Category: First Amendment

19 Points on Wikileaks

Don’t worry, it’s not another prolix post from me, just commentary on Jack Goldsmith’s Seven Thoughts on Wikileaks and Lovink & Riemens’s Twelve theses on WikiLeaks. (And here’s an FAQ for those confused by the whole controversy.)

Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:

What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why?

Lovink & Riemens provide something of an answer:
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Ward Churchill and the Future of Public Employee Speech Retaliation Litigation

The Colorado Court of Appeals released its decision in Ward Churchill’s appeal in his First Amendment retaliation case against the University of Colorado last Wednesday (which must be one of the slowest news days of the year). A few years ago, the University terminated Churchill, a tenured professor in the University’s Department of Ethnic Studies, after concluding that he had engaged in several incidents of research misconduct, including evidentiary fabrication, plagiarism, and falsification. These conclusions were reached after several years of internal investigative and adjudicative proceedings to examine allegations of Churchill’s research misconduct. As most everyone is aware, the University did not launch its investigation until after a public outcry arose from controversial statements in an essay that Churchill wrote comparing the victims of the 9/11 terrorist attacks to “little Eichmanns,” in reference to the notorious Nazi war criminal. The perhaps forgotten larger point of the essay was an argument that the 9/11 attacks were provoked by American foreign policy actions.

Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.

In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed. Read More

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Unwitting Mashup of Facebook and Juicy Campus?

In a move that recalls the postings on the now-defunct Juicy Campus, Facebook groups devote themselves to vulgar descriptions of female high school students.  As Donna St. George of the Washington Post reported on November 11, a Facebook page targeted 30 female students from the T.C. Williams High School in Alexandria, Virginia.  It featured photographs of the students accompanied by “offensive or sexual comments.”  Another similar page included a picture of the school’s female principal.  The Daily Beast recently reported that Choate Rosemary Hall boarding school banned access to Facebook through campus computers after discovering a 200-plus-page-long threat penned by female students that disparaged fellow female students.  The Facebook page described Choate students as “hos” and “gross and faked and spray tanned.”

Facebook’s Terms of Service requires users to agree to refrain from bullying, intimidating, or harassing other users.”  Pursuant to that policy (or so we can guess), Facebook took down the page of the 30 girls with the sexually demeaning comments five days after T.C. Williams High School’s principal filed a complaint with Facebook.  Despite Facebook’s real-name culture, the author of the Facebook page has not been identified, an unsurprising result given the advantages provided ill-meaning individuals who want to evade responsibility for online activity.  In the boarding school matter, it seems that a student copied the thread, publishing it for the consumption of students (and everyone else) who were not privy to the Facebook page.  According to the Daily Beast, school administrators “hired a computer forensics expert to track how it had been made public.”  Two of the girls who wrote the post were expelled and four were suspended.

In the T.C. Williams High School matter, the principal went on the school’s PA system for two days in a row to let students know that she thought the page was “totally offensive.”  The Washington Post reports that the principal also asked students to avoid accessing it: “We’re better than this,” she told the students.  If that is all the principal did, it seems a weak showing of moral leadership and civic education.  Hopefully, the incident began a longer-term conversation about many things, including bullying, gender harassment, the risks of online activities, and the responsibilities of students while online.  Now, the school officials’ response in the Choate matter is worth discussing.  Norm Pattis, a Connecticut trial lawyer, contends that the school’s response is too harsh given the dire consequences of a school expulsion on a student’s chances of getting into college.  Prohibiting Facebook on campus may also be an empty gesture.  On the one hand, Choate students have continued to tweet and tumbl on their school accounts.  They also can access social media including Facebook on their mobile devices, raising the same concerns of online civility.  On the other, as Pattis suggests, the school missed a crucial teaching opportunity (beyond a 90-minute discussion with students) on how to be leaders, rather than the quick fix of banning Facebook on the campus network.  That sounds right to me, too.

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Does the Roberts Court Have a First Amendment Agenda?

Commentators sometimes study the Supreme Court’s certiorari grants over short periods to discern patterns that suggest an agenda. There are different types of agendas. Some Justices may have a substantive agenda to expand, contract, or change the approach to an area of constitutional doctrine or other federal law. A different agenda might be to clarify or further develop an area of law, but not have a particular direction in mind. That is, the goal simply may be clarity.

Sometimes an agenda may be the product of external events, such as the Court’s foray into limits on executive powers growing out of government actions to address terrorist threats after 9/11 (though, as Fred Schauer argues, the Court’s approach to case selection does not always mirror the nation’s governance priorities). At other times, it might occur internally. It would not be wild to suggest that a majority of the Rehnquist Court consciously wanted to alter the landscape of federalism by reviewing several Commerce Clause and state sovereignty cases over the span of just a few terms.

