The First Amendment Protects Students’ Rights to Speak on Religious Subjects
If the First Amendment means anything, then school officials cannot prohibit students from handing out gifts with Christmas messages due to the religious content of those messages. Nonetheless, the Fifth Circuit held en banc that student speech rights are not “clearly established,” and that, therefore, two Plano, Texas officials could invoke qualified immunity to shield themselves from liability for doing so.
Yesterday Cato filed an amicus brief supporting the students’ request that the Supreme Court hear their case—our third brief in this long-running saga. We argue that educators have fair warning that viewpoint-based discrimination against student speech violates the First Amendment and thus may not invoke qualified immunity.
While the Fifth Circuit held that a constitutional right must have previously been defined with a “high degree of particularity” in a case that is “specific[ally] and factually analogous” to be clearly established, the Supreme Court has repeatedly said that neither “fundamentally similar” nor “materially similar” cases are required and that general statements of law can give fair warning. Indeed, if the Fifth Circuit’s qualified-immunity standard is upheld, it will be so difficult to establish fair warning for unconstitutional actions that qualified immunity will cease to be “qualified.”
Student speech rights were clearly established by the foundational student-rights case of Tinker v. Des Moines School District (1969), wherein the Court held that student speech cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school,” subject to limited exceptions. Such exceptions include lewd or vulgar speech, or speech that may reasonably be viewed as advocating unlawful drug use. Certainly the student speech at issue here, which included Christmas greetings written on candy canes, and pencils and other small gifts with messages like “Jesus loves me, this I know, for the Bible tells me so,” does not fall under those exceptions.
We further argue that the same standard for determining whether a law is clearly established should determine whether a court can look to nonbinding precedent; if Supreme Court and relevant-circuit precedent is on point, courts should not look to authority from other jurisdictions. These standards maintain the proper balance between providing officials with fair notice of behavior that could result in civil liability and ensuring that individuals have legal recourse when their rights are violated.
The Supreme Court will decide later this winter whether to take the case, Morgan v. Swanson, and hear argument in the fall.
Thanks to Cato legal associate Anastasia Killian for her help with this post, and with our brief.
Jury Nullification and Free Speech
Federal prosecutors are pressing their case against Julian Heicklen, the elderly man who distributed pamphlets about jury nullification. A lot of things are said about jury nullification and much of it is inaccurate. But whatever one’s view happens to be on that subject, I would have thought that the idea of talking about (and that includes advocating) jury nullification would be a fairly simple matter of free speech. We now know that the feds see the matter very differently. (FWIW, my own view is that in criminal cases jury nullification is part and parcel of what a jury trial is all about.)
In response to Julian Heicklen’s motion to dismiss his indictment on First Amendment grounds, federal attorneys have filed a response with the court. Here is the federal government’s position: “[T]he defendant’s advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred” [emphasis added]. This is really astonishing. A talk radio host is subject to arrest for saying something like, “Let me tell you all what I think. Jurors should vote their conscience!” Newspaper columnists and bloggers subject to arrest too?
If Heicklen had been distributing flyers that said, “I Love Prosecutors. Criminals Have No Rights!” there would not have been any “investigation” and tape recording from an undercover agent. Any complaint lodged by a public defender would have been scoffed at.
First Amendment experts will know more than I about the significance of the “plaza” outside the courthouse and whether or not that’s a public forum under Supreme Court precedents. The feds make much of the fact that the plaza is government property. Well, so is the Washington mall, but protesters have been seen there from time to time. The plaza, however, is not the key issue. Activists like Heicklen would simply move 10-20 yards further away (whatever the situation may be) and the prosecutors seem determined to harass them all the way back into their homes, and even there if they blog, send an email, post a comment on a web site, text, tweet, or use a phone to communicate with others. After all, so many people are potential jurors.
Judges and prosecutors already take steps to exclude persons who know about jury nullification from actual service. And the standard set of jury instructions says that jurors must “apply the law in the case whether they like it or not.” But the prosecution of Heicklen shows that the government wants to expand its power far beyond the courthouse and outlaw pamphleteering and speech on a controversial subject. Once again the government is trying to go over, around, and right through the Constitution.
