Latest Scholarship

September 2, 2015

New Faculty Research: Legal Studies Research Paper Series, Vol. 17 No. 4

Here is a look at some of the most recent scholarship from UC Davis School of Law faculty from the Social Science Research Network's Legal Scholarship Network. Click through the links to download the works.

LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
UC DAVIS SCHOOL OF LAW

"Business and Human Rights Litigation in U.S. Courts Before and after Kiobel" 
UC Davis Legal Studies Research Paper No. 440

WILLIAM S. DODGE, University of California, Davis, School of Law
Email: dodgew@uchastings.edu

This Chapter examines the landscape for business and human rights cases in U.S. courts under the Alien Tort Statute (ATS) both before and after the U.S. Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. It concludes that such cases today face a series of challenges, including personal jurisdiction, the question of corporate liability, the standard for aiding and abetting liability, and satisfying Kiobel's "touch and concern" test.

"Employment Arbitration after the Revolution" 
DePaul Law Review, Vol. 65, 2016 Forthcoming
UC Davis Legal Studies Research Paper No. 443

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

This invited contribution to the DePaul Law Review's Clifford Symposium on Tort Law and Social Policy examines 5,883 cases initiated by employees in the American Arbitration Association between July 1, 2009 and December 31, 2013. Its goal is to shed light on the state of employment arbitration after the U.S. Supreme Court's watershed opinions in Rent-A-Center West, Inc. v. Jackson and AT&T Mobility LLC v. Concepcion.

It finds that employees have filed fewer cases since Concepcion. It also determines that employees "win" - defined as recovering an award of $1 or more - 18% of matters. Finally, it performs logit regressions to investigate the impact of several variables on case outcomes. It concludes that employees are less likely to be victorious when they face a "high-level" or "super" repeat playing employer. Conversely, fact that a case involves a "repeat pairing" - an employer that has appeared at least once before the same arbitrator - does not influence win rates.

"The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence" 
Proceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming
UC Davis Legal Studies Research Paper No. 438

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The English common-law courts gave birth to the character evidence prohibition and helped spread the prohibition throughout the common-law world. Under the prohibition, a prosecutor may not introduce testimony about an accused's uncharged misconduct on the theory that the uncharged misconduct shows the accused's propensity to commit crimes and that in turn, the propensity increases the probability that the accused committed the charged offense. According to the orthodox version of the prohibition, the government may introduce the testimony only if the prosecutor can demonstrate that the evidence is logically relevant on a non-character theory, that is, a theory that does not entail an assumption about the accused's personal, subjective bad character.

Today, though, in much of the common-law world, by virtue of case law and legislation the prohibition is no longer in effect as a rigid, categorical rule. Rather, the courts may admit uncharged misconduct as character evidence when, in their view, the character trait has special relevance or there is striking similarity between the charged and uncharged offenses. In contrast, in the United States the prohibition survives largely intact as a categorical rule. Indeed, the general prohibition is codified in Federal Rule of Evidence 404(b); and the vast majority of states have a statute or court rule modeled after 404(b). Yet, today there is an ambivalence in the American law governing the admissibility of uncharged misconduct:

In federal practice and three handfuls of states, the prohibition has been selectively abolished. For example, Federal Rules 413-14 abolish the prohibition in prosecutions for sexual assault and child molestation. Congress enacted the rules over the vocal opposition of both the Judicial Conference and the A.B.A. and despite empirical data indicating that revidivism rates for those crimes are lower than the rates for many other offenses such as property crimes.

At the same time, in other types of prosecutions there is a marked trend to toughen the standards for admitting uncharged misconduct evidence. Substantively, a number of American jurisdictions have tightened the requirements for both the plan and "res gestae" theories for introducing uncharged misconduct. Procedurally, several jurisdictions have imposed new pretrial notice requirements, demanded that the prosecution explicitly articulate a complete, non-character theory of relevance on the record, and forbidden trial judges from giving "shotgun" jury instructions which do not specify the particular non-character theory that the prosecution is relying on. The distinction between character and non-character theories can be a thin line, and all these steps have been taken to ensure that any uncharged misconduct admitted possesses genuine non-character relevance and is used for only that purpose during deliberations.

