Cross-posted from Justia's Verdict.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year's blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called "ministerial exception" enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court's Recognition of a "Ministerial Exception" to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of "minister" for these purposes.  The Court began with a brief history of the Constitution's religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church's hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these "quintessentially religious controversies," the Court reminded, is "strictly a matter of ecclesiastical government" that is committed to "the highest ecclesiastical tribunals" and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a "ministerial exception" to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, "is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world."  All of the Seminary's degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  "Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty."

In 2009, after the nation's financial crisis hit LTS's endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant's employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant's request for review) rejected Kant's lawsuit on two separate but related grounds.  First, the court held that the case "involved an ecclesiastical matter" that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion "becomes the majority with my concurrence" and also commented in his opinion that LTS's restructuring "is an ecclesiastical matter over which no civil court has subject matter jurisdiction."  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court's ruling goes significantly beyond the Supreme Court's ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The "Ecclesiastical Matters" Rule Barring Judicial Resolution

Let us first consider the Kentucky court's decision that it could not weigh in on Kant's contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says "Kant's claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS's decision making as to who will teach its students-all of whom attend there with a desire to become pastors or ministers-would be an inquiry into an ecclesiastical matter by this Court."

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant's breach of contract claims require interpreting the promises-and the limits on those promises-made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary's gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  "In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y."  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid-the desire to spend the money on other religious-instruction-related programs-is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into "the rationale for LTS' decisionmaking" as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court's invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The "Ministerial Exception"

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing-Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary-as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education-leans in LTS's favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly "express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract" [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise."  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless-and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims-simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so-and how far the exception should reach-is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS-"teaching students who desired to become involved in Christian ministry."   As the court noted, "[b]ecause Kant's primary duties involved teaching religious-themed courses at a seminary," he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court's approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the "formal title" of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain "functions . . .  performed for the Church."  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing "to see any relevance in the fact that Perich was a commissioned minister."   As the Court observed, "the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee's position."  And yet the Kant court all but ignored the fact that Mr. Kant is not-and could not be, since he is openly Jewish-considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function-and not just titles or status-should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don't use commissions or ordinations or titles of ministers; thus, their opinion needn't be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

Cross-posted from Justia's Verdict.

In my column this week, I explore an important First Amendment free speech ruling handed down at the end of December by the California Supreme Court.  The case, Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, is significant because: (1) it involves a dispute over some fundamental but complex First Amendment doctrinal principles; (2) it conflicts with a case from the United States Court of Appeals for the District of Columbia Circuit; and (3) (for reasons 1 and 2), it may very well end up in the United States Supreme Court.

At issue in Ralphs was an attempt by a supermarket owner to enlist the aid of a state court to enjoin (that is, judicially order) a labor union to stop picketing on the privately owned sidewalk in front of the consumer entrance to the store.  Among the various defenses the union raised were two (similar) California statutes that specifically prohibit state courts from enjoining peaceful labor picketing, but not other kinds of picketing activity.  (For simplicity’s sake, I will focus on just one of the two statutes, the so-called Moscone Act.)  The grocery store’s reply was that the Moscone Act, because it singles out labor picketing in particular for special protection, discriminates among speech activities on the basis of the “content” or subject-matter of the speech, and therefore is invalid under the First Amendment. Therefore, the Act cannot bar what would otherwise be a well-founded request for injunctive relief. The California Court of Appeal agreed with this argument and found the Moscone Act’s special protection for labor picketing invalid and thus inapplicable.

The Reasoning of the California Supreme Court

But last month, the California Supreme Court reversed, and, by a 6-1 vote, upheld the Moscone Act, and thus the ability of the union to picket outside the Ralphs store.  The California Justices in the majority reasoned that the two U.S. Supreme Court cases striking down content-based laws that had protected labor picketing – the two cases on which Ralphs relied – were “distinguishable,” that is, not controlling as to the outcome of the case at hand.  In Police Department of Chicago v. Mosley (1972), the U.S. Supreme Court struck down altogether an ordinance that prohibited picketing near schools while the schools were in session, but that exempted from its prohibition peaceful picketing regarding school labor disputes.  Then, eight years later, in Carey v. Brown, the Court invalidated an Illinois statute that made it illegal to engage in picketing in residential neighborhoods, but that (like the law in Mosley) contained an exception for labor picketing.  In each of these two cases, the U.S. Supreme Court said that the problem with the law was that it singled out one kind of picketing based on its content – labor picketing – and that such content-based discrimination violated the Constitution.

The California Supreme Court, in ruling for the union in the Ralphs case, argued that the situations presented in Mosley and Carey were different from those raised by the Ralphs dispute, in a few important ways.

First, the laws in Mosley and Carey were laws that prohibited speech activity (picketing) with an exception, whereas the Moscone Act doesn’t prohibit any speech activity—it merely prohibits judges from interfering with speech activity.

Second, and relatedly, invalidating the laws at issue in Mosley and Carey had the effect of generating more, rather than less, expressive activity, because invalidating the general prohibitions in picketing in those cases meant that everyone—not just labor unions—could picket. By contrast, if the Moscone Act were to be invalidated, the result would be that no one — neither labor unions nor anyone else—would be free from judicial injunctions that limited their picketing.  So striking down the Moscone Act, unlike striking down the laws in Mosley and Carey, would produce no additional speech.

Third, the California Supreme Court said, the picketing at issue in Mosley and Carey was taking place on public property, whereas the picketing at issue in Ralphs was occurring on private property. As the California Supreme Court reasoned: “Because here the walkway in front of the [Ralphs] store is not a First Amendment public forum, the holdings in Mosley and Carey do not apply.”

A Critique of the California Supreme Court’s Analysis

Each of these “distinctions” of the precedents set by Mosley and Carey is open to serious question.

The first two related notions invoked by the California Supreme Court—that the laws in Mosley and Carey were prohibitions on picketing with labor exceptions, rather than affirmative protections of labor picketing, and that, as a result, striking down those laws would lead to more, rather than less, picketing activity—are really a function not of First Amendment analysis (as the California Supreme Court wrongly suggests) but, instead, of how the laws in question were drafted.

Suppose, for example, that the Moscone Act were codified in California’s trespass law provisions:  “Courts can enjoin all trespass activities including expressive trespass activities, but may not enjoin labor picketing even when it involves trespass.”  That law, like the ones at issue in Mosley and Carey, would take the form of a “general prohibition” (of trespass), with a specific exemption.  And striking down that law would lead to more expressive (trespass) activities, but I doubt that the California Supreme Court would (or should) strike it down.

We can see the same basic point if we look at what lawyers call “severability” analysis.  (Severability analysis focuses on what a court does when it finds some aspect of a law unconstitutional—does it throw out the whole law, or just the part that is constitutionally problematic?)  In Mosley and Carey, the Court threw out the entirety of both laws (and thus freed up everyone to engage in picketing), but it did so only because each plaintiff challenged the law on its face (as opposed to challenging specific applications), and because the legislature did not make clear up front that if the labor exception were unconstitutional, then its preference would be to bar all picketing, even labor picketing.  Suppose the Illinois legislature had specifically stated the following in its statute:  “If the labor exception is problematic under the First Amendment, courts should simply ignore that exception and enforce the ban on all residential picketing.”  The U.S. Supreme Court still would have invalidated the labor exception, and the result would have been to allow less, not more, picketing activity than had existed before the statute was passed.

Indeed, that is exactly what happened in another case decided after Carey v. Brown. In Frisby v. Shultz, (1988), the town of Brookfield, Wisconsin wanted to ban residential picketing except for labor picketing.  But they realized that the exception for labor picketing would be problematic under Carey, so they revised their ordinance to ban all residential picketing, including labor picketing.  Their willingness to restrict more, rather than less, speech in order to remain content-neutral surely would not be a reason to permit the Town to stick with its first law, which had an exception for labor picketing; even though we know that Brookfield is willing to ban all picketing if need be, we would not let it exempt labor picketing from its ban any more easily than could the State of Illinois in the Carey case.

Importantly, none of what I have said thus far denies that judicial skepticism of content-based laws may very well—in the big picture—lead legislatures to pass fewer speech-restrictive laws, because legislatures can no longer provide content-based exemptions to politically powerful groups who would, absent the exemptions, block the laws from being enacted.  Without the device of content-based exemptions, legislatures will (as occurred in Mosley and Carey) often decide not to restrict anyone’s speech.  But that doesn’t mean that courts should be skeptical of content-based laws only when they suspect that such a political dynamic is afoot.  (Indeed, as noted above, in Frisby, the legislature decided that if it couldn’t exempt labor picketing from its ban on residential picketing, it would then simply ban all residential picketing without exception.)  Judicial doctrine is built around bright-line rules that courts must apply generally, because they make sense in the main.  And so courts can and should generally be dubious about nearly all content-based regulations of speech.

Perhaps an example will help drive these points home.  Suppose California passed a law that said:  “California courts, notwithstanding any other powers they enjoy, may not enjoin abortion-related picketing.”  That law, like the Moscone Act, would not take the form of a general prohibition on picketing, but rather only of a specific protection of some picketing.  And striking down that law would result in less, not more, picketing activity.  And yet could anyone doubt that that law would be considered a problematic content-based favoritism of abortion-protest speech?  Clearly, such a law would be struck down, even (I expect) by the California Supreme Court.

This hypothetical also undermines the California Supreme Court’s suggestion that Mosley and Carey were distinguishable because the picketing in those cases took place on public property.  In my hypothetical, the abortion picketing being specially protected is occurring on private property, and yet the skepticism of content-based favoritism would still doom the law.  More generally, it is not clear why the doctrine regarding content-based laws should be more lenient when the laws regulate speech on private property, and the California Supreme Court offers no explanation of why the public-fora settings in Mosley and Carey should be understood as crucial to the results in those cases.