For previous coverage and additional info, go here, here, and here.
Should You Need a License to Hang Curtains?
The latest example of liberty-reducing occupational licensing schemes comes to us from Florida, where a law restricts the practice of interior design to people the state has licensed. Those wishing to pursue this occupation must first undergo an onerous process ostensibly in the name of “public safety.”
In reality, the law serves as an anti-competition measure that protects Florida’s current cohort of interior designers. Our friends at the Institute for Justice have pursued a lawsuit against the law but lost their appeal in the Eleventh Circuit.
Cato has now joined the Pacific Legal Foundation on an amicus brief asking the Supreme Court to review that ruling. The lower court got it wrong not just with respect to the right to earn a living, however, but also on First Amendment grounds.
That is, interior design, as a form of artistic expression, is historically protected by the First Amendment. Indeed, interior designers are measured primarily on the value of their aesthetic expression, not for any technical knowledge or expertise. This type of artistry is a matter of taste, and the designer and client usually arrive at the end result through collaboration and according to personal preferences. Thus, the designer-client relationship has little in common with traditionally regulated professions such as medicine, law and finance, where bad advice can have real and far-reaching consequences—but even then, the Supreme Court has emphasized the First Amendment implications of placing “prior restraints” on expression through burdensome licensing schemes.
Instead of following that precedent, however, the circuit court carved out a constitutionally unprotected exception for “direct personalized speech with clients.” Florida’s “public safety” justification is similarly weak, given that the state has presented no evidence of any bona fide concerns that substantiate a burdensome licensing scheme that includes six years of higher education and a painstaking exam—instead relying on cursory allegations that, for example, licensed designers are more adept at ensuring that fixture placements do not violate building codes.
Finally, the Eleventh Circuit’s ruling disregarded the infinite array of auxiliary occupations the Florida law subjects to possible criminal sanctions: wedding planners, branding consultants, sellers of retail display racks, retail business consultants, corporate art consultants, and even theater-set designers could all get swept in. The state has already taken enforcement actions against a wide spectrum of people who are not interior designers, including office furniture dealers, restaurant equipment suppliers, flooring companies, wall covering companies, fabric vendors, builders, real estate developers, remodelers, accessories retailers, antique dealers, drafting services, lighting companies, kitchen designers, workrooms, carpet companies, art dealers, stagers, yacht designers, and even a florist. This dragnet effect also suggests that the law is too broad to survive constitutional scrutiny.
The Court will likely decide by the end of the year (or early 2012) whether to take this case of Locke v. Shore.
A ‘Soviet-Style Power-Grab,’ to Squelch Bad Press for ObamaCare
The Department of Health and Human Services has released new guidelines on communications between department employees and the media. The guidelines evidently require all communications to be approved by the Assistant Secretary for Public Affairs. Also: no off-the-record communications.
The media are not happy. The editor of FDA Webview & FDA Review writes (via Poynter; more here):
The new formal HHS Guidelines on the Provision of Information to the News Media represent, to this 36-year veteran of reporting FDA news, a Soviet-style power-grab. By requiring all HHS employees to arrange their information-sharing with news media through their agency press office, HHS has formalized a creeping information-control mechanism that informally began during the Clinton Administration and was accelerated by the Bush and Obama administrations. The U.S. now takes a large step toward joining other information-controlling countries like my native Australia, where government employees who talk with the news media without permission commit a federal crime. I came to the U.S. in 1974 to escape this oppression.
The HHS guidelines once again show that the purpose of a public information office is not to disseminate information to the public but to withhold information from the public.
Since this came on the heels of an HHS official announcing that the agency is scuttling ObamaCare‘s long-term care entitlement, a.k.a. the “CLASS Act,” one wonders if there is a connection. Or maybe HHS is just motivated by a general fear that the more the public learns about ObamaCare, the less we will like it.
(Update: Turns out, HHS released their new guidelines the same day that agency official voiced his opinion about the future of the CLASS Act. HT: Chris Jacobs.)