Some find the current ambivalence of American law dissastifying and urge that American jurisdictions resolve the tension by following the example of other common-law jurisdictions that have abandoned a general, rigid prohibition. However, doing so would be at best premature. There has yet to be a comprehensive investigation of the trial-level impact of Rules 413-14. Moreover, the most recent psychological research calls into question the validity of inferring a person's character or disposition from a single act or a few instances of conduct-which is what Rules 413-14 authorize a jury to do. Finally, American courts should be especially solicitous of the policy protecting accused from being punished for their bad character. In the United States, that policy has special importance; the Supreme Court has held that the Eighth Amendment ban on cruel and unusual punishment forbids status offenses. If an American jury succumbed to the temptation to punish an accused for his or her past - nothwithstanding a reasonable doubt about their guilt of the charged offense - the conviction would impinge on a policy with constitutional underpinning.

"The Myth of Arrestee DNA Expungement" 
University of Pennsylvania Law Review Online, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 447

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Building on a trend that began with collecting DNA from convicted offenders, most states and the federal government now collect DNA from felony arrestees. The national DNA database now contains information on more than 2 million arrestees. While some of these arrests will result in guilty pleas or convictions, a substantial number will not. In fact, in many cases arrests lead to dismissed criminal charges or no charges at all. Should these arrestees forfeit their genetic information nevertheless? Every jurisdiction that collects arrestee DNA permits eligible arrestees to seek the expungement of their genetic profiles. While formal expungement is the law, it turns out that arrestee DNA expungement is largely a myth. In most states that collect arrestee DNA, the initial decision by the police to arrest that person turns out in most cases to lead to the permanent collection and retention of the arrestee's genetic information, regardless of whether charges are dismissed or never brought at all. This essay is the first to provide preliminary data on actual arrestee DNA expungement, and argues for quick, efficient, and state-initiated expungement procedures.

"Race-Based Law Enforcement: The Racially Disparate Impacts of Crimmigration Law" 
Case Western Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 437

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This Essay was prepared for the Case Western Law Review's symposium on the 20th anniversary of the Supreme Court's decision in Whren v. United States, 517 U.S. 806 (1996). Racially-charged encounters with the police regularly make the national news. Local law enforcement officers also have at various times victimized immigrants of color. For example, New York City Department (NYPD) officers in 1999 killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of gunfire; two years earlier, officers had tortured Haitian immigrant Abner Louima at a NYPD police station. Both victims were Black, which no doubt contributed to the violence. In less spectacular fashion, police on the beat by many accounts regularly engage in racial profiling in traffic stops of U.S. citizens and noncitizens of color.

Removals of "criminal aliens" have been the cornerstone of the Obama administration's immigration enforcement strategy. Well-publicized increases in the number of removals of immigrants also have been the centerpiece of President Obama's political efforts to persuade Congress to pass a comprehensive immigration reform package. The hope behind the aggressive enforcement strategy has been to convince Congress that this is the time to enact comprehensive immigration reform.

In the last few years, a body of what has been denominated "crimmigration" scholarship has emerged that critically examines the growing confluence of the criminal justice system and the immigration removal machinery in the United States. That body of work tends to direct attention to the unfairness to immigrants, as well as their families, of the increasing criminalization of immigration law and its enforcement. This Essay agrees with the general thrust of the crimmigration criticism, but contends that it does not go far enough. Namely, the emerging scholarship in this genre fails to critically assess the dominant role that race plays in modern law enforcement and how its racial impacts are exacerbated by the operation of a federal immigration removal process that consciously targets "criminal aliens."

Part I of this Essay considers parallel developments in the law: (1) the Supreme Court's implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, the most well-known example; and (2) the trend over at least the last twenty years toward increased cooperation between state and local law enforcement agencies and federal immigration authorities. Part II specifically demonstrates how criminal prosecutions influenced by police reliance on race necessarily lead to the racially disparate removal rates experienced in the modern United States. Part III discusses how some state and local governments have pushed back on cooperation with federal immigration authorities, with effective community police practices being an important policy rationale invoked by local law enforcement for that resistance. Part III of this Essay further contends that more attention should be paid to the racially disparate impacts of linking immigration removals to the outcomes of a racially-tainted criminal justice system. It further sketches some modest reforms to the U.S. immigration laws that might tend to blunt, rather than magnify, some of these racial impacts.

"Corporate Speech and the Rights of Others" 
30 Constitutional Commentary 335 (2015)
UC Davis Legal Studies Research Paper No. 442

THOMAS WUIL JOO, University of California - Davis Law School
Email: twjoo@ucdavis.edu

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate "persons," but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders' property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example.

In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public's right to hear corporate messages. These "rights of others," however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages.