A Better Defense of the Result in the Ralphs Case

Notwithstanding the difficulties with parts of its analysis, the California Supreme Court did, I think, reach the right result in Ralphs.  Why is the Moscone Act permissible under the First Amendment notwithstanding that it singles out labor picketing in particular?  My answer is that the regulation of labor activity in laws like the Moscone Act is not best understood as regulation of speech at all, but rather as part of a comprehensive legislative scheme regulating the economic system of labor-employment relations.  In other words, protections for labor picketing are just one small part of a complicated system of regulating the economic relationship between unions and employers—a system that is best characterized as a regulation of economic activity that has incidental effects on certain speech activities.  The text of the Moscone Act itself conveys this character, making clear that the limit on judicial injunctions is imposed “in order to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining. . . .”

The First Amendment often allows incidental regulation of speech as part of a larger regulation of what is properly deemed economic activity.  The regulation of persons who work in the professions (a subject of a recent column Alan Brownstein and I wrote) is one example.  A government law telling lawyers (if they want to remain licensed) that they can’t recommend that their clients violate the law can, from one angle, be seen as regulating their speech on the basis of its content (indeed, viewpoint).  Yet it is not a speech regulation that troubles us.  Another example of incidental effects on speech as part of a larger regulation of economic activity is the Rumsfeld v. FAIR ruling allowing the federal government to require law schools to provide access for military employers (also the subject of a column I co-wrote with Alan Brownstein).  While, in general, people are free not to be forced to allow the government to speak on their property, when the government speech at issue is part of an effort to hire employees, and where the property at issue is a space dedicated to interviewing employers, the First Amendment concerns are lessened.  And there are many other examples of regulations of commercial activity having permissible, incidental effects on expression (including cases permitting the government to require companies to pay into funds that will be used for generic advertising of the industry’s products.)

The crux of the matter is that the Moscone Act (like its counterparts in federal law) does treat labor picketing and other organizing activity specially, but only as a part of a larger system of regulation in which labor unions and employers are both heavily regulated, with an eye to producing a fair system of economic allocation; it is not a governmental effort to interfere with the “marketplace of ideas” by favoring some subjects or viewpoints and disfavoring others (the traditional reason why content- and viewpoint-based laws are problematic) so much as a regulation of the marketplace of labor.  Importantly, neither the law at issue in Mosley nor the law at issue in Carey was part of a comprehensive system of labor-relations regulation, and thus neither law could partake of this defense.  Instead, these laws were best seen as a kind of favoritism for labor unions, or as a necessary appeasement to labor unions to get the laws enacted in the first place.  Both such scenarios, however, are problematic under First Amendment principles.

To be fair, I should say that the California Supreme Court did mention (without fully developing) this larger labor-relations-regulation framework and the federal labor law counterpart.  And one Justice (Goodwin Liu, joined by Justice Werdegar) wrote a nuanced concurrence in which he made an argument very similar to the one I make in the preceding three paragraphs.  But even Justices Liu and Werdegar joined onto the majority opinion, the primary thrust of which was to distinguish Mosley and Carey in the unpersuasive and formalistic ways that I discussed above.

In any event, the California Supreme Court did acknowledge that the U.S. Court of Appeals for the D.C. Circuit, in a case decided nine years ago, Waremart Foods v. N.L.R.B. (2004), seemed to come out the other way, and to call into question the Moscone Act because it was impermissibly content-based.  Such a split between what is clearly the most important State Supreme Court and what is (arguably) the most important federal court of appeals may very well be of interest to the U.S. Supreme Court in the coming months and years.

Co-authored with Professor Alan Brownstein and cross-posted from Justia's Verdict.

In the space below, we explore some very interesting and complex First Amendment issues that are implicated in a recent lawsuit in Texas. The suit was brought by a group of public high school (Kuntze High School) cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games.  The district barred the religious banners, through which the football players had run as they came onto the field, after complaints by The Freedom From Religion Foundation that the practice of displaying such banners at football games of a public high school violates the Establishment Clause of the First Amendment.

The cheerleaders who filed suit seeking to continue the practice claim not only that the Establishment Clause does not forbid what they are doing, but also that that they have a First Amendment right themselves, under the Free Speech Clause, to continue to display the banners.  The case is set for trial next year, but in the meantime, a Texas state court judge last month granted preliminary relief in favor of the cheerleaders, directing the school district to permit the cheerleaders to display the banners, because of his view that the cheerleaders will likely prevail on their claims when the case is fully resolved.  As we explain below, we think—in light of the facts that are alleged by the cheerleaders in their Complaint—that under existing Supreme Court case law, both the Establishment Clause and the Free Speech Clause of the First Amendment cut against the cheerleaders in this case.  (We should make clear that although some of the current Justices might disagree with the case law currently on the books, we analyze the cheerleaders’ dispute under current doctrine that is binding on lower courts and litigants.)

The Establishment Clause Analysis

Our starting point is that if the school officials themselves had decided—or had directed the cheerleaders—to use banners that included religious messages, this would violate the Establishment Clause.  It seems pretty clear under current case law that such state action would be unconstitutional.

But the cheerleaders (supported by positions adopted by Governor Rick Perry and the Texas Attorney General) argue that this situation is different, because the banners constitute private speech on behalf of the cheerleaders that is not attributed to the school.  Under the selection procedures used by Kuntze High School, cheerleaders are not selected by school officials, but rather are chosen, after tryouts, by a panel of (Lamar) University cheerleaders.

According to the allegations in the Complaint, Kuntze cheerleaders decide what goes on the banners; there is no control exercised by school employees over the content of the displays.  Moreover, the banners are paid for by cheerleaders, using money that comes from private sources, rather than public school funding.  And the school district regulations identify activities such as banner displays at football games as a limited public forum, suggesting that the school is permitting individual students to speak, but not associating itself with the messages students express.

Even in light of these facts, we think the cheerleaders’ display of bible-verse-bearing banners raises serious Establishment Clause problems.  A high school football games is a quintessential traditional school-sponsored activity, and providing banners for the players to run through is a part of that school-sponsored activity.  For that reason, to any objective outside observer, the cheerleaders and the banners they display bear the imprimatur of the school.  In a case (Hazelwood) permitting public high school officials to censor high school newspaper articles—even though the articles bore the bylines of individual student authors—the Supreme Court reasoned that school-sponsored activities implicate government promotion of speech, rather than just the toleration of speech.  As a result, even if the school disclaims any approval of a student’s message, the overall public imprimatur remains.

Putting a disclaimer on the school newspaper doesn’t change its status as a school-sponsored activity any more than a one-paragraph disclaimer can transform high school football games from school-sponsored activities into private events.  Although the high school newspaper could be considered to be part of the school’s curriculum, which creates an even greater imprimatur of school support– and football games are less easily characterized as part of the school curriculum—we think the analogy has some force.

What about the fact that the school does not pay for the banners?  We think that under existing case law, the private nature of the funding of religious displays does not necessarily control the Establishment Clause analysis. The key point is that the religious message is displayed on public property during a school-sponsored event, a football game.  Cases involving the prominent display on public property of privately created nativity scenes (such as the Allegheny County case) demonstrate that private religious displays, standing alone on public property, can violate the Establishment Clause.  Given the sensitivity in the case law to religious coercion and endorsement in the context of public schools, the possibility of an Establishment Clause violation might be even stronger here than it was in cases like Allegheny County—which involved a crèche in the foyer of a public building used for conventional governmental purposes.

Another key factor to be considered under the Supreme Court’s cases is the extent to which other students might be made to feel unwelcome because religious banners are displayed as part of the organized, pre-game activities.  Santa Fe Ind. Sch. Dist. v. Doe (a case forbidding a high school from permitting a student-elected Chaplain to lead a prayer at a high school football game) makes clear that football games are school-sponsored activities that are important to many students, and that it is not permissible to force students to have to choose between attending games or being exposed to unwelcome religious displays or messages.

When we widen the constitutional focus to locate Establishment Clause disputes in a larger perspective, we readily see that a government’s decision to delegate authority to private individuals as to what messages will be permitted at publicly sponsored events cannot reasonably be understood to avoid constitutional constraints. This would be obvious if we were talking about delegating authority that did not focus on expression. Suppose, for instance, that a school delegated authority to a student committee to decide where graduates sit on graduation day, and the committee decided that all the black graduates should sit in the back of the auditorium.  No one could deny that this would violate the Equal Protection Clause, even though the individual students on the committee, not school officials, made the discriminatory decision.

And the same reasoning often applies to decisions about who gets to speak and what they can say.  Kuntze High School is alleged to have delegated its authority to decide what messages are communicated on the banners the players will run through to enter the field at school football games to the high school cheerleaders. And it also seems that the very decision about which students get to be cheerleaders in the first place is delegated to cheerleaders from Lamar University.  But the school can’t escape constitutional responsibility for its decisions by giving authority over school-sponsored expressive activity to a private group of students or anyone else.

This almost has to be true if we care about safeguarding Establishment Clause values. If a school can delegate authority to student groups with regard to these kinds of activities and avoid constitutional review, then the cheerleaders could decide to lead the students at football games in prayers, rather than school cheers (and the Supreme Court’s decision in Santa Fe v. Doe clearly forbids that). Or the school could delegate to a student group the authority to decide upon whatever banners the group’s members want to hang on the interior walls of the school building.

