Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses. First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment.
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court. Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court. While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.
The RNLA is pleased to announce that FEC Commissioner Matthew S. Petersen will be speaking at the annual National Election Law Seminar in St. Louis, Missouri. The seminar will take place on August 3rd and August 4th of 2018.
From 2005 until his appointment to the Commission, Mr. Petersen served as Republican chief counsel to the U.S. Senate Committee on Rules and Administration. In this capacity, Mr. Petersen provided counsel on issues relating to federal campaign finance and election administration laws as well as the Standing Rules of the Senate.
Commissioner Petersen has played a crucial role since being appointed as a commissioner at the FEC, including handling some of the most important campaign finance issues and cases in history. He recently stated:
Over the past two decades, the internet has transformed our political process. Federal
candidates, parties, and independent actors increasingly rely upon online platforms to
communicate with voters and raise campaign funds, while American citizens use internet
resources to obtain election-related information and organize. The use of the internet as a tool
for political engagement has had a democratizing effect: Low-cost platforms enable speakers
with few resources to communicate to large audiences, while a seemingly infinite array of
publicly available resources aid the citizenry in casting informed votes. Overall, this
development has been a positive one.
The internet’s expanding influence on the electoral system has created regulatory
challenges, however, as the Commission has grappled with how to apply a law written to address
communications transmitted primarily through “our parents and grandparents’” television, radio,
and print media to speech conducted on computers, tablets, smart phones, and other emerging
technologies. For instance, the Commission has previously considered advisory opinions
regarding how federal disclaimer requirements apply to character-limited texts, small ads posted
on Facebook and Google, and small banner ads on mobile devices. Our current rulemaking on
internet communication disclaimers represents the most recent and ambitious effort in this
ongoing process.
As we move forward with this rulemaking, its twin goals should be (1) vindicating the
informational interest of the American people to know who is sponsoring political ads, and (2)
ensuring that online technologies continue to flourish as tools for political speech. To meet these
goals, any final rule must be flexible enough to accommodate the numerous devices and
platforms by which political speech is delivered, the ways voters consume information online,
and the rapid pace of technological innovation. Today’s hearing represents an important step
towards adapting the Commission’s disclaimer regulations to the realities of internet political
communications, and I am optimistic that the Commission will be able to successfully complete
this task.
Click on the link provided for more information on how to purchase tickets to hear Commissioner Petersen and the rest of the highly-qualified speakers at the RNLA’s National Election Seminar.
In
the past, conservative groups had to disclose sensitive information to the
bureaucratic and often biased organization that is the Internal Revenue
Service (IRS). Fox News reports that thanks to a recent policy change, that is no longer the case.
The
Trump administration is lifting requirements that some tax-exempt groups
disclose the identities of their donors to federal tax authorities. The change
benefits groups that spend millions of dollars on political ads, such as the
U.S. Chamber of Commerce and an organization tied to the billionaire Koch
brothers.
This
major announcement will bring a needed change of privacy to an organization that has historically
discriminated against conservatives and right-leaning organizations.
Under the new guidance, social-welfare groups and other
tax-exempt organizations, besides charitable and political organizations, will
no longer have to provide the IRS with the names and addresses of donors. The
groups will still have to keep donor information in their own records and make
it available for the IRS when the agency needs the information in audits of
taxpayers.
Majority Leader Mitch McConnell praised the change on the Senate floor yesterday:
Last night, the Internal Revenue Service made an important announcement. It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association. And it’s a straightforward, commonsense policy decision. . . .
It raises the question: If the IRS isn’t permitted to do anything with this set of Americans’ private information, why collect it in the first place? Unfortunately, we know exactly what happens when the government stockpiles private data about the donations through which Americans participate in the public discourse. We know exactly why many on the left are keen for bureaucrats to have this confidential information. Where it leads, is Americans being bullied – bullied -- for exercising their First Amendment rights. . . .
So I welcome this announcement, and applaud the leadership of Secretary Mnuchin and Acting IRS Commissioner David Kautter. I’m glad that this step will make the right of Americans to freely advocate for their strongly-held beliefs less vulnerable to the malice of some in government, and to the proven failures of bureaucracies. And I urge continued vigilance for all of us who cherish our First Amendment.