The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation's messages through "corporate democracy." This contention, and not corporate constitutional "personhood," is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the "rights of others" may justify the regulation of corporate speech.

"Remembrance of Early Days: Anchors for My Transactional Teaching" 
UC Davis Bus. L.J. 107, 2014
UC Davis Legal Studies Research Paper No. 444

EVELYN A. LEWIS, University of California, Davis - School of Law
Email: ealewis@ucdavis.edu

This essay discusses teaching transactional skills as part of traditional non-clinical, substantive law classes. It offers a very personal perspective gleaned from the author's 40 years of combined experience as a San Francisco transactional law practitioner and law professor. Of necessity, due to length constraints, the author offers only a few selected opinions about what she thinks works in teaching transactional skills in substantive law classes. Despite this limited focus, the author weighs in, at least a bit, on a myriad of subjects, including the current push for law graduates to be more "practice ready," the importance of skin-in-the-game type mentoring both pre- and post- law school graduation, the different challenges in training transactional lawyers versus litigators, the merits of using multifaceted large drafting projects versus more discrete problems, course advising needs, the teacher as recruiter, balancing desires for breath versus depth of exposure, and using what the author calls factual "side-bars" as accommodation of traditional casebooks to the transactional perspective. The author hopes these offerings of her matured discernment from longevity in the field of transactional law skills training, in the various iterations she notes in the essay, provide some helpful insights to current teachers of transactional law skills, both clinical and non-clinical.

"A New Understanding of Substantial Abuse: Evaluating Harm in U Visa Petitions for Immigrant Victims of Workplace Crime" 
Georgetown Immigration Law Journal, Vol. 29, 2015
UC Davis Legal Studies Research Paper No. 439

EUNICE HYUNHYE CHO, Southern Poverty Law Center
Email: eunice.cho@splcenter.org
GISELLE A HASS, Georgetown University - Center for Applied Legal Studies
Email: Giselle.Hass@gmail.com
LETICIA M. SAUCEDO, University of California, Davis - School of Law
Email: lmsaucedo@ucdavis.edu

This Article examines the legal concept of "substantial physical or mental abuse" suffered by immigrant victims of crime in the workplace, particularly as it relates to the ability to qualify for U non-immigrant status (commonly referred to as a "U visa"). Enacted for the dual purposes of strengthening law enforcement capacity and providing humanitarian relief to victims of crime, the U visa allows non-citizen victims of crime who are helpful in a crime's detection, investigation, or prosecution to remain in the United States, obtain employment authorization, and attain lawful permanent residency. To qualify for the visa, victims must demonstrate that they have suffered "substantial physical or mental abuse" as a result of the criminal activity.

Although legal scholars, medical and mental health experts, and government agencies have more robustly explored the concept of "substantial physical or mental abuse" in the context of domestic violence and sexual assault against immigrant women, there has been no focused exploration of this concept in relation to abuse of immigrant workers. In recent years, labor and civil rights enforcement agencies have increasingly certified U visa petitions in cases involving victims of workplace crime, but greater clarity is needed on the concept of substantial abuse in this context.

This Article provides for the first time a comprehensive framework to evaluate abuse suffered by victims of workplace crime in the U visa context. Based on a multi-disciplinary analysis, the Article argues that adjudicators have erroneously conflated the U visa's "substantial physical or mental abuse" standard with the standard of "extreme cruelty" developed in the context of immigration remedies for victims of domestic violence. The Article also argues that U visa adjudicators and advocates must account for the specific dynamics of abuse experienced by immigrant victims of workplace-based criminal activity, which are distinct from abuse displayed in more familiar cases of domestic violence, and examines particular forms of harm and vulnerabilities experienced by victims of workplace crime. The Article finally provides examples to assist adjudicators, policy-makers, and practitioners in the identification and assessment of workplace based U visa cases envisioned by the U visa statute and regulations.

"The Implications of Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl" 
State Tax Notes, Vol. 76, No. 6, 2015
UC Berkeley Public Law Research Paper No. 2616561
UC Davis Legal Studies Research Paper No. 441

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

This essay analyzes the implications of two recent Supreme Court cases on state and local taxation: Alabama Department of Revenue v. CSX Transportation Inc. and Direct Marketing Association v. Brohl. We argue that both of these decisions not only fail to resolve major issues in state and local taxation, but actually unsettle these issues.

