ has no place in our society or under our Constitution.

Friday, April 4, 2014

The McCutcheon hangover. Take two aspirin, America. It's not so bad.

Relax.  It's going to be OK.

Two days ago, in McCutcheon v. FEC, the US Supreme Court struck down limits on what individuals can give, in the aggregate every two years, to candidates for federal office, political parties and political action committees (PACs).  That means an individual is still limited in how much he or she can give to particular candidates, parties and PACs, but is not limited in how much he or she can give overall in each two-year cycle.

Does McCutcheon mean the sky is falling?  No. 

Look, the decision is not surprising.  After Buckley v. Valeo (where the Court held that money equals speech), First National Bank of Boston v. Belloti (holding that corporations have political speech rights) and Citizens United v. FEC (striking down limits on spending money for electioneering independent of campaigns) there was no real doubt that a majority of this Court would make sure that individual donors can contribute to as many federal candidates as their bank accounts will allow.

The chorus in America is hoarse from screaming disdain for the decision.  I think the hand-wringing over this particular case is overdone.

I respond to some of the most common reactions to McCutcheon below:

Reaction #1:  The McCutcheon decision means there will be even more money in politics!

Response:  Maybe.

First note:  more money was spent on the 2008 presidential race (pre-Citizens United) than the 2012 presidential race (post-Citizens United); although more was spent on congressional races in 2012 than in 2008.  Which brings us to whether the McCutcheon decision will bring more money into politics.

There are fewer than 700 people in the entire country who bumped up against the aggregate limits (what McCutcheon addresses) in the last election cycle.  Is it likely that all 700 of those individuals will max out now that the aggregate limits are gone?  Is it likely that thousands more people will exceed what would have been the aggregate limits pre-McCutcheon?  I doubt it because those same people already could have donated even more to SuperPACs.

Remember that after Citizens United was decided in 2010, SuperPACs were created, which allow unlimited donations and unlimited spending independent of candidates' campaigns.  A lot of money poured into SuperPACs.  In fact, there was approximately $1 billion in spending by independent groups in the 2012 election cycle, but it could have been even more because SuperPACs can take an unlimited amount of money.  Of that $1 billion, 63% came from the top 1% of donors (the top 1%, by the way, is a lot more than 700 people).  It seems just as likely that high-rollers will simply shift their massive donations from SuperPACs to candidates and parties, than that there will be a marked influx of money -- i.e., "more money" -- overall in the long run.   

Reaction #2:  More money in politics is terrible!

Response:   This has evolved into a truism we hear all the time without much articulated support.  I start from the position that discussion of political issues is the highest, most prized form of speech. 

Whether I am right or wrong about the total amount of money that will flow into politics after McCutcheon, I am not convinced that more money in politics is an inherently bad thing.  The money we're talking about will be taken out of the accounts of wealthy people and given to media companies of various types for advertising (good for a struggling industry and borderline national economy (read jobs)) in order to discuss political issues.  Discussing and engaging on political issues is not the worst way to spend our money.

In the first election cycle after Citizens United, Americans spent around $6 billion on politics, which is less than we spend every year on potato chips.  We spend more than twice as much on pornography.  And, we spend over $100 billion per year on beer.  Is a lot -- albeit a whole lot -- of campaigning an inherently worse way to shuffle around funds in society? 

Reaction #3: More money in politics means only the rich will have a voice!

Response:  So, you admit that money equals speech ...?

Just because the rich can spend more on politics (and they have always been able to do that, by the way) doesn't mean they will get the political results that they want.

Reaction #4:  More money in politics means bigger donors will get whatever they want!  

Response:  Please give voters a little more credit.

The non-partisan, non-profit Center for Responsive Politics found that, in the 2012 election cycle (i.e., post-Citizens United), the candidate with the outside money advantage lost in seven out of the ten congressional races that garnered the most outside spending. 

In California's last gubernatorial election, Republican Meg Whitman spent $177 million and Democrat Jerry Brown spent $36 million.   Brown won.

In 1992 and 1996, billionaire Ross Perot spent tens of millions of his own money running for president.  Perot's portrait is not hanging in the White House.

Reaction # 5:  More money in politics means Republicans will sweep into power!

Response:  See my response to Reaction #4.

According to the New York Times, in the 2012 presidential race, Obama's camp raised more money than Romney's camp, but Obama spent less than Romney.  SuperPACs attacking Obama wildly outspent those attacking Romney.  Among SuperPAC donors (no limit, remember), 49% of those supporting Obama gave $1 million or more, compared with 42% of those supporting Romney.  Obama won.       

Perhaps the best response to Reaction #5 came from Matt Canter, deputy executive director of the Democratic Senatorial Campaign Committee, who said that the McCutcheon decision would "significantly boost our efforts to keep control of the Senate."

Oh yeah, that reminds me ... the Democrats also kept control of the Senate after Citizens United.
Reaction #6:  More money in politics means more corruption!

Response:  Not to sound too Clintonesque, but it depends what you mean by "corruption."