Conservative groups have
long been calling for a policy proposal like this one to take place, even
coming together to write a letter to President Trump. The New York Times reports,
Americans for Prosperity and other
501(c)(4) organizations in the Koch brothers’ network of advocacy groups were
among dozens of such nonprofit groups to sign onto a letter sent in May to Mr. Trump and Mr. Mnuchin declaring a policy
change “an issue of utmost importance.” The letter accused the I.R.S. of
“targeting of nonprofit organizations on the basis of ideology.”
Officials with the Treasury Department
largely echoed that reasoning, explaining that the move was driven in part by
the I.R.S.’s inappropriate targeting of political groups during the
administrations of Presidents George W. Bush and Barack Obama.
The RNLA
welcomes this new policy change as private organizations should never face
government discrimination for their political beliefs. This proposal serves as
one more safeguard against potential abuse.
One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.
The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:
His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . .
Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties.
In an opinion that preceded and foreshadowed the Citizens United and SpeechNow.org opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.
Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”
Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court. As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation. While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.
As America celebrated Independence Day yesterday, our first freedoms are increasingly under threat from those who would set them aside to advance their progressive policy goals. As Robert Shibley of the Foundation for Individual Rights in Education (FIRE) wrote of the emerging liberal strategy:
Those on the left who argue that it’s time to jettison our nation’s uniquely liberal conception of free speech are making a grievous mistake, but not a new one. . . . The underlying assumption of the new First Amendment critics is that it is self-evident that progressive positions (whatever those may be) are correct. Therefore, if the application of free speech principles makes accomplishing their aims more difficult, it’s freedom of speech that is the problem. . . .
Censors of all stripes worry that without proper guidance and regulation, our society might make the “wrong” choices, as determined by, well, them. But policies adopted under conditions where all sides have a right to be heard carry the legitimacy they do precisely because free discussion and debate increase people’s confidence in the conclusions that are ultimately reached. . . . Whether in science, in a criminal trial, or in society at large, there is no reason to trust a conclusion that was reached without access to and consideration of all of the relevant information—the very information that censors wish to suppress.
Mr. Shibley described how First Amendment protections do not favor one side of the political aisle but benefit all speakers equally. He concluded by noting how free speech is fundamental to our freedom and system of government:
Especially in today’s hyper-polarized politics, labeling an idea or proposition as merely a weapon for, or a conspiracy by, the other side is akin to giving partisans a permission slip to turn off their brains. It’s an easy, expedient measure that gives your “team” one less thing to think about in a world deluged with news and information. It’s much harder to step back and consider that what you see as a “sword” in the hands of your opposition—a metaphor sometimes used by the left-leaning thinkers discussed above—might look a whole lot more like a shield to the other side.
Trying to see the argument from the other side is hard work. But then, governing a heterogeneous nation of more than 300,000,000 is hard work, and in our political system, we all share in that responsibility. When asked on the last day of the Constitutional Convention what kind of government the Framers had produced, Benjamin Franklin famously replied, “A republic, if you can keep it.” The First Amendment, and the culture of free speech for which it serves as a touchstone, is a key part of what makes our great experiment work.
Thanks to FIRE and the many other organizations fighting to defend First Amendment rights (unlike liberal organizations like the ACLU, which are increasingly only defending progressive speech), thereby preserving freedom for all Americans, not only those who want to say what is politically correct.
The RNLA will cover current First Amendment issues in politics at its National Election Law Seminar on August 3-4 in St. Louis, Missouri. More information and registration details are here.
Today, the Supreme Court decided National Institute of Family and Life Associates (NIFLA) v. Becerra. Justice Thomas wrote for the five-member majority concerning the two pro-abortion notices required of pro-life pregnancy center by the California law at issue (the FACT Act) (citations omitted):
The licensed notice is a content-based regulation of
speech. By compelling individuals to speak a particular
message, such notices “alte[r] the content of [their]
speech.” . . . Although the licensed notice is content based, the Ninth
Circuit did not apply strict scrutiny because it concluded
that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional
speech” as a separate category of speech that is
subject to different rules. . . . But this Court has not recognized “professional speech”
as a separate category of speech. Speech is not unprotected
merely because it is uttered by “professionals.” . . .
The dangers associated with content-based regulations
of speech are also present in the context of professional
speech. As with other kinds of speech, regulating the
content of professionals’ speech “pose[s] the inherent risk
that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information.” . . . “[T]he best test of truth is the
power of the thought to get itself accepted in the competition
of the market,” and the people
lose when the government is the one deciding which ideas
should prevail. . . .