If the student group decided to hang 30’ by 10’ banners proclaiming sectarian messages on the walls of the school building, would we say there would be no Establishment Clause violation here either, simply because the school had delegated its authority to students, rather than exercised its power directly? The Court rejected this kind of an argument in Santa Fe v. Doe when it held that a public high school could not avoid Establishment Clause requirements by ceding the power to decide whether or not to have a prayer at school football games to the student body.

Free Speech Analysis

But what about the free speech rights of the cheerleaders?  Plaintiffs argue that because the speech on the banners is not attributable to the school, it is private speech protected by the Free Speech Clause of the First Amendment. They thus suggest that they have a constitutional right to control the content of these banners free from government interference. They argue that the school has the authority to permit them to display their banners at the football game for the football players to run through, and that once the school does so, the Constitution protects them against regulations that would restrict the content of what they say.

The key problem with this argument is that even if we assume for purposes of argument that plaintiffs are correct that they are engaged in private speech (not attributable to the school), the school has not opened up its property (the football field) for expression by any other students. No one else besides the cheerleaders gets to place their banners in front of the football players entering the field; only the high school cheerleaders get access to this location for whatever expressive message they choose to communicate or facilitate.  This kind of selective control of, and access to, public property for private expressive purposes is constitutionally problematic.

Let us be clear:  This is not a situation in which the school here is passively opening up a public location and event to allow various private speakers to express their various messages.  Instead, the school (under plaintiffs’ argument) is authorizing a single private group, the cheerleaders, to decide (presumably by majority vote, although that is not clear) what messages get expressed on specific public property, without any guidance to limit the discretion they exercise in making such decisions.  No one gets access to have their message expressed on banners that the team will run through without the cheerleaders’ permission. The cheerleaders have complete discretionary control over the messages that may be communicated on banners leading the team in each and every football game.  The cheerleaders can express sectarian messages of only one faith while rejecting suggestions of messages of other faiths. They can embrace the virtues of one race and denigrate the worth of others.  They can express political messages for particular parties or candidates while rejecting messages from competing candidates or parties. They can adopt suggestions from their parents, friends, or pastors while ignoring messages proposed by people whose views they find objectionable.

This kind of unbridled latitude given to a select group of private citizens but denied to others to use public property resources for expressive purposes is inconsistent with free speech values and, indeed, quite possibly itself would violate the Free Speech Clause.  In other words, far from creating a free speech First Amendment right on the part of the cheerleaders, the school’s actions (under the cheerleaders’ characterization of them) here might themselves create a violation of the Free Speech Clause.

The Supreme Court has made it clear in Lakewood v. Plain Dealer Publishing Co. that giving unbridled discretion to government officials to decide who gets to speak in a public forum (limited or otherwise) is unconstitutional, because doing so raises “the specter of content and viewpoint discrimination.” That danger isn’t meaningfully avoided when government confers unbridled discretion to decide what messages are permitted to be expressed on public property upon a private group, rather than upon a government official.

Indeed, to return to the Establishment Clause, this is precisely the kind of unbridled discretion given to select private individuals that the Court rejected in Santa Fe v. Doe.  Giving the majority of the cheerleader squad the authority to determine whether scripture is displayed on banners, or prayers are offered before games, isn’t substantively different from allowing the majority of students to vote on whether a prayer will be offered at football games, the policy struck down in Santa Fe.  Reducing the number of students who get to make the decision doesn’t eliminate (and indeed may increase) the danger that minority viewpoints can (indeed, are likely to) be ignored by the students who are given the authority to determine what messages will be communicated.

Nor should it make any difference whether the group making the decision is selected on the basis of cheerleader athletic skills, or some other characteristic such as school spirit or how loud the students can yell. What is problematic about giving one group of private individuals the discretionary authority to decide what messages will be expressed on public property is that they may exercise that authority in content- and viewpoint-discriminatory ways.

Assessing The Two Clauses of the First Amendment Together

Of course, the school might avoid the restrictions imposed by the Free Speech Clause that we just described by accepting responsibility for the cheerleaders’ banners. Even though government cannot give unbridled discretion to a group of private individuals to control speech on public property, government can engage in its own speech, and in so doing necessarily engages in content or viewpoint discrimination when it expresses or sponsors its own message. The Free Speech Clause does not limit the state’s discretion to express its own messages on public property.

But if the school accepts responsibility for the religious messages on the banners, then it endorses religion in violation of the Establishment Clause principles that we described earlier.  And if (as the cheerleaders argue) the school has no constitutional responsibility for the messages on the banners (a proposition which we find less than convincing) then, in any event, the school would be seen as providing one group of private students discretionary control over access to public property for only those messages that the group favors. Giving that kind of discretionary, long-term control over access to public property to any private group undermines our constitutional commitments to open access to public property for minorities, religious or otherwise.

So under either characterization, it seems the only way for the school to obey the Constitution is to prohibit the religious display, which is why we think the cheerleaders could very likely lose their lawsuit if and when it winds its way up the appellate ladder.

Co-authored by Professor Alan E. Brownstein and cross-posted from verdict.justia.com.

California Governor Jerry Brown last week signed into law a measure that regulates demonstrations near funerals in order to protect the peace and privacy of grieving families and other mourners.  In the space below, we analyze this law and seemingly similar measures that have been adopted at the federal level and in other states to determine when protecting mourners is, or is not, compatible with the First Amendment.

The Background of the Funeral Demonstration Law:  The Westboro Baptist Church and the Snyder Ruling

Funerals may seem to be unlikely venues for demonstrations, but funeral protests have been in the news frequently in recent years, thanks largely to the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of hundreds of funerals, often military funerals, in order to decry, among other things, the extent to which America is tolerant of homosexuality.  The activities of the Westboro church led directly to the Supreme Court’s 2011 Snyder v. Phelps ruling, the Court’s most elaborate discussion of the interplay between the rights of demonstrators and the interests of mourners at funerals.

In Snyder, the father of a Marine killed in Iraq obtained a multi-million dollar intentional infliction of emotional distress jury verdict based on picketing—in three public locations not far from his son’s funeral—by Westboro members. The picketers held up signs expressing messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The Supreme Court, by an 8-1 vote (with Justice Alito dissenting), overturned the jury award, in an opinion by Chief Justice Roberts that provided free speech protection to the picketers in a “narrow” holding “limited by the particular facts before us.” These controlling facts included the following:

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. . . . That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. . . . The . . . picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. . . . The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder [, the father bringing suit,] testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.

Under these very particular circumstances, the Court upheld the rights of the demonstrators, observing that “[w]hether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. . . . The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern.’ …  While [the] messages [on the placards] may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.”

As we have argued in an article in the Cardozo Law Review En Banc (some of which we build on here), we believe that the Court was wrong to focus so much on the question of whether the content of the demonstrators’ speech constituted a matter of public or private concern.  For us, other factors should have done the lion’s share of the analytic work in this case.  The location of the expression was about 1000 feet from the funeral service.  The demonstrators’ message was neither seen by, nor visible to, the mourners when they entered or left the church where the service was held.  The protestors complied with police directions as to where they could stand and hold their signs.  The protest was directed to the public at large.  This was public discourse, not speech exclusively, or even primarily, directed at a target audience.

Since these conditions were satisfied, it is not clear to us that the question of whether the picketers’ speech related to a matter of public or private concern should be relevant in this kind of a case.  To see this point, consider a situation in which a speaker strongly dislikes one of his colleagues at work.  The speaker stands on a soapbox in a public park, and states that his colleague is a horrible person who should be sent to hell when he dies.  This is mean-spirited private speech, but as long as it isn’t defamatory, we would think that it is constitutionally protected—at least if it is addressed to a public audience and expressed in a location some distance away from the place where the maligned colleague lives and works.

Conversely, consider a situation in which members of the Westboro church placed telephone calls to the home of the parents of a soldier killed in the line of duty immediately before and after the funeral service for their son or daughter.  Assume that, in their phone calls, church members expressed precisely the same messages that were on the signs in the Snyder v. Phelps case—messages that the Supreme Court has characterized as addressing a matter of public concern.  We think there is a strong argument that such calls could be sanctioned as telephone harassment.

In a similar vein, the anti-abortion messages communicated by residential picketers in the 1988 case of Frisby v. Schultz also addressed a matter of public concern.  Yet the picketers’ expressive activity there could be restricted, the Court held, because it “inherently and offensively intrude[d] on residential privacy” and had a “devastating effect . . . on the quiet enjoyment of the home.”

Thus, in specific cases, the facts as to when, where, and how speech is communicated may be more important to determining whether the speech can be restricted or subject to penalty than is the determination that the speech is a matter of public or private concern.  But by emphasizing that the military/public policy content of the speech is what compels its protection in Snyder, the Court has gotten us onto the wrong analytic track, in a way that might confuse legislatures and lower courts.

To its credit, the Snyder Court did observe that the demonstrators’ “choice of where and when to conduct . . . picketing is not beyond the Government’s regulatory reach—it is ‘subject to reasonable time, place or manner restrictions’ that are consistent with the standards announced in this Court’s precedents.”  Somewhat confusingly, though, the Court went on to say that it had “no occasion to consider how [such a law] might apply to facts such as those before us . . .,” suggesting that perhaps content-neutral time, place, and manner laws could prohibit the very conduct at issue in Snyder, something we don’t think would be permitted under the Court’s time, place, and manner jurisprudence.  But at least the Court did seem to invite legislatures to adopt reasonable regulations that might pass muster.

The California Law That Takes Up the Court’s Invitation to Regulate in This Area

California acted on the Snyder Court’s invitation last week.  This action followed closely on the heels of a federal law, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, signed by President Obama in August.  Since (and even well before) Snyder, a number of states have adopted similar legislation.