First, there can only be corruption if the candidate you supported wins.  (See my response to Reactions #4 and #5.)  If a donor hedges his or her bets and supports more than one candidate in the same race, then won't voters just hear more voices?  Isn't that a good thing in political debate?

There is concern among many that McCutcheon limits the idea of corruption to quid pro quo (Latin for "something for something") dealing, and discounts the purportedly corrupting effects of influence and access.  But, if corruption gets defined too broadly then any efforts by any constituent who gave any money to get a politician to act could be considered corrupt.  I like the idea of our representatives listening to us.  I know that means that big donors may get more time, but they don't get more votes than we do.  Again, see my response to Reactions #4 and #5.

Reaction #7:  More money in politics is not what the Founders would have wanted!

Response:  Really?

Hey, I have a great admiration for a great many things that the Founders imparted to us, but their concept of who should have influence in politics is not one of them.  In the Founders' era, only white males who owned land could vote and hold office.  A battle against McCutcheon is not the right time or place to invoke the Founders.

Reaction #8:  This decision will lead to more bad rulings on campaign finance issues!

Response:  Again, apologies to Clinton, but it depends what you mean by "bad".

Maybe McCutcheon will open the door to even more money in politics in later decisions.  That is very possible.  The Court could one day strike down the ban on "soft money" contributions to political parties and the individual limits on donations to particular candidates.  The concurring opinion by Justice Thomas in McCutcheon was ready to do away with all of those limitations.   But, I find it significant that no one else on the Court joined Thomas' opinion.

Also, the Chief Justice's controlling opinion in McCutcheon reemphasized the importance of disclosure requirements -- i.e., encouraging transparency of the very donations at issue.  I like the idea advanced by the Sunlight Foundation that there ought to be real-time transparency for hard money contributions in politics.  That would mean we could instantly see, on the Internet, who is giving what to whom.  Such immediate transparency would further our democratic principles, further address many of the reactions noted above and be consistent with the First Amendment.

Monday, January 27, 2014

US Supreme Court's first defamation case in nearly a decade has high points

Earlier today, the US Supreme Court issued its decision in Air Wisconsin Airlines Corp. v. Hoeper.  It is the first defamation case before the Court since 2005.

The Air Wisconsin case involved statements made by an airline regarding Hoeper, a pilot the airline was on the verge of firing.  The airline expressed its concern to TSA that Hoeper, who was about to board a flight as a passenger, was "unstable" and might possibly be armed because Hoeper was someone with clearance to carry weapons on planes (he was not carrying a weapon).  Hoeper sued for defamation and won a large judgment from a jury, which was later affirmed by the Colorado Supreme Court.  The airline said it was protected from the lawsuit by a relatively new federal law that gives extra protection for statements intended to aid in airline safety.

The US Supreme Court's decision is notable for a few reasons.

First, it reaffirmed that substantially true statements cannot support a claim for defamation.  According to some, there was an open question whether even true statements, spoken without sufficient knowledge of whether they are true or false, could support a claim for defamation.  In other words, there was some theorizing that even true statements could support a defamation claim if the speaker acted recklessly toward whether the statements were true (or even if the speaker incorrectly believed them to be false).  We've all heard the phrase "truth is a defense to defamation."  Setting aside my firm belief that it should be more than just a defense -- i.e., that defamation plaintiffs should always have to prove falsity -- a result that would have imposed liability on true statements in a case like Air Wisconsin would have been a terrible blow for the First Amendment ... not to mention airline safety.  Thankfully, the Court ruled the right way.

Second, a corollary to the first point is that the Court reaffirmed that it is not possible to establish actual malice (knowledge of falsity or reckless disregard for the truth) without showing that the allegedly defamatory statement was false[Disclosure:  I was counsel of record on the First Amendment Coalition's amicus curiae (friend of the Court) brief in this case, arguing that every context where the actual malice standard appears (including this one) requires a showing a falsity.  It is heartening to know that the Court agreed with that position!]

Third, the Court independently reviewed the jury's decision whether the statements were materially true or false.  That important decision should guide other, lower appellate courts that they ought to do the same thing under similar circumstances.

Fourth, the decision uses the phrase "materially" true and false repeatedly, emphasizing that only "materially false" statements -- i.e., statements that leave a different effect on the mind of the reader or listener than that which the truth would have produced -- can support a defamation claim such as Hoeper's.  That phrase originates from the second-to-last defamation case before the Supreme Court, decided in 1991, but the doctrine is more commonly referred to as "substantial truth" by practitioners.  In fact, that is how I referred to it above.  I think the principle being set forth is the same, but it remains to be seen whether there will be a shift in nomenclature as a result of this decision.  

Fifth, the biggest (pleasant) surprise was that the Court reviewed the jury's verdict on material falsity, and then reversed the jury's decision.  The airline and Hoeper asked the Court to decide whether the jury's decision on falsity should be reviewed by an appellate court.  The Court conspicuously excluded that issue when agreeing to hear the case.  But, a majority (6-3) went on to not only rule that the Court should evaluate that issue, but that the jury got it wrong.  The dissenters, Scalia, Thomas and Kagan -- interesting bedfellows! -- thought that a jury should take another look with proper instructions from the trial court.