In sum, neither California nor the Ninth Circuit has
identified a persuasive reason for treating professional
speech as a unique category that is exempt from ordinary
First Amendment principles. We do not foreclose the
possibility that some such reason exists. We need not do
so because the licensed notice cannot survive even intermediate
scrutiny. California asserts a single interest to
justify the licensed notice: providing low-income women
with information about state-sponsored services. Assuming
that this is a substantial state interest, the licensed
notice is not sufficiently drawn to achieve it.
If California’s goal is to educate low-income women
about the services it provides, then the licensed notice is “wildly under inclusive.” . . . Yet “[p]recision . . .
must be the touchstone” when it comes to regulations of
speech, which “so closely touc[h] our most precious freedoms.” . . .
Turning to the other notice requirement:
We need not decide what type of state interest is sufficient
to sustain a disclosure requirement like the unlicensed
notice. California has not demonstrated any justification
for the unlicensed notice that is more than “purely
hypothetical.” . . .
Even if California had presented a nonhypothetical
justification for the unlicensed notice, the FACT Act unduly
burdens protected speech. The unlicensed notice imposes
a government-scripted, speaker-based disclosure requirement
that is wholly disconnected from California’s informational
interest. . . . And it covers a
curiously narrow subset of speakers. . . . This Court’s
precedents are deeply skeptical of laws that “distinguis[h]
among different speakers, allowing speech by some but not
others.” Speaker-based laws run the risk
that “the State has left unburdened those speakers whose
messages are in accord with its own views.”
The majority did not reach the plaintiffs' viewpoint discrimination claim (see footnote 2 on page 6). Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, agreed that the Court was correct not to reach the viewpoint discrimination question but concurred to note that the "apparent viewpoint discrimination here is a matter of
serious constitutional concern":
It does appear that viewpoint discrimination is inherent
in the design and structure of this Act. This law is a
paradigmatic example of the serious threat presented
when government seeks to impose its own message in the
place of individual speech, thought, and expression. . . . This compels individuals to contradict
their most deeply held beliefs, beliefs grounded in basic
philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive
application suggest a real possibility that these individuals
were targeted because of their beliefs. . . .
Governments must not be allowed to force persons to
express a message contrary to their deepest convictions.
Freedom of speech secures freedom of thought and belief.
This law imperils those liberties.
While liberals will use any means to attempt to force people to support their policy agenda, the First Amendment stands against government efforts to force people to speak contrary to their personal views just as it stands against restricting people from speaking. Today the Supreme Court once again relied on the First Amendment to vindicate the rights of the people against government oppression.
The Supreme Court also upheld President Trump's so-called "travel ban" today in Trump v. Hawaii.
The Court's last decision day for this term is tomorrow. The decision in Janus v. AFSCME (concerning compelled union dues for government employees) is expected, and if any justices are retiring, it will likely be announced tomorrow. Follow the RNLA on Twitter for news tomorrow morning.
This morning, the Supreme Court struck down Minnesota's ban on political apparel at the polls in Minnesota Voters Alliance v. Mansky. We have covered this important case extensively.
Chief Justice Roberts, writing for the seven-justice majority, first concluded that because the polling place is a non-public forum, Minnesota could indeed "choose to prohibit certain apparel
there because of the message it conveys, so that voters
may focus on the important decisions immediately at
hand."
But the Chief Justice described how broad Minnesota's ban is (citations omitted):
But the State must draw a reasonable line. Although
there is no requirement of narrow tailoring in a nonpublic
forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must
stay out. Here, the
unmoored use of the term “political” in the Minnesota law,
combined with haphazard interpretations the State has
provided in official guidance and representations to this
Court, cause Minnesota’s restriction to fail even this forgiving
test.
Again, the statute prohibits wearing a “political badge,
political button, or other political insignia.” It does not
define the term “political.” And the word can be expansive.
It can encompass anything “of or relating to government,
a government, or the conduct of governmental affairs,” or anything “[o]f, relating to, or dealing with the
structure or affairs of government, politics, or the state.” Under
a literal reading of those definitions, a button or T-shirt
merely imploring others to “Vote!” could qualify.
As was made abundantly clear by the state's counsel during oral argument, Chief Justice Roberts then described how Minnesota could not even define or consistently describe what apparel would and would not be banned by the law, noting that the law "poses riddles that even the State’s top lawyers
struggle to solve." (citations omitted):
“[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.” But the State’s difficulties with its restriction go
beyond close calls on borderline or fanciful cases. And
that is a serious matter when the whole point of the exercise
is to prohibit the expression of political views.