How will these types of laws fare in court? To answer that, let us begin by describing in more detail what the California law does.  The new law makes it a California crime to engage in “picketing” on public property within 300 feet of a burial site, mortuary, or place of worship when the picketing is “targeted at” a funeral during a period of time beginning one hour prior to the funeral and ending one hour after the conclusion of the funeral.

What would, or should, the Supreme Court think of this particular law?  We note that a few such statutes have been evaluated by federal courts of appeals even before Snyder, with some mixed results.  For example, in Phelps-Roper v. Strickland, the U.S. Court of Appeals for the Sixth Circuit upheld an Ohio statute regulating demonstration activities that take place near funerals shortly before, during or shortly after the funeral activities, reasoning that the statute was content-neutral, served significant interests in protecting funeral attendees, was narrowly tailored, and left open adequate alternative avenues of speech.  Just a few months later, however, the U.S. Court of Appeals for the Eighth Circuit, in Phelps-Roper v. Nixon, came out the other way, reversing a district court’s decision to deny a preliminary injunction banning enforcement of a similar statute in Missouri. The Eighth Circuit explicitly disagreed with the Sixth Circuit about both the weight of the government’s interest, and the extent to which that interest would outweigh free speech claims.

Two Key Questions: How Much Space Can Government Insulate From Demonstrations, and for How Long?

One contentious issue regarding the constitutionality of these kinds of laws relates to the size of the zone around a funeral home, house of worship, or cemetery from which demonstrators and pickets may be excluded.  While some laws create buffer zones of as little as 100 feet, many statutes provide for much larger zones, some even extending up to 1000 feet.  (California’s law uses a distance of 300 feet, and the federal law uses distances of 300 and 500 feet.) The law restricting residential picketing that was upheld in Frisby applied only to persons standing directly in front of their target’s home, and would not have barred holding up signs even 50 feet away.  While cases involving medical clinic demonstrations might provide useful analogies, it is hard to draw comparisons with medical clinic buffer zones because very few states have adopted statutes creating such zones.  Certainly, no court has upheld a buffer zone around a clinic that is as large as some of the funeral buffer zones that many states have enacted into law.

Substantial arguments can be offered to justify the imposition of larger “No picketing or demonstrating” zones around ongoing funeral services than those that have been upheld around residences or medical clinics. The most obvious distinction between limits on demonstrations during funerals, on one hand and restrictions on residential picketing or demonstrations at medical clinics, on the other, is the duration of the speech regulation. Residential picketing and demonstrating at medical clinics providing abortion services are directed at a specific location. Accordingly, laws limiting such demonstrations apply during the entire day or, in the context of clinics, at all times and days that the clinics are open and receiving patients.

In contrast, demonstrations at funerals are directed at events, not locations. Their focus is on particular funerals of particular—or at least particular kinds of—people, not the generic activity of funeral services and burials.  For this reason, the state’s interest in limiting such demonstrations is greatest during the funeral service itself, when the mourners are particularly vulnerable and captive to their overwhelming human need to memorialize and grieve for their dead.  Accordingly, laws regulating funeral demonstrations restrict speech at specific locations for only very limited periods of time.  (The California law protects the funeral and one additional hour on each end; the federal law protects the funeral and two additional hours on each end.) Demonstrators are at legal liberty to engage in their morally offensive expressive activity near a church, cemetery, or funeral home after the funeral service and its aftermath have concluded. Because of the relatively short duration of these speech restrictions, these laws burden considerably less speech than do the much longer-lasting speech regulations that were under review in the residential picketing and medical clinic demonstration cases.

Indeed, it may be the case that there is something of an inverse regulatory ratio here. To some extent, time may vary inversely with distance with regard to the constitutionality of “demonstration and picketing free” buffer zones.  Because a speech regulation of very limited duration provides ample alternative opportunity for expression in a particular location at other times, courts may provide the state with greater discretion in setting the physical parameters of short-term protected areas than they would if much longer-lasting restrictions on speech were at issue.

But is it really fair, in terms of vulnerability, to analogize funeral mourners to women seeking abortions or hospital patients receiving treatment? We think so. Indeed, we see a greater consensus, in the law and in society, about the vulnerability of mourners attending funerals than exists for almost any other group or circumstance. In particular, we see this most clearly in one special category of the tort of intentional infliction of emotional distress (the very tort that was at issue in Snyder v. Phelps) involving instances in which the defendant has knowledge that “the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress.” In this circumstance, conduct that would not otherwise be actionable may be the basis of civil liability and damages.

There are many examples of cases where courts have protected individuals with personal characteristics that rendered them uniquely vulnerable to emotional harm, or who were in situations that left them particularly exposed to such injuries.  Intentional infliction of emotional distress claims have gone forward in cases involving conduct directed at children, at a person recently released from the hospital, at a patient about to be X-rayed for a medical condition, at a former lover suffering from serious emotional and physical problems, at an employee suffering from severe depression, and at an immediate victim of domestic violence.  This list, moreover, is illustrative.  It is in no way intended to be exclusive, and we think funeralgoers could be comfortably added to it.  Indeed, the intentional infliction of emotional distress case law often recognizes the extreme and distinct vulnerability of people who are grieving in general.

Does the Particular Wording of the California Law at Issue Create Problems?

There is one additional feature of the California law that is worth discussing:  The law defines “picketing” (which is the activity being prohibited) as “protest activities.”  If “protest activities” means protesting government policies (as in the case of the Westboro folks), then the California bill loses its content-neutrality and indeed becomes a viewpoint-based law that discriminates against political dissenters, the kind of law that is most violative of the First Amendment.  As the majority opinion written by Justice Brennan in Texas v. Johnson in 1989, upholding the First Amendment claim of Gregory Johnson, who had been prosecuted for burning a flag observed: “Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.”

To the extent that “protest activities” is a code phrase that signals an effort and authority of the government to use the law to silence its critics, it violates the very essence of the First Amendment.  Notice that some of the other recently enacted funeral protection laws do not use the word “protest” and, in fact, do not use the word “picket,” but instead ban all “disturb[ance]” of or “interference” with funerals.  California’s use of the word “protest” could thus raise red flags.

But what if “protest” is understood not to mean disagreement with government policies, but rather disagreement with the sentiments of the funeralgoers?  After all, to be covered under the California law, one’s protest activities must be “targeted at a funeral,” which the statute says means that the activities must be “directed at or toward the deceased person or the attendees of the funeral.”  If “protest” connotes a dispute not with government but with the funeral attendees, is that problematic?

We think not.  Interestingly, we might concede that the law is viewpoint-based in the sense that folks who hold up signs lauding the deceased will not be considered to be picketing, while folks holding up signs criticizing him will, but we think that kind of viewpoint skew, which empowers not the government but the would-be listener, is not so troubling under the First Amendment, at least in cases involving targeted, as distinguished from publicly directed, speech.  (When the speech is not targeted at a particular person but rather is offered to the public more generally, then giving any would-be listener the power to suppress the speech because she disagrees with its message would be problematic; in those circumstances, the speech can be suppressed only if the harm it causes can be discerned without regard to the content of the message.)

But where targeted speech is involved, any generic law prohibiting things like disturbance, interference, or harassment will inevitably involve some consideration of the content and viewpoint of the message.  In all such situations, the listener is empowered to decide whether the speaker is—on account of the speaker’s message and actions—engaged in disturbing or harassing conduct:  If a listener agrees with, and wants to hear, a particular message, then that message cannot be considered a disturbance; if not, it could be held to violate a legal prohibition.  For example, a series of wake-up call requested by a hotel patron for every 5 minutes between 3:00 and 3:30 AM would not be telephone harassment since it was requested by the listener, even though an uninvited series of phone calls during that same timeframe could be subject to sanction.  Such a distinction empowers listeners to discriminate on the basis of viewpoint, to be sure, but empowering listeners to discriminate against speech targeting them personally is very different than empowering government to do so.

Co-authored with Professor Alan Brownstein.  Cross-posted from Justia.com.

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.

Cross-posted from Justia's Verdict.

The role of money in federal elections has never been more prominent than in this, the 2012 presidential, cycle.  It is thus quite natural that commentators these days would lavish attention on Citizens United v. Federal Election Commission, the 2010 blockbuster Supreme Court ruling saying that corporations and unions, just like individual persons, are entitled under the First Amendment to expend money to independently advocate in favor of or against candidates for elective office.

In this column, I look closely at a recent discussion of Citizens United provided by Jeffrey Toobin in The New Yorker. In the end, I conclude that while the story Toobin tells is elegant, fascinating and enlightening (as almost all of Toobin’s writing is), the analysis he offers does not fully work for me, or at least it requires a fair bit more explanation than he offers.

Background on the Citizens United Case

The Citizens United case arose under the federal McCain-Feingold campaign finance law, in which Congress tried to prohibit ads and other electioneering activities that advocate for or against any presidential candidate, that are paid for by corporate funds, and that run within 30 days of an election.  A nonprofit corporation called “Citizens United” had produced and readied for airing a cable TV video-on-demand documentary advocating against then-presidential-candidate Hillary Clinton shortly before a presidential primary.  The Federal Election Commission (FEC)—the federal agency charged with enforcement of federal election laws—ruled that the documentary movie amounted to “electioneering communication” and was thus covered under McCain-Feingold’s proscriptions.

The U.S. Court of Appeals for the D.C. Circuit agreed with the FEC, and the Citizens United organization went to the Supreme Court, arguing that the federal statute did not, and could not constitutionally, prohibit the airing of the documentary.  The case was first argued before the Supremes (with Republican loyalist and former Solicitor General Theodore Olson representing Citizens United) in March of 2009.  The federal government was represented by Deputy Solicitor General Malcolm Stewart.