Unions Can’t Force Non-Members to Pay for Political Advocacy
As recent events in Wisconsin have demonstrated, public-sector unions are powerful political constituencies that can shape government to their ends. The Service Employees International Union, for example, the defendant in Knox v. SEIU Local 1000, has been ranked by OpenSecrets.org as the fifth biggest “heavy hitter” in federal politics in terms of campaign spending.
In 2005, the SEIU initiated a mid-year campaign against two California ballot measures, one that would cap state spending and another that would restrict the use of union dues for political purposes. In states such as California that do not have “right to work” laws, unions are allowed to take dues from non-union workers to finance collective-bargaining activities that, arguably, benefit all employees. Since 1977, however, unions have not been allowed to take dues from non-union members to pay for pure political advocacy without adequate protections for possible dissenters.
To distinguish political money from collective-bargaining money, the Supreme Court requires that a “Hudson notice” be given to all non-union workers. This notice gives non-members the opportunity to challenge political expenditures. But when the SEIU began garnishing 25-33% more wages to fight the California ballot initiatives, it issued no new Hudson notice, effectively forcing 28,000 non-member employees to finance its political speech.
As Judge J. Clifford Wallace wrote in dissent from the Ninth Circuit’s ruling in favor of the SEIU, “it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.” Now before the Supreme Court, Cato joined the Pacific Legal Foundation, the Center for Constitutional Jurisprudence, and the Mountain States Legal Foundation, on a brief supporting the non-union workers and arguing that the Court should focus not on the extent of the burden Hudson places on unions (as the Ninth Circuit did) but on the paramount reasons why the notice requirements exist in the first place: to ensure that an individual’s right to speak or remain quiet receives the protection it deserves.
As Judge Wallace put it, “the union has no legitimate interest . . . in collecting agency fees from nonmembers to fill its political war-chest.”
We also highlight the numerous unscrupulous tactics that unions have used over the years that violate the rights of dissenting workers — the same kind of rights that the Ninth Circuit treated with indifference. Finally, in light of the extreme political power that unions enjoy, the Court should find that the only way to adequately protect the rights of dissenting workers is to require that all non-union members must “opt-in” to any garnishment of wages for political purposes.
The Supreme Court will hear the Knox case in early 2012. Here again is Cato’s brief.
Free Speech? What’s Free Speech?
Internet site Gawker says that Ashton Kutcher’s editorship of Details magazine was “a brazenly self interested and highly misleading act of journalism.” He helped produce a special online version of the mag that featured tech companies he’s invested in without disclosing that fact.
Having disclosed it for him—the article is called “Ashton Kutcher Is a Massive Whore“—Gawker now reports on how federal officials are looking over their glasses at the television personality and entrepreneur.
“It’s certainly a possibility that a case like this could be investigated,” assistant Federal Trade Commission director Richard Cleland tells the Times of Kutcher’s Details special online issue, in which eight of 12 recommended products in one article were Kutcher investments. “If you’re out there promoting individual products that you have a specific investment in, it needs to be disclosed… If you have a significant economic investment that is not otherwise apparent, that may potentially affect the credibility of your endorsement, and I see that as a potential problem.” The FTC has made a priority out of online conflicts of interest.
It’s also possible Kutcher violated SEC rules. You’re not supposed to promote a company you partly own—say, in a magazine—if you know it’s soon to go public. And if a company’s shares trade on private secondary markets you must abide by federal rules on deceptive marketing, which a former SEC lawyer told the Times were “very broad… These rules apply any time there is a securities transaction.”
<sarcasm>You see, in the land of the free—where the government’s founding charter says it “shall make no law … abridging the freedom of speech”—you can’t just say any old stuff you want to in a magazine! Say things that help your business interests too much and you are obviously outside of what the quaint old Constitution says. The First Amendment is fuzzy on this. “[M]ake no law” might mean “make a law if you have a good reason.” Duh, Ashton! You’re pretty, but maybe not very smart, saying what you want in the United States of America.</sarcasm>
This episode itself illustrates why “make no law” works despite the fact that it allows sharp business practices. Gawker and other media outlets are actively curing any information deficit with plainly worded articles like “Ashton Kutcher Is a Massive Whore.” This is in aid of the caveat emptor rule, which works even better when people know they need to think for themselves and look for assistance from outlets like Gawker, of which there are an endless supply thanks to the Internet.