It is “self-evident” that an indeterminate prohibition
carries with it “[t]he opportunity for abuse, especially
where [it] has received a virtually open-ended interpretation.” Election
judges “have the authority to decide what is political”
when screening individuals at the entrance to the polls. We do not doubt that the vast
majority of election judges strive to enforce the statute in
an evenhanded manner, nor that some degree of discretion
in this setting is necessary. But that discretion must be
guided by objective, workable standards. Without them,
an election judge’s own politics may shape his views on
what counts as “political.” And if voters experience or
witness episodes of unfair or inconsistent enforcement of
the ban, the State’s interest in maintaining a polling place
free of distraction and disruption would be undermined by
the very measure intended to further it.
The Chief Justice concludes by noting that other states have bans on apparel and insignia at the polling place that are much more clearly defined (citations omitted):
We do not suggest that
such provisions set the outer limit of what a State may
proscribe, and do not pass on the constitutionality of laws
that are not before us. But we do hold that if a State
wishes to set its polling places apart as areas free of partisan
discord, it must employ a more discernible approach than the one Minnesota has offered here.
Cases like this “present[] us with a particularly difficult
reconciliation: the accommodation of the right to engage in
political discourse with the right to vote.” Minnesota, like other
States, has sought to strike the balance in a way that
affords the voter the opportunity to exercise his civic duty
in a setting removed from the clamor and din of electioneering.
While that choice is generally worthy of our respect,
Minnesota has not supported its good intentions
with a law capable of reasoned application.
As the opinion notes, not only did this law burden voters and leave them vulnerable to unequal enforcement, it also placed burdens on hardworking poll workers (who have many other tasks on Election Day) to both interpret and enforce an unclear law. This decision is a victory both for the First Amendment rights of voters but also for good election administration, as states do their local election officials and poll workers an immense disservice and cause disruptions when they provide unclear guidelines for procedures at the polling place.
The stifling of speech on college campuses has become an issue at virtually every institution of higher learning across the country. On Monday, Attorney General Sessions and the Justice Department took a major step in the fight for preserving the First Amendment rights of college students everywhere.
The Department of Justice today filed a Statement of Interest in Speech First, Inc., v. Schlissel in the Eastern District of Michigan. The plaintiff, Speech First, a nationwide organization dedicated to defending civil liberties, alleges that the University of Michigan has adopted policies prohibiting and punishing speech protected by the First and Fourteenth Amendments. Speech First alleges that the University of Michigan’s policies on “harassment,” “bullying,” and “bias” are so vague and overbroad as to prompt students to limit their speech out of fear that they might be subject to disciplinary sanction, including “individual education” or “restorative justice” at the hands of the University’s Bias Response Team.
The United States’ Statement of Interest argues that the University of Michigan’s Statement of Student Rights and Responsibilities, which prohibits “harassment,” “bullying,” and “bias,” is unconstitutional because it offers no clear, objective definitions of the violations. Instead, the Statement refers students to a wide array of “examples of various interpretations that exist for the terms,” many of which depend on a listener’s subjective reaction to speech.
According to the Plaintiff free speech organization Speech First, the speech policies of the University of Michigan make it far too easy for conservative speech to be silenced. Virtually any student could get another in trouble with the university through a claim of “harassment” or “bullying” just because they disagree with certain political opinions. Higher education should be a place that stimulates differing opinions and intellectual curiosity, not to place arbitrary limitations on certain viewpoints. Acting Associate Attorney General Jesse Panuccio shared this very sentiment in issuing the following statement:
“Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities.”
The RNLA commends the Department of Justice’s fight to preserve our First Amendment rights at the University of Michigan and other colleges and universities across our nation.
This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.
Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):
As the record shows, some of the commissioners
at the Commission’s formal, public hearings endorsed the view that
religious beliefs cannot legitimately be carried into the public sphere
or commercial domain, disparaged Phillips’ faith as despicable and
characterized it as merely rhetorical, and compared his invocation of
his sincerely held religious beliefs to defenses of slavery and the Holocaust.
No commissioners objected to the comments. Nor were they
mentioned in the later state-court ruling or disavowed in the briefs
filed here. The comments thus cast doubt on the fairness and impartiality
of the Commission’s adjudication of Phillips’ case.