More than three months after the argument, on June 29, the Justices, in an unusual move, decided not to resolve the case before their annual summer recess, but instead asked that the case be reargued the following Term (beginning in fall 2009), and that the parties focus this time on the larger questions of whether the differential treatment between corporations and individuals embodied in McCain-Feingold (and other campaign finance laws) was fundamentally inconsistent with the First Amendment, and whether past Court decisions upholding such differential treatment needed to be overruled.

The case was reargued in September 2009, and in early 2010 the Court issued its blockbuster 5-4 decision affording corporations the same First Amendment right as is enjoyed by individuals to make election-related express advocacy expenditures.

Toobin’s Take on Citizens United

Toobin, in his recent (May 21) New Yorker piece, “Money Unlimited,” provides a riveting backstory to the 2010 ruling.  A lawyer as well as a journalist, Toobin is a prominent translator of constitutional work product for lay audiences.  He has written books and dozens of articles discussing the Supreme Court, its cases, and its people.  Toobin generally does not advance or critique abstract legal theory or cutting-edge doctrinal approaches to interpreting and implementing the Constitution.  Instead, he seeks to make (and succeeds in making) legal concepts accessible to intelligent non-lawyers.  (It is because he is so successful and influential in this regard that what he writes deserves evaluation.)  In much of his work, Toobin emphasizes personal qualities and characteristics of the participants in legal episodes, and suggests how these qualities and characteristics can affect legal outcomes.  He also often explores the intellectual styles and modus operandi of decisionmakers in order to help readers make sense of the size and shape of the law.

It is thus not surprising that Toobin would tell the story of how Citizens United came to be by focusing on the personal strategic and leadership instincts of Chief Justice John Roberts, and on a dramatic (and what Toobin sees as a fundamentally game-changing) skirmish between the government’s lawyer in the first oral argument in the case, Malcolm Stewart, and the conservative Justices on the Court.

Toobin’s essay has many layers to it, but the basic suggestion he makes boils down to this:  The Citizens United case was on track to be resolved by the Court in a way that “might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law,” but that the first oral argument took the “case—and the law—in an entirely new direction,” and that, in particular, Mr. Stewart’s answer to one specific question was “an epic disaster” that “changed the case, and perhaps American history.”

Toobin’s strong implication (though he never quite says it this plainly) is that absent the transformational oral argument exchange between Mr. Stewart and the conservative Justices, the Court would likely have decided Citizens United simply by holding that the FEC and the D.C. Circuit were wrong in concluding that McCain-Feingold applied to the documentary in question; the case would thus have been resolved in terms of statutory interpretation (albeit statutory interpretation informed by the limits of the Constitution), rather than in terms of broad First Amendment first principles protecting corporations and other well-heeled interests.

But because of the fateful exchange, Toobin’s account goes, the five conservative Justices ended up reaching out and asking for new briefing and argument on the bigger constitutional issues that had theretofore been in the background.  According to Toobin, although the conservatives needed to go through the procedural hassle of waiting a year to make major constitutional change, the back-and-forth at Stewart’s oral argument set into motion the chain of events that led to a sweeping 2010 ruling in Citizens United, which in turn has opened the door to the huge infusion of money into the so-called “Super PACs” in this, the 2012, election.

What was this momentous Q & A in the first oral argument?  It was a series of queries about whether the ban on electioneering communications in McCain-Feingold could limit not just electronic media, but also books.

Justice Alito asked Stewart:  Could government limit a corporation from “providing [the same thing Citizens United provided in its documentary] in a book?  Would the Constitution permit the restriction of all those as well?”

Stewart’s response was straightforward:  “They [the limits on corporate-sponsored express advocacy pieces] could have been applied to additional media as well.”

Toobin argues that Stewart made a tactical blunder here.  According to Toobin, in the key part of his essay, “Stewart was wrong.  Congress could not ban a book.  McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life.  The influence of books operates in a completely different way.  Individuals have to make an affirmative choice to acquire and read a book.  Congress would have no reason, and no justification, to ban a book under the First Amendment.”

Assessing Toobin’s Account:  The Difficulty of His Proffered Distinction Between Books and Electronic Media

Before I explain my reaction to Toobin’s piece, let me disclose that I personally know both Toobin and Stewart.  I have met Toobin a few times, and I have exchanged a small number of emails with him.  I am a fan of his overall body of work, and I consider him a friendly acquaintance.  Mr. Stewart is someone I have known, worked with, and admired for over two decades.  He and I were classmates in law school and co-clerks in Justice Blackmun’s chambers, and I count him as a very close friend.  So while, in my discussion below, I try to analyze Toobin’s account as objectively as I possibly can, readers should be aware of potential blind spots on my part, as they think about the issues I discuss.

After digesting his essay, I remain somewhat unsatisfied by Toobin’s account in at least three ways.  Perhaps there are compelling answers to some or more of the questions I raise in these three respects, but I would need to hear them to be convinced.

First, the distinction Toobin draws between books containing advocacy (which he says cannot be regulated) and commercials that contain the same advocacy (which he suggests can be regulated) may not be easily workable in theory or in practice.

As to theory, are TV commercials really unavoidable (and for that reason regulable) in the way Toobin suggests?  Why can’t viewers change the channel or turn off the TV, just as they can decide not to purchase a book they see displayed in a bookstore window?  Putting aside truly “captive” audiences (e.g., passengers who use public transportation for their daily commute, etc.), why can’t we trust consumers of TV ads to self-screen just as we can trust consumers of books to do so?

And in practice, the line-drawing problems are formidable, perhaps even insurmountable.  If you can ban certain TV ads but not books, then what about TV ads promoting those books?  If you can ban TV ads, can you ban analogous newspaper ads?  If not, why not?  Newspaper ads are no more “avoidable” than are TV ads.  And if you can ban newspaper ads, what about pamphlets?  And if you can ban pamphlets but not books, when does a pamphlet become voluminous enough to become a book?  And what would we do with Internet ads and advocacy blogs that are financed by corporation money?

As a general matter, discriminating between different types of media has not been free from difficulty under First Amendment doctrine.  There are some older cases, most of which predate the information revolution, in which radio and TV are treated differently than print because the scarcity of airwaves historically has given government a freer hand. But that rationale has not easily been applied to cable entertainment (the context in which the Citizens United video was being offered).  More generally, airwave scarcity is not as tenable a justification for government regulation of electronic media as it once was.

The Second Problem with Toobin’s Analysis:  The Facts of the Citizens United Case Themselves

But let’s put aside the question whether, at some big-picture level, differentiation between books, on the one hand, and TV commercials, on the other, is permissible or required under the First Amendment.  There’s another serious problem here, too: On the facts of the Citizens United case, the answer that Toobin suggests that Stewart should have offered could easily have gotten him into more trouble than it might spare.

Why?  Because the Citizens United case did not involve a television commercial; it involved a feature-length 90-minute documentary movie that was available via on-demand cable!  Even if Toobin is onto something (and he may be) when he says there is a constitutionally significant difference between a 60-second TV spot “imposed” upon reluctant viewers and a book that would-be readers have to go buy or borrow in order to read, how is a 90-minute on-demand movie–that is, one that must be selected by viewers in order to be seen– any different than a book that, in Toobin’s own words, readers make an “affirmative choice to acquire and read”?  What I am saying here is that Stewart could not easily have proffered the answer Toobin suggests, because the very movie at issue in the case would have fallen on the wrong side of the constitutional line that Toobin wants to draw!

Had Stewart said, “Your Honors, books cannot be regulated because people can choose not to acquire and read them,” the Justices would have pounced on him and retorted, “Well, isn’t the same true of the 90-minute on-demand cable documentary the government seeks to regulate here?”  Perhaps Stewart could have done some fancy dancing about how Congress is entitled to draw broad categories that make general sense and then apply those categorical rules to particular instances in which the rationales for the categorical differentiation aren’t present, even in the First Amendment realm, and even where the constitutional claim challenges a particular statute’s application rather than the statute’s facial essence.  But the chances that such a tap dance would have succeeded seem exceedingly low.

In the end, then, Toobin’s gripe seems less with Stewart’s oral argument or with any of the answers Stewart gave there, but more with the government’s decision to apply McCain-Feingold in the context, not of a 60-second ad, but of a 90-minute on-demand cable movie, in the first place.

Perhaps there is a basis for criticism in the FEC’s decision to construe McCain-Feingold as applying to the documentary, and the DOJ’s strategic choice to support that decision (I express no view on those matters), but all of that was decided by the government when it decided to contest the lawsuit filed by Citizens United.  It was at that point that the die was cast, and if the conservative Justices were going to be angered by the aggressive stance taken by the government, that anger had nothing to do with oral argument, but instead with the initial decision by the government to regulate the movie in question.  And if that anger was going to cause the Court to “go big” by resolving the case in a dramatic, comprehensive First Amendment fashion, then the oral argument flashpoint Toobin highlights was neither here nor there.

My Third Reservation:  Where Is the Link Between Stewart’s Oral Argument and Justice Kennedy’s Ambition?

My third reservation about Toobin’s thesis is related to my second.  Toobin suggests, without fully explaining his reasoning, that the response Stewart gave about books is what caused the Court to call for reargument and widen the scope of the case.

Toobin recounts, seemingly based on some access to behind-the-scenes information—much of what he describes would not have been publicly accessible—that after Stewart’s argument, Chief Justice Roberts first circulated a draft opinion that would have resolved the case narrowly by simply deciding that the statute didn’t cover this film (which was Citizens United’s initial argument, on which they lost before the FEC), but that Justice Kennedy wrote a draft concurring opinion in which he indicated that the differential statutory treatment of corporations in McCain-Feingold itself violated the Constitution, and that older cases permitting discrimination against corporations should be overruled.