Recently, there is evidence that the Roberts Court has some sort of First Amendment agenda, but it’s not at all clear what that agenda is. Three times in the last two terms, the Supreme Court has granted certiorari to review a First Amendment case in which the government has argued for a new exception to the presumptive rule against government regulation of speech based on its content. Last term, the Court heard United States v. Stevens, 130 S. Ct. 1477 (2010), a challenge to a conviction under a federal law prohibiting the knowing creation, sale, or possession of a depiction of animal cruelty for commercial gain. This term, the Court has already heard argument in Snyder v. Phelps, a case arguing for an exception for emotionally harmful protests outside of funerals, and Schwarzenegger v. Entertainment Merchants Association, a case suggesting a possible exception for regulation of the sale of extremely violent video games to minors.

Though this is an oversimplification, it is generally still valid to describe basic First Amendment analysis as establishing a presumption against government regulation based on the content of the speech (content can include viewpoint, subject matter, and arguably other categories). Exceptions to the general presumption exist for government regulation of “fighting words,” obscenity, child pornography, and threats, as well as altered analytical frameworks for fraud in commercial speech, libel against public figures, and incitement to imminent unlawful conduct. There are continual attempts by government to expand or push the edge on these categories of unprotected or less protected speech, but Courts with vastly different ideological compositions typically resist efforts to carve out exceptions.  As observe in the Third Circuit’s opinion in Stevens, it has been over 25 years since the Court has recognized a new categorical exception to the content discrimination rule.

Given that resistance, the Court’s decisions to review Stevens, Snyder, and Entertainment Merchants in such a short time frame are certainly noteworthy. Read More

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Norton on Recent Developments of the Government Speech Doctrine

In light of recent decisions on the government speech doctrine, I asked guest blogger Helen Norton for her reactions to two recent cases.  Professor Norton has written important articles on government speech, most recently Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1 (2009) and The Measure of Government Speech: Identifying Expression’s Source, 88 Boston University L. Rev. (2008)–both are must reads.  I am thrilled that she made the time to share her thoughts with us.

Here is Professor Norton’s post:

In Garcetti v. Ceballos, the Supreme Court held that public employees’ speech made “pursuant to their official duties” receives no First Amendment protection because the government should be permitted to “exercise  . . . employer control over what the employer itself has commissioned or created.”  As I’ve written elsewhere, the Court’s willingness to permit the government to control public employees’ expression by characterizing such speech as the government’s own for which it has paid with a salary – regardless of that expression’s value to the public — has troubling implications for government workers’ free speech rights.  Indeed, lower courts now routinely apply Garcetti to dispose of government workers’ First Amendment claims at great cost to the public’s interest in government transparency.  These include claims by police officers fired for reporting public officials’ illegal behavior, police officers discharged for detailing health and safety violations, health care workers disciplined for conveying concerns about patient care, primary and secondary school educators punished for describing concerns about student treatment, and financial managers terminated for reporting fiscal irregularities.

Just as troubling, two recent developments illustrate lower courts’ willingness to extend the Court’s emerging government speech doctrine to limit free speech rights far outside of the public employment context.  In both cases, courts were quick to define the government’s expressive interests extremely broadly, and quicker still to perceive private individuals’ speech as threatening those interests.

First, the Fifth Circuit recently invoked government speech concerns to justify regulation of student speech.  More specifically, it rejected a public high school student’s First Amendment challenge to her dismissal from the cheerleading squad when she failed to cheer for a basketball player that she alleged had sexually assaulted her.  In a per curiam opinion by Judges Clement, Garza, and Owen, the panel characterized the plaintiff as “contractually required to cheer for the basketball team,” and thus “as a mouthpiece through which [the school] could disseminate speech —  namely, support for its athletic teams.”  The panel then cursorily concluded that the plaintiff’s conduct — rather than cheering, she folded her arms and remained silent when the player in question was at the free throw line — “constituted substantial interference with the work of the school . . . .”  To be sure, government often has a substantial interest in protecting the message it seeks to disseminate.  But a thoughtful analysis in this case would consider whether her silence, without more, posed any real threat to the school’s own expressive interests, and whether any such threat (if it existed) outweighs the First Amendment value of the student’s speech.  Unfortunately, the panel’s analysis did neither.