Another indication of hostility is the different treatment of Phillips’
case and the cases of other bakers with objections to anti-gay messages
who prevailed before the Commission. The Commission ruled
against Phillips in part on the theory that any message on the requested
wedding cake would be attributed to the customer, not to the
baker. Yet the Division did not address this point in any of the cases
involving requests for cakes depicting anti-gay marriage symbolism.
The Division also considered that each bakery was willing to sell other
products to the prospective customers, but the Commission found
Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer
Phillips’ concern that the State’s practice was to disfavor the religious
basis of his objection.
For these reasons, the Commission’s treatment of Phillips’ case
violated the State’s duty under the First Amendment not to base laws
or regulations on hostility to a religion or religious viewpoint. The
government, consistent with the Constitution’s guarantee of free exercise,
cannot impose regulations that are hostile to the religious beliefs
of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs
and practices. . . . [T]he record
here demonstrates that the Commission’s consideration of Phillips’
case was neither tolerant nor respectful of his religious beliefs. . . .
The Commission’s hostility was inconsistent with the
First Amendment’s guarantee that our laws be applied in
a manner that is neutral toward religion. Phillips was
entitled to a neutral decisionmaker who would give full
and fair consideration to his religious objection as he
sought to assert it in all of the circumstances in which this
case was presented, considered, and decided. In this case
the adjudication concerned a context that may well be
different going forward in the respects noted above. However
later cases raising these or similar concerns are
resolved in the future, for these reasons the rulings of the
Commission and of the state court that enforced the
Commission’s order must be invalidated.
Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles
of our free-speech jurisprudence and would justify
virtually any law that compels individuals to speak." Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence
suggesting hostility toward Mr. Phillips’s sincerely held
religious beliefs, two of our colleagues have written separately
to suggest that the Commission acted neutrally
toward his faith when it treated him differently from the
other bakers—or that it could have easily done so consistent
with the First Amendment. But, respectfully, I do not see
how we might rescue the Commission from its error."
Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law. An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights. (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents. Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.) The Supreme Court righted this wrong today.
Today, a judge in the Southern District of New York held that President Trump may not block users from his personal Twitter account, @realDonaldTrump:
This case requires us to consider whether a public official
may, consistent with the First Amendment, “block” a person from
his Twitter account in response to the political views that person
has expressed, and whether the analysis differs because that public
official is the President of the United States. The answer to
both questions is no. . . .
We then proceed to the substance of plaintiffs’ First
Amendment claims. We hold that portions of the @realDonaldTrump
account -- the “interactive space” where Twitter users may directly
engage with the content of the President’s tweets -- are properly
analyzed under the “public forum” doctrines set forth by the
Supreme Court, that such space is a designated public forum, and
that the blocking of the plaintiffs based on their political speech
constitutes viewpoint discrimination that violates the First
Amendment. In so holding, we reject the defendants’ contentions
that the First Amendment does not apply in this case and that the
President’s personal First Amendment interests supersede those of
plaintiffs.
In the hours since its release, this decision has already ignited a storm of debate, some uninformed (see generally, the media) and some informed (see Eugene Volokh's initial analysis here). Prof. Volokh notes that the Eastern District of Kentucky recently reached the opposite conclusion.
While many issues are unsettled when applying the First Amendment to social media and other technologies, Ed Whelan highlights some concerns with the decision:
Ilya Shapiro points out that the identity of the parties may have improperly affected the holding:
It is also worth noting that this case is concerning Donald Trump's personal Twitter account, @realDonaldTrump, which has been his for years and will remain his after leaving office, and not the official presidential Twitter account, @POTUS, which is operated by the current holder of the White House. While the #resist movement may be cheering this decision as a victory against President Trump, few are pausing to consider its vast implications, as Mr. Whelan points out, if applied to public officials' Twitter accounts, from members of Congress down to the clerks at City Hall.
RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .
His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”
Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied:
Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . .
What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.
Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government. This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.
Yesterday, a judge for the U.S. District Court for the Northern District of California granted in part and denied in part the defendants' motion to dismiss in the challenge to U.C. Berkeley's disparate treatment of conservative speakers:
U.S. District Judge Maxine Chesney found the plaintiffs adequately alleged that UC Berkeley used an overly broad events policy to charge excessive fees and impose other unreasonable restrictions on conservative speakers. . . .