It was at that point, Toobin says, that Chief Justice Roberts understood that if the case were to be reargued, there would be five votes for a broad, constitutional invalidation of this major cog in the McCain-Feingold law.

So, Toobin says, Roberts got the Court to vote for reargument and, after that new argument took place, he assigned the majority opinion to Justice Kennedy, who then converted his concurrence draft into an opinion for a five-member Court majority.

But what’s missing from Toobin’s story—and this is the critical point—is any specific reason to believe that Kennedy and the other four Justices who ended up joining him were moved in any way by Stewart’s oral argument answer.

On the face of things, it seems unlikely that Stewart’s oral argument answer was a significant factor.  Remember that, according to Toobin’s own account, well after the first oral argument, Chief Justice Roberts drafted and circulated a narrow opinion resolving the case.  If Stewart’s oral argument had caused any of the conservative Justices to want to decide the case more ambitiously, wouldn’t that have been made known to the Chief Justice in the post-argument conference on which he based his decision about how to draft the opinion that he planned to circulate to garner a majority?  Why did the oral argument’s catalyst effect take weeks or months to manifest itself to the point where Chief Justice Roberts, a sharp cookie to be sure, could see it?

If Toobin has any inside information that might rebut the natural inference of non-causation based on the time lapse I describe, one might have thought that he’d be able to quote, or at least summarize, a source’s words to the effect that Stewart’s broad answer asserting regulatory powers over books is what sent Justice Kennedy or others over the cliff.  But Toobin makes no such suggestion.

Indeed, much of Toobin’s essay is devoted to explaining that Justice Kennedy has been constitutionally opposed to a great deal of campaign finance law—and the differential treatment of corporations under it—for two decades.  As Toobin puts the point, “All the Justices knew that Kennedy’s views were most extreme when it came to the First Amendment.”

This is likely true, but it undercuts, rather than supports, Toobin’s suggestion that Stewart’s argument answer had anything to do with Justice Kennedy’s (ultimately successful) gambit to use this case to remake First Amendment law.

More generally, as Toobin himself acknowledges, once Justice Alito replaced Justice O’Connor, it was clear as early as 2007 (in the Wisconsin Right to Life case) that “five Justices would soon declare the McCain-Feingold law unconstitutional.”  If astute observers (including Toobin) saw this three years before Citizens United was handed down, then why does Toobin think Stewart’s oral argument had any effect on anything?

And even if Stewart’s oral argument did make a difference in that litigation (which seems unlikely), wouldn’t it only be a matter of a short period of time before the Court found another case to use to do exactly what it did in Citizens United?  Failing to fend off the inevitable for a year or two is hardly changing the course of history.

Let me be clear:  I am not saying that oral argument never counts.  But it usually doesn’t, and in the rare case when it does, ordinarily the outside world can’t be sure of its effect.  I recognize that causation, or lack thereof, is impossible to prove in these kinds of instances.  But I think that if someone is asserting that oral argument changed the outcome or the scope of a particular case, and there is no offer of direct evidence of anything said by members of the Court or their staff in the days or weeks following the argument, notwithstanding obvious access to some “inside” sources, then he or she must do more than simply point out that the ultimate outcome surprised some early observers, and that there were some dramatic and excited moments at argument.

Here’s a good example:  Six months ago, the overwhelming majority of first-rate constitutional analysts expected that the Court would uphold Obamacare because the arguments under traditional modes of constitutional interpretation seem so one-sided.  And there is no real doubt that oral argument went poorly for Solicitor General Verrilli in March; there were clearly dramatic and difficult moments for him.  (I myself have written that he could, and should, have had much better answers to the predictable “slippery slope” questions thrown at him.)  But if the Court strikes down the mandate 5-4, we should not think that the result was caused by Verrilli’s subpar oral argument, and that if only he had been better in answering questions, the Court would then have come out the other way.  That explanation is possible, but the more likely explanation—again, assuming the Court does end up striking down Obamacare—is that five Justices had decided before argument that they didn’t think Congress had the power to create the mandate, and nothing at oral argument either way would have mattered to them.

Toobin may be correct in suggesting that Citizens United is not just a case, but rather a way of thinking about the world and the First Amendment (just as the term “PATRIOT Act” has symbolic import that goes beyond a single statute about counterterrorism).  As Toobin puts things, “[t]he Roberts Court . . . will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”

I can’t say if this is truly what Citizens United means, but if so, that legacy—much more than any personally interesting but to me largely speculative connection between an entertaining oral argument exchange and a decision by the Court to reshape the law—is the real human-interest story that is worth telling and worth hearing.  I look forward to future chapters in which Toobin conveys more of it.

Cross-posted from Justia's Verdict.

’Tis the season to be a college protestor.  With a momentous presidential election on the horizon, the Occupy Movement promising to kick into high gear again, and young adults facing uncertain job prospects and ever-increasing higher education costs and debt loads, students at campuses across the country are understandably seeking ways of demonstrating their deep discontent and anxiety about the status quo.

My own university—the University of California—has seen its share of unrest.  Protests at UC Berkeley, the birthplace of the so-called “free speech movement” in the 1960s, got ugly last fall, with police who were ostensibly trying to remove encampments using batons against students.  Things got out of hand here at UC Davis last fall too, with a campus police officer employing pepper spray against seated student protestors.

And more recently here at UC Davis, protestors—objecting to what they, at least, viewed as an example of the unhealthy privatization of higher education—obstructed access to a branch of a bank located on campus. (Many ardent advocates of higher education had no objection to the bank; the bank had leased space from the University to serve the campus community, and the lease would have provided two million dollars or more to the university over a 10-year period.)

After the blockades took place, notwithstanding repeated warnings from authorities that blockaders risked serious punishment, the university administration and campus police identified several students who had participated in the obstructive protests for prosecution by the County District Attorney, under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney’s office as well. Last month, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

One of the things that has surprised me most about this episode and its aftermath is how many people—many of them sophisticated, well-educated folks—mistakenly believe that because the blockaders were obstructing the bank’s business for what they viewed as a righteous political reason, their actions were legally protected under constitutional principles of free speech.  In other words, many people are surprised to learn that the First Amendment permits punishment of this kind of expressive demonstration.  So in order to help students and other would-be protestors know when their activities will likely get them punished (so that protestors may then weigh, in an informed manner, the costs and benefits of proceeding), I offer five First Amendment myths that apparently need debunking:

Myth No. 1:  The Expressive Intent or Motive of the Protestor Is the Most Important Factor in Determining Whether His/Her Speech Can Constitutionally Be Prohibited

On rare occasions, people who are doing something to express a message—especially a political message—are immune from a regulatory law on account of their message and the particular place and time at which they need to express that message in order to be effective in communicating it.  And the Supreme Court has often said (for example, in last year’s funeral protestors case, Snyder v. Phelps) that speech about “matters of public concern” (e.g., public policies, elections, etc.) receives the highest level of First Amendment protection.

But just because you are involved in an expressive activity about something you think is important does not mean you have an automatic exemption from generally applicable laws that were passed, and are enforced, for reasons that are unrelated to the suppression of expression.  As one commentator (my brother, Yale Law Professor Akhil Amar) has put the point, The New York Times has no First Amendment license to ignore air pollution regulations.   And the U.S. Supreme Court itself has made the same kind of observation in a number of cases, perhaps most famously in United States v. O’Brien, where the Court upheld the prosecution of a Vietnam War protester who intentionally burned his government-issued official draft card, because the law prohibiting destruction of draft cards was designed not to censor, but rather to facilitate the administration of the Selective Service System.

In another seminal case, this one involving cross burning, a majority of the Court repeated the same essential idea:  “[N]onverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”

Even some of the Justices who did not join the majority concurred on this point:  “It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag.”

So it turns out that motive or intent does matter in First Amendment cases—but it is the government’s motive or intent, not the would-be speaker’s, that largely determines whether the First Amendment permits government punishment of an activity that someone is undertaking in order to send a message.

Myth No. 2:  Laws Regulating the “Time, Place and Manner” of Speech in a Content-Neutral Way Are Unimportant or Are a Pretext for Speech Suppression, and Thus Do Not Really Need to Be Enforced

Rules that govern the time, place and manner in which speech occur often serve weighty purposes, including the creation of an environment where those who shout the loudest are not the only ones whose speech gets to be heard. Unsurprisingly, then, the idea that no one need ever obey such rules because the rules are pretextual or unimportant finds no support in court decisions.

As the Supreme Court of California stated in an oft-cited free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizen’s rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

So things like physical obstruction and blockades are conduct that government has always had the legitimate authority to proscribe, because the conduct so obviously obstructs the liberty and the lawful pursuits of others. Government prohibition of blockades or obstruction has been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and that statute raises harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected to gather.

To see an easy example of why anti-obstruction laws are necessary and proper, consider what would otherwise happen when two groups of opposing protestors both want to blockade a facility (say, the US Supreme Court, the day of the Affordable Care Act arguments) at the same time, or two opposing political groups want to blockade each other’s protests.  Without valid and enforceable time, place, and manner rules applicable to political protestors, political protests could easily and literally devolve into melees.

One critical reason why blockades and similar obstructions can be prohibited is that they are not intended to, and do not, persuade anyone of the merits of the protestors’ position.  They are employed to coerce third parties to change their behavior, not their minds. As such, blockades and the like are in some respects actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded—a commitment to the power of ideas, rather than the use of force, to change the way that people act.