"The Last Preference: Refugees and the 1965 Immigration Act" 
Forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America (Gabriel J. Chin & Rose Cuison Villazor eds., 2015).
UC Davis Legal Studies Research Paper No. 446

BRIAN SOUCEK, University of California, Davis - School of Law
Email: bsoucek@ucdavis.edu

The 1965 Immigration Act is remembered - and celebrated - for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson's words, welcomed immigrants "because of what they are, and not because of the land from which they sprung," the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention's protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees' nationality. To qualify, those persecuted had to hail from a "Communist or Communist-dominated country" or "the general area of the Middle East." A separate provision allowed for entry of those "uprooted by catastrophic natural calamity as defined by the President."

By tying refugees' status to "the land from which they sprung," to America's anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act's refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.

"Chae Chan Ping v. United States: Immigration as Property" 
Oklahoma Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 445

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on "title or right to be in [the United States] when the writ issued." Importantly, Ping claimed that this right could not be "taken away by mere legislation" because it was "a valuable right like an estate in lands." Similar to his other claims, the Supreme Court rejected this property argument. The Court's treatment of his property claim is understandable because Ping's contention may perhaps be described as "new property," which did not become legible to courts until several decades later.

In reconsidering Ping's property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court's formulation of the nation's absolute right to exclude non-citizens from the United States.

July 1, 2015

What the Supreme Court Should Have Said in the Confederate Flag Texas License Plate Case

Cross-posted from Justia's Verdict.

Display of the Confederate battle flag on government-owned property has certainly gotten a lot of attention of late. The Supreme Court ruled 5-4 a few weeks ago, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., that Texas could, consistent with the First Amendment, reject a specialty license plate design submitted by a non-profit entity due to the design’s prominent use of the Confederate battle flag, even though Texas had approved a disparate array of some 350 other designs submitted by various individuals and organizations depicting messages ranging from “I’d Rather Be Golfing” to the names of a number of (out-of-state) universities to “MIGHTY FINE” to “GET IT SOLD WITH RE/MAX.”

And, in the wake of the Charleston church shootings that occurred a day before Walker was handed down, there have been calls made and steps taken by (Republican as well as Democrat) elected leaders to remove the Confederate battle symbol from statehouses in places like Alabama and South Carolina.

Interestingly, the latter episode sheds light on how the Court should have handled the former—the Walker dispute. In short, the Court should have treated Walker more as a Confederate battle flag case, and less as a license plate case.

Why Justice Breyer’s Majority Opinion In Walker Is Unconvincing

Many able analysts, including some of my fellow Verdict columnists writing in other venues, have exposed some of the major shortcomings of Justice Breyer’s majority opinion, which holds that specialty license plates in Texas are “government speech,” such that the government is largely free to pick and choose—even on the basis of viewpoint—which messages shall be allowed on specialty plates mounted on Texas-registered vehicles. Justice Breyer’s opinion gives a few reasons why the Court believes specialty plates should be treated as government speech. First is that states have historically used license plates as a means of promoting government messages—such as a state’s motto or some iconic image of the state which its leaders want viewers to think of when the state comes to mind. Fair enough, but Justice Breyer is relying here on a prior era, and one in which Texas (and other states) had but a single, or a few, messages it allowed on any of the plates registered in the State. By opening up its license plate regime and approving over 350 disparate messages, Texas has changed the essential purpose (beyond identification of the car’s owner) of the license plate platform from government speech to private speech. And this is not a phenomenon unique to license plates. There might be a lot of public properties that once were used substantially for government speech, but that have been converted into limited or designated or nonpublic fora (where the government is no longer free to discriminate against particular viewpoints) by the government’s decision to open up the property so widely. And it is no response to a claim of improper viewpoint discrimination in any of these kinds of fora to say that the property was originally used for government speech.

The second argument Justice Breyer makes is that license plates are closely associated or identified with the state in the public’s mind. Justice Breyer adds that “a person who displays a message on a Texas license plate likely intend[s] to convey to the public that the State had endorsed the message. If not, the individual could simply display . . . a bumper sticker.” Again, that might have been true of Texas license plates in an early era, but as Justice Alito’s withering dissent points out, no remotely reasonable viewers would ever actually think, after driving Texas roads for even a short time, that Texas really supports messages like “Go [Michigan State] Spartans,” or “Roll [Alabama] Tide Roll.” Or that the person whose plate bears one of these messages actually chose the plate design over a bumper sticker in order to obtain a state imprimatur (as opposed to preferring a specialty plate over a sticker because of the permanence and cleanliness of a plate, and to avoid any stigma tied to the use of bumper stickers.) I also find it interesting that questions such as these are empirical ones, and yet the Court makes broad findings in this regard without any (easily obtainable) evidence. (This lack of empirical input concerning public perceptions was also a feature of another First Amendment case, Williams-Yulee v. Florida Bar, about which I wrote a column six weeks ago).