Chesney rejected claims that university officials engaged in intentional “viewpoint discrimination,” finding the same security concerns were not an issue with more liberal speaking events compared to conservative speakers.
RNLA Vice President for Communications Harmeet Dhillon is counsel to the plaintiffs:
“We’re very pleased that our lawsuit against UC Berkeley officials in their individual and official capacities is moving forward,” said plaintiffs’ attorney Harmeet Dhillon. “We look forward to litigating these issues.” . . .
Plaintiffs’ attorney Dhillon called the case “an example of student groups fighting back” against universities across the country suppressing conservative speech, especially schools in California.
“It’s a core constitutional right being impeded by the government, so we will move forward and vindicate their core First Amendment speech rights in court,” Dhillon said.
Free speech on campus is an important current issue that will be discussed at our National Policy Conference tomorrow.
The RNLA is pleased to announce that former U.S. Solicitor General Paul Clement will speak at the National Policy Conference on Friday, April 27. Tickets and more information are available here. Unlike previous years, walk-up registration will not be available this year.
Mr. Clement has had a distinguished career of public service and private practice, is one of the nation's foremost appellate and Supreme Court advocates, and is widely regarded as an example of a principled and ethical attorney, after he resigned from his law firm instead of abandoning an existing client when it was no longer politically popular.
He spoke to the RNLA at the National Policy Conference in 2016 on "Scalia and His Legacy on the Supreme Court," which was an excellent analysis of Justice Antonin Scalia's jurisprudence and his immense impact on the legal world and the Supreme Court. Mr. Clement gave a poignant tribute to Justice Scalia's life, wit, and impact on legal interpretation at the Supreme Court Bar's memorial to the late Justice (beginning at 32:25):
The Justice had a transformative effect on the Supreme Court and the way it decides cases. His impact on statutory construction, which is the bread and butter of what the Court does, was nothing short of Copernican, with the center of attention returned to the text. He likewise championed a focus on the text and original public meaning of the Constitution, and he strove mightily to ensure that his methodology for interpreting both statutes and the Constitution produced predictable legal results even when they did not comport with his policy preferences. His votes to vindicate the First Amendment rights of flag burners are famous examples. . . .
Just as his opinions will continue to shape the way the law is understood, he will continue to shape the way briefs are written and the way advocates prepare for oral argument.
This year, we will have a panel focusing in part on Justice Scalia's successor on the Court, Justice Neil Gorsuch. We are honored for Mr. Clement to address the RNLA in two weeks, and we invite you to join us.
In what is turning out to be a blockbuster term for the First Amendment (Janus v. AFSCME & Minnesota Voters Alliance v. Mansky) and redistricting cases (more generally), today the United States Supreme Court heard another highly controversial case involving compelled speech and the First Amendment: National Institute of Family and Life Advocates v. Becerra.
From Amy Howe at SCOTUS Blog:
The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices. . . .
Overall, a majority of the justices seemed skeptical over the law and its impact on First Amendment rights. SCOTUS Blog continues:
Justice Samuel Alito...was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?” After Joshua Klein, the deputy state solicitor general who argued for California, agreed that it was, Alito peppered him with questions about various exemptions in the California law and concluded that “when you put all this together, you get a very suspicious pattern.”
Perhaps more crucially for the state, [Justice Elena] Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.”. . . Klein tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions [and the laws impetus].
Ms. Howe noted, Justice Neil Gorsuch astutely declared: “[I]t’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
Even the current swing-vote, Justice Kennedy, seemed to question the soundness of this law, at issue. Ms. Howe notes:
Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked [Michael] Farris [attorney arguing on behalf of the centers] what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement? . . . Farris responded that the billboard would indeed have to disclose that the nonprofit does not provide medical services – a point with which Klein seemed to agree. . . Farris’ answer drew a sharp response from Kennedy. Requiring the inclusion of a 29-word notice on a billboard displaying a two-word message, Kennedy suggested, seems to impose an “undue burden” on the nonprofit’s speech “that should suffice to invalidate the statute."
Ms. Howe closed by noting:
By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of [this California law]. . . .
We will keep you posted on major U.S. Supreme Court cases as arguments begin to wind-down and opinions are issued by the Court leading up to the close of this term.
RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.
Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.
Mr. Daugherty explains:
Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . .
Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .
Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:
The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .
Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:
[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.
Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).