Saturday, January 18, 2014

New Decision About Blogger's Speech Rights Is Not As Exciting As Reports Suggest

Yesterday, the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering most of the West) issued a decision at the crossroads of blogging and the First Amendment.  The case is called Obsidian Finance Group v. Cox.  The result was correct: the blogger won when she should have.  From some of the press coverage, it is tempting to believe the decision is monumentally amazing or at least unexpected.  It is neither. 

My favorite headlines about the decision announce that bloggers have First Amendment rights.  Of course they do.  That is not worth much more discussion.  Moving on ...

The decision held the plaintiffs had to show negligence in order to hold Cox (the blogger) liable for defamation.  For those unfamiliar with defamation law, that might sound like a big deal, but the reality is that all defamation claims involving speech on a matter of public concern (as the speech in this case did) require at least a showing of negligence, and many require much more, such as actual malice (which means knowledge of falsity or reckless disregard for the truth), in order to establish liability and recover damages.  That rule, laid down by the US Supreme Court in Gertz v. Robert Welch, Inc., is forty years old. The fact that the Ninth Circuit finally got around to applying the Gertz rule to the Internet is pretty unremarkable and really could not have come out any other way without directly contradicting US Supreme Court precedent.  The trial court's conclusion that the plaintiffs did not even need to show negligence was obviously wrong, and the Ninth Circuit really was compelled to reverse that decision. 

Some also seem very excited by the Court's contention that, up until this decision, neither the US Supreme Court nor the Ninth Circuit had previously held that the "institutional press" has the same basic rights in a defamation case as "individual speakers."  I think that is just plain wrong ... because the issue has come up before.  For example, in the grand-daddy defamation case of them all, New York Times v. Sullivan, the Supreme Court held that its First Amendment-based rulings applied to protect the "individual petitioners" in the companion case, Abernathy et al. v. Sullivan, as well as the New York Times.  Moreover, yesterday's Ninth Circuit decision acknowledges that US Supreme Court precedent requires treating the institutional press the same as individuals in defamation cases.  And, the Court notes, it helps that "sister circuits" come to the same conclusion.   (BTW - I recognize that this case was decided under Oregon law which claims that Gertz only protects media defendants, but Oregon's take on the First Amendment simply can't be squared with US Supreme Court precedent.)

There is another reason the decision is less than exciting.  The Court held that the plaintiffs were not public officials who would have had to prove the higher actual malice standard to establish liability.  I disagree with the Court's conclusion on this point because the plaintiffs were appointed by another court to serve as bankruptcy trustees, making their status as public "officials" at least a close call.  But, apparently the blogger (Cox) also argued in the trial court that the plaintiffs were public figures (in addition to being public officials), even though she seemed to abandon that argument in the appellate court.  That's too bad, because I don't think it is a close call to say that the plaintiffs -- who were appointed by the court and subject to the court's review and control -- were at least limited purpose public figures (meaning they would have to prove liability under the onerous actual malice standard). 

Also, some are concerned that the Ninth Circuit considered some of the defendant's blog postings to be constitutionally protected opinion, particularly in light of their hyperbolic context.  That is not cause for concern.  Context has long been a hallmark of determining whether a statement is constitutionally protected opinion in the Ninth Circuit and the US Supreme Court.  Since the advent of Internet cases, courts recognize that things move faster and looser on the Internet, lending statements toward constitutionally protected opinion. 

Monday, January 13, 2014

Polar Vortex In Legal Hell Before Satanists Get Monument In Oklahoma

Satan worshipers want to put a 7-foot monument to Satan (technically a horned dude named Baphomet) on the Oklahoma capital grounds.  They say it will complement a privately-funded 10 Commandments monument that was possessed and installed by the Oklahoma Legislature a few years ago.  The ACLU sued to have that monument exorcised from the capital.  It was a bad omen for the Satanists that, pending the ACLU's suit, legislators collectively said "no damn way," putting a pitch fork in any plans to put up any other monuments.

"Like H-E-double-hockey-sticks," say the Satanists and the Church of the Flying Spaghetti Monster (no, I'm not making that up ... here is their website in case you want to join ... you can become an ordained Pastafarian minister for only $20!). 

So, do the Satanists have a legal shot in hell at getting their monument?  The devil is in the details, but -- basically -- no, they don't. 

The US Supreme Court recently held unanimously in City of Pleasant Grove v. Summum, that a local government may choose to put up a 10 Commandments monument, but decline to put up another religiously-oriented monument in a public space.  Although the Pleasant Grove case was technically decided on Free Speech Clause grounds, a majority of the Court stated that they saw no violation of the First Amendment's clause forbidding the establishment of religion.

There is a better chance that the ACLU will succeed in showing that there ought to be no new religiously-based monument on the Oklahoma state capital grounds ... not even one of the 10 Commandments.  Ah ... maybe that's the point!!! Maybe the Satanists are really just the devil's advocate.  They may lack soul, but they are fiendishly clever! 

PS - Please forgive me.  Am I going to burn for all the bad puns in this post?  You know who made me do it ...