A Better Framing of the Issues Implicated by Walker

In spite of its analytic weaknesses, Justice Breyer’s opinion arrives at a result that many observers, on and off the Court, find intuitively correct. Can the Lone Star State really be forced to have the word “TEXAS” that runs accross the top of every license plate in the State appear just a few inches from the Confederate battle flag symbol? Walker, it is worth noting, was a rare case in which Justice Clarence Thomas joined the four “liberal” Justices to create a very unlikely 5-4 majority. Odd lineups like this usually suggest that something interesting is going on, but what might be the key to unlocking Walker?

For me, the critical fact in the case is one to which the Court gave virtually no attention—that the symbol at issue is not just an offensive one (representing, as it does, slavery, rebellion, and a combination of the two, whether or not it stands for other things as well.) It is a symbol that originated as government speech by, among other Confederate states, the State of Texas, and that is thus linked to those state governments, including Texas, who are responsible for its prominence and its (ugly) messages. The flag was adopted and used in battle by Confederate states from late 1861 until the fall of the Confederacy, and then utilized extensively by racist governors and other officials to resist desegregation during the Civil Rights movement. So even if Texas were required to permit racial slurs on specialty plates (a matter about which I’m not sure – perhaps Texas, because of its history concerning race, has a strong interest in separating itself from any racist message that, if attributed to the state, might raise equal protection problems), the present case is different: the Confederate battle flag is worse in this regard than a racial slur; it is akin to a racial slur that was adopted and previously used as a state’s motto.

Because Texas has a distinctive association with use of the Confederate flag, it has a distinctive (and non-censorial) reason to want to avoid improper attribution on its property, including its license plates. I am not saying that government owns the intellectual property rights to control the use of flag symbols—the famous Texas v. Johnson case invalidating a law prohibiting flag-burning rightly rejected that idea. Rather, because the risk of misattribution is greater with respect to the use on government property of symbols that had formerly been used by the government itself than it is with respect to other messages, the government has a correspondingly stronger reason (other than censorship) to regulate.

For example, if New Hampshire changed its motto from the traditional “Live Free or Die” message that has been appearing on its license plates for decades (and that was the subject of the other famous Supreme Court case involving a license plate, Wooley v. Maynard) because the State no longer embraced that principle, and it had a specialty plate scheme in which an applicant wanted that creed to physically appear near the words “NEW HAMPSHIRE,” the State would have a strong interest in rejecting that design to avoid any confusion.

If the approach I offer here had been the basis of the majority’s decision in Walker, various problems that Justice Breyer’s opinion creates going forward would have been avoided. If Texas specialty plates really are “government speech,” then how can the State approve and allow the design (which it has) bearing the words “Knights of Columbus,” a distinctively Catholic fraternal service organization? If people identify that design with lawmakers in Austin, isn’t there an Establishment Clause problem? And if the license plates are government (rather than private) speech, then Texas can reject a design bearing the words “Pro-Choice” even though it has already approved one bearing the words “Choose Life.” Does that kind of asymmetry make sense?

It may well be that the rationale I suggest today could, if adopted, mean that some states (i.e., those particularly associated with the Confederacy or racism) would have more latitude than others to reject the Confederate flag on specialty plate designs, and that the rejection by some states (that lack the historical association) would look like censorship, pure and simple. But even if that is true, we should remember that other equality-based constitutional doctrines are similarly contextual. For example, a jurisdiction that has engaged in racial discrimination may have more latitude to engage in race-based remedial action than one that hasn’t. The “government speech” rationale adopted by the Court may seem to create a cleaner line than the test I offer here, but in the long run it is (I suspect) less honest and will be more problematic in future disputes.

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis offered:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?

In entries about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argued under both the First Amendment and also under the federal criminal statute he was charged with violating that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.

May 26, 2015

The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections

Cross-posted from Justia's Verdict.

A few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this "sleeper" ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.

1. The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida's ban on personal solicitation was a regulation that singled out certain speech-a personal request for money-because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply "strict scrutiny" to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.

In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant's claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court's small yearly docket of between seventy and eighty cases for most of that period.