Today, the Supreme Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a challenge to Minnesota's ban on political apparel at the polling place. RNLA member Ilya Shapiro summarized the problems with the law in the Wall Street Journal:
Minnesota’s ban, by contrast, finds no historical parallel. A generic pro-voting message like “Rock the Vote” is arguably a political statement forbidden by the law. But how could it possibly be construed as pressuring anyone to vote for a particular candidate? Whatever legitimate concerns the state may have about the electoral process, it can’t justify a ban on voters’ nondisruptive speech—let alone on unobtrusive paraphernalia that’s unrelated to any issue or candidate on the ballot.
Minnesota’s ban on political apparel is so sweeping that another Supreme Court precedent is far more relevant than Burson. In the 1987 case Airport Commissioners v. Jews for Jesus, the high court unanimously struck down a ban on “First Amendment activity” at Los Angeles International Airport. The court explained that such a ban was overbroad because it necessarily extended far beyond speech “that might create problems such as congestion or the disruption of the activities of those who use LAX.” . . . That’s not to say that places with security or governmental-integrity concerns have to be free-for-alls. Burson was right to allow reasonable regulations that ensure orderly elections. Courtrooms and other sensitive areas—what lawyers call “nonpublic forums”—can impose certain restrictions. But “the wearing of a T-shirt or button that contains a political message,” the court explained in Jews for Jesus, “is still protected speech even in a nonpublic forum.”
Most fundamentally, Minnesota’s law is unjustified because its fear of political expression is so disconnected from normal society. . . . As the Court found in Tinker, which upheld students’ rights to wear black armbands to school in protest against the Vietnam War, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
It’s vital that the Supreme Court defend voters’ right to express themselves so long as they don’t prevent other voters from going about their civic business. . . .
RNLA member Steve Klein described highlights from oral arguments during today's Federalist Society teleforum call:
- Except for Justice Thomas, a lot of participation from all the justices, questioning both sides intensely.
- Justice Kennedy, Alito, and Roberts wanted an articulation of a limiting principle of what is “political.” David Breemer arguing for MVA said that it’s clear this law is overbroad.
- “Please ID me” buttons – Mr. Breemer acknowledged they could be banned under anti-fraud/deception laws; whether display of an ID (as a means of making other voters think that ID was required) could be banned in the polling place was not raised during oral arguments.
- Justice Alito laid out the absurdity of breadth of prohibition.
- State has backed off breadth, perhaps in poll worker instructions, saying political is related to election and well-known. Justice Alito said that actually makes it worse. Justice Alito asked if wearing a rainbow shirt was ok, state said yes, as long as gay rights were not on the ballot.
- Fact that election judges, who have authority to judge what is allowed, are selected from both major parties is supposed to alleviate concerns about viewpoint discrimination.
- Justice Roberts pointed out that the punishment belies the interest in polling place orderliness that state puts forward, because person is allowed to vote but name is taken down for later fine. The force of the law is the chilling effect on speech.
- Even if the Court uses non-public forum analysis, there would be de facto viewpoint discrimination (NRA banned but “Parkland Strong” ok; Colin Kaepernick jersey ok, All Lives Matter not). Respondents said these are tough calls but poll workers need to be able to make these calls to maintain order.
- Justice Kagan had lighthearted criticism of polling place as place of reverence where we can suspend politics.
- Chilling conclusion by Respondents: Justice Kagan jokingly said, maybe you should make the law broader, and they said yes, we could make it broader.
- Effort to find limiting principle but aside from Justice Alito, no clear indication where any justice stood
- Burson v. Freeman was plurality opinion, and we will likely see different perspectives here also.
- Overbreadth law protects against arbitrary and discriminatory enforcement.
- Mr. Breemer pointed out several times that disruption and delay in the polling place is not caused by a person coming in an NRA shirt but by a poll worker saying the voter cannot wear it, subsequent discussion, taking down the voter's name, etc.
- Justice Gorsuch pointed out that state has to put forth an interest that justifies the ban.
- Mr. Klein concluded by noting that voting is very important, but there have to be limits on power of polling place workers to restrict voters’ rights; the law especially should not punish voters for participating in our democracy.
Given the state's counsel's different responses to hypotheticals proposed by the Court (notably, that a shirt with the text of the Second Amendment would be political, and therefore banned, but not a shirt with the text of the First Amendment), this tweet by Baker Hosteler attorney Andrew Grossman summarized the key issue in the case well:
The entire transcript in this important case can be read here, and our past coverage of the case is here.