Second, the Supreme Court recently denied certiorari in Weise v. Casper, a case in which the lower court invoked government speech concerns to justify the exclusion of non-disruptive private citizens from an official governmental function based on their viewpoint.  That case involved a First Amendment challenge by two individuals who were forcibly ejected from a speech by President Bush that was otherwise open to the public (i.e., not a campaign function) simply because they arrived at the parking lot in a car with a “No Blood for Oil” bumper sticker.   The federal district court found no constitutional violation, using language that suggests an enormously broad understanding of government’s speech interests:  “President Bush had the right, at his own speech, to ensure that only his message was conveyed.  When the President speaks, he may choose his own words.”  The 10th Circuit affirmed on qualified immunity grounds, citing – inter alia — the Court’s recent government speech decision in Pleasant Grove v. Summum before concluding that the law is not clearly established as to “how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected expression outside the speech area.”

As Judge Holloway made clear in a vigorous and well-reasoned dissent, however, this should have been an easy case:  “On what basis could a representative of the executive branch have thought, on seeing Plaintiffs alight from Ms. Weise’s car with its bumper sticker, that they could be excluded from a public event solely because Ms. Weise had chosen to exercise her most fundamental First Amendment right outside the event and in the complete absence of any indication that Plaintiffs intended to even speak at the event, much less any indication of any intent to disrupt the event?”  Indeed, although the government speech doctrine certainly permits President Bush to control the content of his own speech and to refuse to share the event’s podium and microphone with dissenters (or any other speaker), the government’s expressive interests are in no way threatened by the mere presence of parties who may disagree with its views.

Justice Ginsburg echoed this bewilderment in her dissent from the denial of certiorari (joined by Justice Sotomayor):  “I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving [the plaintiffs] of access to the event.”  She also noted, however, that this particular case (in which the defendant-respondents were volunteers) could be distinguished from still-pending suits against the White House officials alleged to have ordered the ejection – suits that “may offer this court an opportunity to take up the issue avoided today.”  Let’s hope so.

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The Texas Pledge of Allegiance

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

I do not. Am I an unreasonable person? Before you answer, consider some feminist critiques of another reasonable person standard – specifically the reasonable person standard in Title VII sexual harassment cases. Early sexual harassment plaintiffs would have their claims dismissed when courts held that a reasonable person would not find that the work environment was hostile or abusive. For example, a court dismissed a claim even though it conceded that the humor in the workplace was “rough-hewn and vulgar” and that sexual jokes and “girlie magazines” were plentiful.

Feminist commentators identified three problems with these early sexual harassment decisions. First, feminists noted that due to societal inequalities that affected men’s and women’s life experiences, men and women have different perceptions of what constitutes harassment. For example, because women are at much more risk of sexual violence than men, sexual conduct that may seem like harmless fun to reasonable men can seem like a threat of violence to reasonable women. Second, feminists pointed out that the courts tended to equate the reasonable man’s reaction with a reasonable person’s reaction, and that this male norm was invisible to the usually male judges applying it. In other words, judges were unaware that they were presenting a subjective male perspective as an objective universal perspective. Third, the failure to recognize use of the unstated male norm perpetuated male privilege and power asymmetries instead of rectifying them – the actual goal of Title VII of the Civil Rights Act.

Each of these critiques applies equally to the Fifth Circuit’s analysis of “under God” in the pledge. First, just as your sex may inform your evaluation of sexual harassment, your religion may matter when evaluating government endorsement of religion. The phrase “under God” may seem perfectly harmless and totally nonsectarian to Jews, Catholics, Protestants, and Greek Orthodox. Such a reading is less likely if you are a Hindu, or a Buddhist, or an atheist, however, and do not worship or believe in God.

Second, the reasonable person in current Establishment Clause analysis is really a person belonging to the Judeo-Christian tradition. Like the unstated male norm in early sexual harassment evaluations, this unstated norm is presented as the universal, objective norm and is often invisible to those applying it. Thus, the Fifth Circuit can concede that a state reference to God “may not reach every belief system” but nonetheless still characterize it as “tolerable attempt at acknowledging religion without favoring a particular sect or belief.”

The third feminist insight — that the failure to recognize the unstated norm perpetuates power asymmetries and privilege — is also true here. Just as tolerance of sexual harassment made it easier to exclude women from the workplace and reinforced their second-class status, the proliferation of state invocations of God makes it easier to exclude religious outsiders from the political and social community and reinforces their second-class status. Yet one of the major goals of the Establishment Clause is supposed to be to protect religious minorities from precisely this result.

For more, please check out my new article: Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545 (2010).

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The Twentieth Anniversary of Employment Division v. Smith

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.

