FAN 114 (First Amendment News) 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied
The big First Amendment news of the 2015 Term was the cases the Court declined to hear. But even in the one case the Justices actually decided (4-4 cases don’t count), they were of two minds. The result: no blockbuster opinion like last Term’s Reed Town of Gilbert (2015).
The Court’s Schizophrenic Moment
The only First Amendment expression case the Justices actually decided was a government employee case, Heffernan v. City of Paterson (7-2). But even there, Justice Stephen Breyer’s majority opinion was (if I may) rather schizophrenic. One the one hand, the Court ruled that “when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.” On the other hand, the Court “assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards.”
Thus while Garcetti v. Ceballos (2006) remains the main law in the area of government-employee speech, a little wind has been taken from its sails.
Abood Lives On
The central issue in Friedrichs v. California Teachers Association was whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. After oral arguments, it looked like Abood was headed for the dead-precedents dumpster. Ever since Harris v. Quinn (2014), the conservative bloc of the Court seemed to be gunning for Abood.
Justice consider the rhetorical question Justice Antonin Scalia posed to Michael Carvin, counsel for Petitions: “Is is it okay to force somebody to contribute to a cause that he does believe in?” The drift of his other questions and comments moved along that conceptual track.
But Fate intervened, Justice Scalia died, and that left the Court divided 4-4, which affirmed the ruling of the Ninth Circuit in favor of the unions. Much as Heffernan saved Garretti, Friedrichs saved Abood. The rehearing petition was also denied. (See also Town of Mocksville v. Hunter, below.)
Some Important Cases — Cert. Denied
Some big First Amendment issues came before the Court this Term, but alas, all were ducked and thus delegated to the dustbin of forgotten cases. Just consider the following areas of the law:
- Right of Publicity: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” Despite the splits in the circuits and the confusion in the lower courts, the Justices denied the petition in Electronic Arts, Inc. v. Davis. → Paul M. Smith was lead counsel for the Petitioner.
- Deceptive & Misleading Ads: “Whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.” POM Wonderful, LLC v. FTC. → Tom Goldstein was lead counsel for the Petitioner.
- Student Speech: “Whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech.” Bell v. Itawamba County School Board. → Wilbur Colom was lead counsel for the Petitioner.
- Government Employee Speech: “Whether the First Amendment protects police officers who report misconduct in their ranks to a law enforcement agency for investigation.” Town of Mocksville v. Hunter. → Philip M. Van Hoy was lead counsel for the Petitioners.
- Occupational Speech: “Whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review.” Hines v. Alldredge. → Jeffrey Rowes was lead counsel for the Petitioner.
- Public Forum: “(1) Whether the Massachusetts Bay Transportation Authority (MBTA) created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same controversial subject matter as petitioners’ pro-Israel ad, and thus violated the First Amendment by rejecting petitioners’ ad based on its content; and (2) regardless of the nature of the forum, whether the MBTA’s rejection of petitioners’ advertisement based on an advertising guideline that prohibits ads considered by MBTA officials to be “demeaning and disparaging” was a viewpoint-based restriction of speech in violation of the First Amendment.” American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority. → Robert J. Muise was lead counsel for the Petitioners.
- Charitable Fund Solicitations: “Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.” Center for Competitive Politics v. Harris. → Allen Dickerson was lead counsel for the Petitioner.
- 4 Campaign Finance Cases:  “Whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.” Justice v. Houseman. → Paul Avelar was lead counsel for Petitioners.
-  Disclosure Requirements: “Does a state’s interest in “increas[ing] . . . information concerning those who support the candidates,” Buckley v. Valeo, permit it to condition a charity’s publication of a nonpartisan voter education guide, which lists all candidates equally and makes no endorsements, upon the immediate and public disclosure of the names and addresses of individuals making unrelated donations over the previous four years?” Delaware Strong Families v. Denn (Justice Thomas dissented from the denial of cert. and issued an opinion, and Justice Alito would have granted the petition. → Allen Dickerson was lead counsel for the Petitioner.
-  Whether Hawaii’s registration, recordkeeping, and and ongoing reporting requirements violate the First Amendment as interpreted in Citizens United v. FEC. Yamada v. Snipes. → James Bopp, Jr., was lead counsel for the Petitioners.
-  “Whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.” Miller v. Federal Election Commission. → Alan Morrison was lead counsel for the Petitioner.
Free Speech & College Campuses Read More