Caveat supplicantem if you think that the government is going to protect your interests as a consumer better than you can. Not even close. So there is no good reason for overturning the First Amendment here.
An Intended Consequence
The New Republic has an interesting article explaining “How Campaign Finance Laws Made the British Press so Powerful.” Basically, only British newspapers are free of regulations that suppress political speech. The author suggests adding more controls (including content restrictions) on the British newspapers to enforce “impartial” coverage. In other words, the media should be just as repressed as everyone else, and political leaders should be free of criticism.
Like many others, I have long thought that U.S. newspapers editorialize in favor of campaign finance restrictions to control competing speech and thereby become more powerful. After Citizens United, other organizations now enjoy the same First Amendment protections as media corporations like The New York Times and The Washington Post. No doubt that does mean such corporations are less powerful than they would be if campaign finance laws suppressed political speech that competes with their editorials and news reports. However, such competition is good for voters.
The First in a Long Series
The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.
The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”
But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.
Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.
The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.
But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”
It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?
The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.
Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.
Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.
Epic Win for First Amendment in Violent Videogame Case
The Supreme Court scored an epic win for the First Amendment in striking down California’s prohibition on selling violent videogames to minors. The law was both overly broad—sweeping in a wide variety of games based on no objective standard and no age-based gradations—and underinclusive—with no restrictions on other types of media. With a few strictly drawn exceptions for historically unprotected speech—obscenity, incitement, fighting words—government lacks the power to restrict expression simply because of its content. And a legislature cannot create new types of unprotected speech simply by weighing its purported social costs against its alleged value.
“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Justice Scalia points out in his majority opinion. “But these cultural and intellectual differences are not constitutional ones.”
Moreover, the Court, citing Cato’s amicus brief, described how each generation’s new media produces consternation from adults who want to avoid the “seduction of the innocent” (to borrow a phrase from the attack on comic books in the 1950s). In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. Later, Congress held hearings on the cartoon menace, which prompted the comic book industry to voluntarily adopt a ratings system. Backlash against certain kinds of movies and music caused those respective industries also to adopt voluntary ratings systems. And the videogame industry too adopted an effective and responsive ratings system after congressional hearings in the early ‘90s. Not only is all this hand-wringing overwrought, but self-regulation and parental oversight have worked—evidence from the Federal Trade Commission shows that the voluntary ratings system works more effectively with videogames than with any other medium—and they avoid First Amendment thickets. Adding a level of governmental control, even if were constitutional, would be counterproductive.
Here’s the Court’s opinion in Brown v. Entertainment Merchants Association (Cato’s brief is cited on pages 9-10).
Defending Anonymous Speech
For some time now, the U.S. Supreme Court has placed little weight on the value of anonymous speech, especially in the campaign finance context. True, in McIntyre v. Ohio Elections Commission (1995), the Court struck down a state law prohibiting distributing anonymous campaign literature. But from Buckley v. Valeo (1976) onward, the Court has looked favorably on disclosure of campaign spending. Even Citizens United saw only one justice, Clarence Thomas, speak out in favor of anonymous speech.
Long-time First Amendment advocate Nat Hentoff raises some questions about limiting anonymous speech in this video. He praises Justice Thomas and recalls the importance of anonymous speech during the founding era.
Government Control of Language and Other Protocols
It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.
Sure, laugh at the French. But not for too long. The United States has similarly busy-bodied regulators, who, for example, have primly regulated such advertising themselves. American regulators carefully oversee non-secret advertising, too. Our government nannies equal the French in usurping parents’ decisions about children’s access to media. And the Federal Communications Commission endlessly plays footsie with speech regulation.
In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.
So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.
The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.
So laugh at France. But don’t laugh too hard. Leave the smugness to them.
Due Process Stops at the Campus Gates?
People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation. As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:
If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.
As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:
Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.
Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team. Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence. It is no more just for an innocent person to be smeared and forever tarnished — if not convicted and imprisoned – than it is to let a guilty man go free. Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.”
What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:
California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”
This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:
By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.
FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy.
The Department of Education needs to rescind/clarify this mess. Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.
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