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The Slow Demise of Defamation and the Privacy Torts

The ABA Journal reports that the number of libel suits has been steadily dropping in the United States:

During his 30 years as a lawyer for the New York Times Co., George Freeman says, the “Gray Lady” faced four to five new libel suits per year, on average, and has had maybe eight pending against it at any one time. But that’s all changed.

Currently the New York Times is facing no libel suits, and the parent company faces just one in the U.S. “There’s been a fairly steep decline” in the last few years, he says. “The real question is whether it’s cyclical, as sometimes happens, although never quite to this degree, or whether there are other factors at play.”

The Times is definitely not alone, and the trend appears to have rolled out over two or three decades—not years—according to research from the Media Law Resource Center. The number of trials of libel, privacy and related claims against the media fell from 266 in the ’80s to 192 in the ’90s to 124 in the 2000s. In 2009, only nine such trials were held.

Why is this happening?  Is it because there’s much less defamation or invasion of privacy today?  I strongly doubt that’s the reason.  Instead, I can think of several reasons for the decline in defamation and privacy trials:

1. Defamation lawsuits are very hard to win.  Only about 13% are successful.  It is thus hard to find lawyers who will take the case.

2. Invasion of privacy lawsuits are also hard to win.  The privacy torts are fossilized into the forms they were in circa 1960, and they haven’t evolved to address modern privacy problems.  Moreover, courts cling to antiquated notions of privacy that make it hard for plaintiffs to prevail in a data-soaked world.

3. Focusing on trials might be the wrong thing to focus on.  Trials themselves are becoming a rarity.  Our legal system is overrun with costs, making it an extremely inefficient mechanism to resolve disputes.  It is ridiculous that in many cases, the costs of litigating the suit can be greater than the actual money at stake in the lawsuit.  Cases get settled just to avoid these costs.

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Two Meanings of Corporate Governance

The Harvard Law School Program on Corporate Governance recently issued an important paper entitled “Corporate Political Speech: Who Decides?” Written in response to the Citizens United decision, the paper makes the case for requiring shareholder approval of corporate political expenditures:

Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure — the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.

Meanwhile, as Marcy Murningham notes, “Congress faces a decision on the Shareholder Protection Act (HR 4790), which puts a [potential] check on the flood of corporate money into electoral campaigns.” Jennifer Taub makes a compelling case for passing the SPA. Ciara Torres-Spellicsy’s publication “Corporate Campaign Spending: Giving Shareholders A Voice” explains one way the process could work:

Congress should act to protect shareholders by giving them the power, under statute, to authorize political spending by corporations. The voting mechanics would work in the following way: At the annual meeting of shareholders, a corporation that wishes to make political expenditures in the coming year should propose a resolution on political spending which articulates how much the company wishes to spend on politics. If the resolution gains the vote of the majority of the outstanding shares (50% plus 1 share), then the resolution will be effective, and the company will be able to spend corporate treasury funds on political matters in the amount specified in the resolution. However, if the vote fails to garner the necessary majority, then the corporation must refrain from political spending until the shareholders affirmatively vote in favor of a political budget for the compan

Given the extant weakness of corporate governance mechanisms, I can’t guarantee that this will make a substantial difference for our public sphere. I reluctantly began to consider campaign finance reform a “lost cause” even before the opinion in Citizens United was issued. But I do think immediate and full disclosure of the ultimate source of contributions and expenditures is a sine qua non for a legitimate electoral process. New Jersey Senator Robert Menendez worries that “shadow groups [are] putting their thumbs on the scale with undisclosed, unlimited and unregulated donations.” It is deeply troubling to see entities like the US Chamber of Commerce promise “deniability” to donors. Proposals like the SPA and tougher disclosure rules would help put campaign finance back in the limelight it deserves, lest books like David C. Korten’s become the predominant social meaning of “corporate governance.”

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Justice Breyer is Wrong

Today comes word of an interview that Justice Breyer did with ABC in which he suggested that burning a Koran in the age of YouTube is akin to shouting fire falsely in a crowded theater.  Frankly, I think this is an absurd analogy.  First of all, there is a difference in intent.  The liar in the theater wants to hurt people and has no other purpose.  The burner of a Koran might want to incite violence, but may also just want to express his or her views (no matter how wacky they may be).  That’s a big distinction.

Moreover, I don’t care for the trajectory of this argument.  Under Justice Breyer’s analogy, the entire world is supposed to be considered “the theater” that we are all sitting in?  And if anything is said in “the theater” that causes (or is likely to cause) others in “the theater” to riot, then the Government can prohibit that speech?  That’s not my idea of “Active Liberty.”