First Amendment Tag

Today, in a great victory for the City of Nashville and IMLA, the Sixth Circuit decided that Nashville did not violate the First Amendment when it fired a 9-11 dispatcher who used a racially offensive slur in the context of the 2016 election in a public Facebook post that identified her as an employee of the City.  The parties all agreed that her post was on a matter of public concern given the broader context of the election even though...

The Supreme Court heard oral argument—yet again—in two cases arguing it should adopt a standard for when partisan gerrymandering is unconstitutional. Before argument court watchers were focused on Chief Justice Roberts, but during argument Justice Kavanaugh stole the show. In 1986 in Davis v. Bandemer six Supreme Court Justices agreed that some amount of partisan gerrymandering is unconstitutional. But the Court has never laid out a test for making the determination. Most recently, last term, with Justice Kennedy still on the bench, the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. The two cases before the Court today came from North Carolina and Maryland favoring Republicans and Democrats, respectively. By almost any measure the gerrymanders were unapologetic and extreme. Now that the Court has five solidly conservative members many have speculated that these Justices will rule that partisan gerrymandering claims raise non-justiciable political questions, effectively ending litigation over this question. In oral argument last term Chief Justice Roberts, now the Court’s likely swing Justice, used the term “sociological gobbledygook” when expressing his skepticism about the Court being able to agree to a satisfactory test. Today, as is typical, the Chief asked questions of both side. For example, he questioned the merits of a test that assumes how people will vote based on past voting noting how often predictions of how people will vote are wrong. On the other hand, he acknowledged that the Maryland gerrymander “seems to be retaliation” and noted that the Supreme Court has an “established analysis” to deal with First Amendment retaliation claims.

Today, in narrow 7-2 ruling, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of the cakemaker, concluding that in adjudicating whether his religion “must yield to an otherwise valid exercise of state power,” (here the anti-discrimination provision of the state’s public accommodation law), the Colorado Civil Rights Commission failed to consider the case “with the religious neutrality that the Constitution requires.” This cases presented, as Justice Kennedy put it, “difficult questions as to the proper...

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case. In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting. Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that, Republican Larry Hogan won the Sixth District, beating his rival by 14 percent. A number of Sixth District Republicans sued alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.” In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that but-for the partisan gerrymander, Republicans would have won and continued winning in the Sixth District.

Lozman v. City of Riviera Beach is a double redux. The Supreme Court ruled on this case in 2013 on a maritime issue. The Court agreed to decide the issue this case presents in 2011, but ultimately failed to rule on it then. What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for a different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.

In 2016, the Supreme Court was expected to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. Justice Scalia died shortly after the Court heard oral argument in Friedrichs v. California Teachers Association. The Court ultimately issued a 4-4 decision which, practically speaking, kept Abood v. Detroit Board of Education (1977) on the books. With a ninth Justice now on the bench the Supreme Court has agreed to try again to decide whether to overturn Abood in Janus v. American Federation of State, County and Municipal Employees. More than 20 states authorize fair share for public sector employees. In Abood the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. The rationale for an agency fee is that the union may not discriminate between members and nonmembers in performing these functions. So, no free-riders are allowed.

Local governments don’t particularly care that trademarks aren’t government speech. But they do care about the breadth of the government speech doctrine because government speech is not protected by the First Amendment (meaning governments can say what they want and exclude messages they disagree with). In Matal v. Tam Justice Alito, writing for the majority, noted that Walker v. Texas (2005) “likely marks the outer bounds of the government-speech doctrine.” In Walker the Court held that messages on specialty license plates are government speech. Section 2(a) of the Lanham Act bars the Patent and Trademark Office (PTO) from registering marks that disparage persons and institutions. Simon Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. The PTO refused to register the band name concluding a “substantial composite of people” would find it offensive. Tam sued the PTO arguing that Section 2(a) violates the First Amendment Free Speech Clause. Among other arguments, the Supreme Court rejected the federal government’s claim that trademarks are government speech or a form of government subsidy. In rejecting the argument that trademarks are government speech, the Court noted that none of the factors present in Walker are present in this case. Specifically, license plates have long been used to convey state messages; are closely identified with the state as they are manufactured, owned, and generally designed by the state; and Texas directly controlled the messages conveyed on specialty plates.

In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result. Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed. This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles. The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham.  

In Gill v. Whitford the Supreme Court has agreed to decide whether and when it is possible to bring a claim that partisan gerrymandering is unconstitutional. While the Court has repeatedly struck down district maps that rely on racial gerrymandering, it has never ruled that maps drawn to secure partisan advantage are unconstitutional. In 2004, Justice Anthony M. Kennedy – who may be the deciding vote in Whitford – wrote a concurring opinion indicating that partisan gerrymandering could be unconstitutional. In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52 percent of the vote yielded 63 seats for Republicans. The challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process. Drawn from a 2015 article written by a University of Chicago law professor and a lawyer for the challengers, the standard is based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap.

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.  The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.  The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.