Myth Number 3:  Expressive Conduct Is Treated No Differently Than Pure Speech Is

There is a kernel of truth to this statement, in that courts often do rule in favor of people who act, rather than utter words, to get their message across.  So, for example, a few decades ago the Supreme Court twice ruled in favor of protestors in striking down laws that tried to prohibit flag burning.  And it often makes sense to downplay the speech/conduct distinction, in that all speech requires conduct or action—moving the muscles in one’s fingers or arms to make a point shouldn’t be categorically different than using the muscles in one’s jaw.  So the government’s regulation of conduct can certainly raise free speech concerns.

Yet, crucially, these free speech concerns in the conduct setting arise when the government’s regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is not punishing protestors in order to protect the rights of third parties.  Rather, it is regulating protestors’ expressive conduct in order to censor the protestors’ message.  So, on closer inspection, the notion that expressive conduct is protected is simply a restatement of the idea discussed above in connection with Myth No. 1—that is, the idea that the government’s motive is important.  If government regulates your expressive conduct because it is expressive, then that is a problem.  A censorial government purpose is always illicit, whether the government is targeting your words or your actions.

That is the theoretical frame.  But in practice, when the government regulates your conduct, it often can point to many non-censorial motives, such as keeping good order, preventing violence, facilitating access to public space for everyone, and so on.  As a result, the government in the real world has a much easier time regulating conduct that is mixed with speech than regulating pure speech.  Put another way, the inference of problematic government censorship is easier to generate when the government regulates pure speech, rather than speech mixed with conduct, because the government doesn’t have as many plausible innocent objectives to which it can point when speech alone is at issue.

Myth Number 4:  The Authorities Could, if They So Chose, Cut Protestors a Break When the Protestors Are Trying to Speak Out on Important Issues to Accomplish Just Results

Some have suggested that authorities should excuse violations of time, place, and manner rules when the violations are politically motivated.  If the meaning of the word “political” here is understood expansively, then this argument would seem to reject the enforcement of all content-neutral time, place and manner rules.  After all, every intentional refusal to obey a rule can be understood to express the “political” message that the actor considers his or her conduct to be more important than any obligation he or she might have to comply with the rule.

Nor does the problem go away if we define the term “political” more narrowly. Perhaps some believe that obstruction and other violations of law should be excused whenever individuals are acting in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day.  Obstruction and blockades that protest things like government privatization, under this analysis, should be treated as permissible expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, also could not be enforced against “political” anti-abortion activists who obstruct the entrances to clinics; anti-abortion protestors (or military funeral protestors, etc.) are assuredly expressing themselves on salient public policy questions.

And even if we could stomach the costs of permitting all protestors who are addressing big issues to do as they please, a government’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself likely violate the First Amendment.  That is because government cannot constitutionally discriminate on the basis of the subject matter of speech when it regulates expressive activity.

In Carey v. Brown, for example, the U.S. Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing that was connected to a place of employment from its coverage.  Similarly, if government were to treat obstruction as permitted speech, it could not permit some blockades and not others based on the government’s (contested) sense of the political salience of the protestors’ message.

Some people may try to define the desirable exceptions more narrowly still.  For example, in the UC Davis bank episode, some have suggested that participants in the blockade of the bank should not be punished because they are promoting a political cause that is just. But, of course, treating one political perspective more favorably than another constitutes viewpoint discrimination.  And a public agency that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based.  So the narrower the exception from enforcement is, the larger the First Amendment problem becomes.

Government can make enforcement decisions based on things unrelated to the content or viewpoint of the expression that is involved.  So enforcement decisions based on the extent of harm actually caused or threatened by the protestors, or based on how repetitive the violations of law are, etc., are permissible.  But enforcement agencies can get into First Amendment trouble if their enforcement pattern suggests any favoritism based on particular messages; as a result (and in order to avoid being unable to enforce laws when the laws are violated in the future), many government enforcement decisionmakers tend to act more mechanically than would otherwise be expected.

Myth Number 5:  Even if Rules Have to Be Enforced By Ordinary Governments, University Campuses Are Special Places Where More Expressive Conduct Should Be Permitted

As with some of the other propositions I’ve discussed, there is a grain of truth to this statement; universities are indeed dedicated to promoting free speech, and what counts as “disruption,” or “obstruction” might be different in the context of a university quad than in the context of, say, a post office parking lot.  So, provided that public universities do not treat protestors differently based on the subject matter or viewpoint of their message (which would violate the First Amendment), they may permit a bit more operational inefficiency than do other government actors, in the name of promoting free speech.

But the problems of governing a community with tens of thousands of residents who have conflicting desires to access services and use scarce property do not disappear simply because the community is also an institution of higher education.   Again, any relaxed enforcement stance by public universities with respect to liberal protests would necessarily mean that campus authorities could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services.  And you always have the problem of managing the use of limited property among competing protestors; when protestors want to counter-blockade each other’s protests, then enforcement of neutral time, place and manner rules are the only way to keep order.

One might think that private universities would be free to pick and choose how to enforce their rules, because they are not bound by the content- and viewpoint-neutrality norms of the First Amendment.  But in California, there is a statute that subjects private universities to the same constraints that the First Amendment imposes on public actors.  As long as this statute is not invalidated itself (and I do think it is open to some constitutional challenge), Stanford is no freer to selectively enforce its rules than is the UC.

Finally, I note that there is one other respect in which universities may be different (as least with regard to their students) than are other communities.  Namely, universities often have an administrative disciplinary system of enforcement (e.g., academic suspension, expulsion, etc.) at their disposal.  For this reason, criminal prosecution may not always be an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. In some cases, in-house discipline imposed by the university itself may be adequate and preferable, so long as decisions about which mode of enforcement to pursue are not made on the basis of the content or viewpoint of expression.

So the issue of what kind of sanction makes sense is an important one to keep in mind in the university setting.  So, too, are the related questions of how much, and what kinds of, force are appropriately used against students who violate university rules.  These two questions are beyond the scope of my column today, but obviously deserve careful attention.

By Professors Alan Brownstein and Vikram Amar.  Cross-posted from JURIST.

An unflinching commitment to freedom of speech is the cornerstone of constitutional democracy in the US. Certainly we protect freedom of speech more vigorously than any other western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

These two principles, freedom of speech and academic freedom, overlap and are interconnected in some ways. But they also reflect distinct ideas. Freedom of speech is a broadly applicable right that protects speakers both on and off campus from unwarranted government interference with expression. Academic freedom, which may extend beyond what the Constitution protects, is grounded on the idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.

At base though, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of one's argument, rather than the use of power to coerce others into acceding to the proponent's point of view.

Sometimes the heat and passion of political protests on college campuses causes these basic principles to be overlooked or ignored. When that happens, it is important to remember what freedom of speech and academic freedom really mean and how easily both of these principles can be misused and misinterpreted.

Recently at the University of California, Davis, protestors repeatedly obstructed access to a branch of a bank located on-campus. The bank had leased space to serve the campus community, and the lease would have provided $2 million dollars or more to the university over a 10-year period. Ultimately, and ostensibly in response to the protestors' conduct, the bank closed its campus branch office.

Photo from The Aggie.

The university administration and campus police identified several students who participated in the obstructive protests to the County District Attorney for prosecution under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney's office as well. On March 29, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

We have no basis for evaluating the merits of the charges brought against any individual. We also recognize that prosecution is not always an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. The university has administrative disciplinary procedures available to it that may be enforced against obstructive behavior. In some cases, in-house discipline may be preferable to prosecution.

The point of this article is not to discuss and compare alternative remedial responses to unlawful conduct on-campus. It is to evaluate the claim that politically motivated obstruction should be immunized from sanction.

The Board of the Davis Faculty Association (DFA), an organization that is sometimes thought by the media to speak on behalf of the larger UC Davis faculty but whose membership in fact comprises a very small fraction of the professors here at the university, challenged the administration's decision to seek prosecution of the identified students, not because the students were innocent of the charges against them or because campus disciplinary procedures would be a more appropriate response for certain kinds of violations of law on-campus, but because the obstruction of the bank was politically motivated and morally just from the DFA's point of view. The DFA letter/petition to the campus administration said in relevant part:

The closure of the branch and cancellation of the contract were due to a blockade of the branch office carried out by student and faculty protesters from January through March. It is important to understand the political content of this blockade: the demonstrators continually stated their opposition to the substitution of private contracts for public funding of the UC system, and they continually pointed out conflicts of interest related to University contracts with corporations profiting from student loan interest as the UC administration continues to increase tuition, thus forcing many students to take out increased loans. ... We reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent.

Referring to possible punishment of the students as "retroactive legal action" (as if the failure to arrest someone prior to, during or immediately after his violation somehow precludes or renders illicit the subsequent filing of charges), the DFA goes on to express its "opposition to the UC Davis administration's decision to have these cases forwarded to the DA by the police." It then asks "that the administration recognize the political content of the US Bank blockade rather than treating it as a criminal matter."

As mentioned earlier, the DFA Board does not speak for many people. But that even a few faculty members at one of the nation's top universities would misunderstand the basics of freedom of speech and/or academic freedom is troubling, and suggests the need to use this episode as a "teachable moment." For the reality is that the DFA's position is unworkable under any reasonable interpretation of free speech doctrine or academic freedom principles.

To begin with, it bears noting that a blockade is not, of course, constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because the conduct so obviously obstructs the liberty and lawful pursuits of others. Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected.

One critical reason why blockades can be prohibited is that they are not intended to and do not persuade anyone of the merits of the protestors' position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded — a commitment to the power of ideas rather than the use of force to change the way that people act.

The courts do recognize that sometimes government regulation of otherwise proscribable conduct can raise free speech concerns. This occurs when conduct is engaged in for expressive purposes, such as the burning of an American flag, and, crucially, the regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is punishing protestors not to protect the rights of third parties; it is regulating protestors' expressive conduct to censor the protestors' message. But the DFA's complaint is not (nor could it be, based on the available evidence) that the campus administration and police seek to prosecute the bank blockaders but would take no enforcement action against other blockaders who engaged in obstruction for different, "approved," purposes. In other words, the DFA does not rail against discriminatory enforcement. Instead, the DFA argues for discriminatory enforcement that provides the protestors special immunities. It demands that the campus and police treat the students involved in this blockade differently and more favorably relative to other students engaged in obstructive behavior, because of the expressive political purpose and message of the protestors at the bank.

Whether this suggestion by the DFA is viewed broadly or narrowly, it makes little sense. Let us look first at a broad understanding of DFA's submission. If the DFA is using the term "political content" expansively, its argument would seem to reject the enforcement of all content-neutral time, place and manner rules. After all, all intentional disobedience of a rule can be understood to express the "political" message that the actor considers his or her conduct to be more important than any obligation to comply with the rule. Time, place and manner rules often serve important purposes, however, including the creation of an environment where those who shout the loudest are not the only people who get to speak and be heard. Unsurprisingly, the idea that no one need ever obey such rules simply because they have "political" reasons for refusing to do so finds no support in court decisions.

As the Supreme Court of California stated in an important free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizen's rights of free association and discussion. ... Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

Perhaps the DFA intends for the term "political content" to be interpreted more narrowly. Perhaps the DFA is suggesting that obstruction and other violations of law should be excused whenever individuals are engaged in blockades in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day. Obstruction and blockades about things like privatization, under this analysis, should be treated as permissible, if not protected, expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, could not be enforced against "political" anti-abortion activists blockading the entrances to clinics. And what happens when two groups of opposing protestors both want to blockade a facility (say the US Supreme Court the day of the health care oral arguments) at the same time, or two opposing political groups want to blockade each other's protests? Without valid and enforceable time, place and manner rules applicable to political protestors, political protest could easily and literally devolve into melees.

Alternatively, maybe the suggestion is that laws prohibiting obstruction should be enforced off campus, but not on a college campus. But the problems do not disappear when protests occur at institutions of higher education. Under this analysis, campus administrators and police could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services. And you still have the problem of managing the use of scarce property among competing protestors.

Logistical costs aside, if we tried to treat only salient political blockades as permitted expressive activity, a public university's decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself violate the First Amendment. Government cannot discriminate on the basis of the subject of speech when it regulates expressive activity. In Carey v. Brown, for example, the US Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing connected to a place of employment from its coverage. Similarly, if the university is going to treat obstruction as permitted speech, it cannot permit some blockades based on the university's (contested) sense of the political salience of the protestors' message.

It may be that the DFA's position is narrower still. When it states that "[w]e reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent," the DFA appears to be arguing that participants in the blockade of the bank should not be punished because they are promoting a political cause which the DFA supports. Treating one political perspective more favorable than another, of course, constitutes viewpoint discrimination. A public university that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based. You don't need to have attended law school to intuit that.

In adopting a political position and permitting that viewpoint to influence its regulation of campus protests, a public university would be undermining more than the First Amendment. It would also be destroying any justification it might offer for protecting the academic freedom of its faculty and departments. When a university engages in viewpoint discrimination, it demonstrates that it is no longer committed to open inquiry and the free exchange of ideas. The university instead morphs into a political institution committed to particular perspectives — so much so that it excuses violations of law when the violators happen to agree with the orthodoxy of its political positions. We value political institutions in society (such as political parties). But public universities serve different purposes and would lose much of their distinctive worth and claim to public support if they succumbed to partisan political canons of truth and legitimacy.

We understand that in any society, individuals may feel compelled to engage in civil disobedience. This respected form of protest, however, bears no resemblance to the blockade of a bank and the accompanying insistence that those who engaged in obstruction should be immunized from the consequences of their conduct. Civil disobedience involves the deliberate decision to disobey an unjust law. Students challenging segregated facilities in the Jim Crow south by sitting in at lunch counters and bus stations engaged in civil disobedience by refusing to submit to racist laws. Laws regulating the time, place and manner of activities on public property in race-neutral, content-neutral, viewpoint neutral ways that leave open ample other opportunities for expression (and the campus' regulations have to and do satisfy these standards to be permissible) are not unjust laws.

More importantly, the communicative power of civil disobedience gains its force by protestors demonstrating the strength of their convictions by their willingness to be arrested and sanctioned for violating the law. Last time we checked, Dr. Martin Luther King, Jr., the person for whom our law school building is named, understood the difference between civil disobedience to unjust and unconstitutional laws and legitimate, constitutionally acceptable time, place and manner laws to which he had no basis for moral or legal objection.

Harvard University Press just sent me a copy of the new book, The Offensive Internet, edited by University of Chicago law professors Saul Levmore and Martha Nussbaum (each of whom also contributes a chapter in the book). 

The book is an important antidote to the often Panglossian approach of early cyberspace enthusiasts.

I contributed a chapter titled "Youthful Indiscretion in the Internet Age." It's a collection of thoughtful papers. While you are likely to disagree with many of them (as I do), the papers each make significant contributions to the literature.

I have been intrigued by the attention national media have given this week to a criminal trial in West Texas.  Ann Mitchell, an administrative nurse at the community hospital in Winkler County, went on trial in state court charged with "misuse of official information," a third-degree felony that carried a possible fine of $10,000 and up to 10 years in prison.  The charges stemmed from an anonymous letter that Mitchell and another administrative nurse wrote to the Texas Medical Board.  In it, they called the Board's attention to irregularities in how Dr. Rolando G. Arafiles was practicing medicine at the hospital where they worked.  The nature of the irregularities and report are described in a New York Times story as "a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services."  The nurses believed they were under a professional obligation to make the report, but following it, the Winkler County Sheriff's Office seized their work computers and arrested them.  The local prosecutor subsequently charged the nurses with the third-degree felony, and the Winkler County Hospital fired them.  Those consequences apparently unfolded after the Medical Board notified Dr. Arafiles of the anonymous complaint and he told his "friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter."  The prosecutor says that Mrs. Mitchell has a history of making "inflammatory" statements about Dr. Arafiles and that she did not make the report in good faith.  To establish the felony charged, however, the State must prove that she disseminated confidential information for a "nongovernmental purpose" with intent to harm Dr. Arafiles. 

The prosecutor dropped charges against Mrs. Mitchell's colleague just before the case went to trial.  A jury in neighboring Andrews County acquitted Mrs. Mitchell on Thursday.  The jury voted unanimously on the first ballot to acquit the nurse and questioned why she had ever been arrested.  Read more here.

New York Times reporter Kevin Sack observed that "seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite" in the small town of Kermit, population 5,714, where these events unfolded.  Indeed, subsequent reports reveal an additional conflict:  according to filings in a federal case the nurses have brought against Arafiles, the Sheriff, and Winkler County, the Sheriff is a partner in Dr. Arafiles' herbal supplement business, a business that Arafiles promoted in emails to patients.   

Despite the obscure locale of these events--or perhaps because of it--the New York Times published three items about them last week.  The paper reported last week-end on the impending trial of Mrs. Mitchell, and later in the week it reported the not-guilty verdict.  In between, it published an editorial commenting on apparent flaws in the prosecution and the chilling effect it might have on whistle-blowing.  

The first NYT story about these events inspired this blog post on my Legal Ruralism blog, and I was especially intrigued that the story attracted as much attention as it did.  On the day it appeared, it rose as high as number 2 on the "most emailed" list at nytimes.com, and it stayed on the top-10 list for nearly two days.  I attributed the high degree of interest to the broad headline, "Nurse to Stand Trial for Reporting Doctor."  Many doctors and nurses all over country were presumably taking note of this unusual event and sharing the news.  But the New York Times reporting and editorial suggest several ways in which this story is distinctly "rural" or "small-town." In addition to referring to the apparent conflicts of interest, Sack's reporting refers to the "stained reputations" of the nurses and how "heads turn when they walked into local lunch spots."  He also reports the practical difficulties that rural hospitals like that in Winkler County have in attracting and retaining physicians; indeed, Dr. Arafiles came to the hospital in 2008 with a restriction already on his medical license.  The trial was moved to neighboring Andrews County because it "polarized the community."  Finally, the New York Times editorial suggests that "small-town 'justice'" was the problem.  

So, is there really something distinctly "rural" about this story, or could it happen anywhere? Clearly, it could happen anywhere, though I tend to agree with the Times' suggestion that the rural context facilitated this unusual prosecution. 

Rural sociologists and other scholars who write about rural-urban difference have discussed a number of factors apparently at play in these West Texas events.  These include lack of anonymity and conflicts of interest that sometimes result from it; rural disadvantage in terms of access to services such as medical care; a lack of checks and balances in rural local government and a related failure of local government to protect civil rights.  In this case, heightened reputational injury associated with lack of anonymity and the inability of the dismissed nurses to find replacement jobs because of the limited labor market presumably increased the damages they suffered.  This little case out of Kermit, Texas thus illustrates how various characteristics of rural places can be legally relevant in a variety of ways.  Some of the challenges associated with rural lack of anonymity were apparently mitigated by the change of venue.  Whether law and legal actors adequately respond to other challenges associated with rural places--such as those that seem to have aggravated the nurses' damages--may be evident when their case against the various officials is tried or settled.

Cross-posted to Legal Ruralism Blog.