But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against-and requiring significant sacrifices of-other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.

Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.

2. "Strict Scrutiny" Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny-which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest-to the Florida election regulation. But, as Justice Scalia remarked in dissent, "[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny." In particular, the Court seemed quite tolerant of underinclusiveness in Florida's scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered "narrowly tailored" in the way that strict scrutiny dictates.

For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine "public confidence in judicial integrity," why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that "narrowly tailored" does not mean "perfectly tailored," and that the "First Amendment does not put a State to [an] all-or-nothing choice." For the Williams-Yulee majority, it was sufficient that Florida has targeted the "conduct most likely to undermine public confidence[,]" and that personal solicitations are "categorically different" from solicitations by campaign committees. The Court did not go to great lengths to explain this "categorical" difference, other than to say that while committee and personal solicitations may be "similar . . . in substance, a State may conclude that they present markedly different appearances to the public."

Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State "may conclude," it was using language most often associated with deferential review-where benefits-of-the-doubt about the real-world state of affairs are given to the government-not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.

3. Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee-its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, "only [one] prior case concerning speech restrictions on a candidate for judicial office"-the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota's judicial election regulation) applied a stricter version of strict scrutiny.

In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from "announc[ing] his or her views on disputed legal or political issues." The prohibition went beyond candidate "promises" and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.

Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida's goal of "preserving public confidence in judicial integrity." But Justice Scalia's opinion for the majority in White rejected this justification for Minnesota's law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that "statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them." The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is "not self-evidently true[,]" and thus cannot carry the day given the "burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness]."

The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were "uniquely" destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to "conclude" (without any proof) that personal solicitations "present markedly different" appearances to the public as compared to committee solicitations. Why Minnesota had to prove "unique" destruction of confidence whereas Florida could simply reasonably surmise "markedly different" problems of public perception is left unexplained.

Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one's right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably "content-based" and indeed "viewpoint-based," and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)

But my point here is not that Williams-Yulee's result is wrong-only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.

4. Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court's personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.

In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O'Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good-an even swap.

But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade.

May 8, 2015

The (Limited) Utility of State Religious Freedom Restoration Acts (RFRAs): Part Two in a Two-Part Series of Columns

Cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

As we noted in a column for this site two weeks ago, state religious freedom restoration acts, or RFRAs, such as the recently amended Indiana religious liberty statute, have been criticized on the ground that they are intended to permit discrimination against gays, lesbians, and same-sex couples in the provision of goods and services. Given the intensity of this national controversy, we think it would be useful to take a step back-indeed, to take several steps back-and look at the historical background and evolution of the RFRA device. In this column, we focus not on any particular state statute but rather on three general topics: (1) the purpose of the earliest state RFRA laws and how that purpose relates to the goals of the more recently enacted and proposed legislation; (2) the virtues (and drawbacks) of enacting a general religious liberty statute as opposed to adopting religion specific accommodations on a case-by-case basis; and (3) the best way, in light of the current controversy about the conflict between state RFRA laws and anti-discrimination principles, to move forward when state legislatures consider these laws.

The Purpose of Early State RFRAs and What It Tells Us About the Recent Legislative Efforts

As we discussed in Part One, the Supreme Court, in 1990, decided the case of Employment Division v. Smith, a dispute involving the right of Native Americans to use the proscribed substance of peyote in their religious rituals. The Court ruled that neutral laws of general applicability are not subject to any rigorous scrutiny even when these laws have the effect of burdening religious practices. Unless the state targets religion-think of a law prohibiting Catholics from attending Mass-the Free Exercise Clause of the First Amendment simply does not require the state to explain or justify a law that has the effect of prohibiting religiously mandated practices or requiring the performance of religiously prohibited conduct.

The Smith decision came as a surprise to many, perhaps most, constitutional scholars. Based on prior cases, the parties to Smith had assumed that the Free Exercise Clause required, even in the context of neutral laws of general applicability, the government had to justify burdens on religious practice by showing that laws creating such burdens were narrowly tailored to accomplish compelling governmental interests. It is true that the Supreme Court, in applying this "strict scrutiny" narrow tailoring/compelling interest test had very rarely actually ruled in favor of a plaintiff asserting a free exercise claim against a general law. But it had often reached its conclusion by nuanced application of strict scrutiny, rather than rejection of the need for meaningful governmental justification altogether. Prior to Smith, lower courts could not summarily dismiss free exercise claims. After Smith, the door to the federal courts was, in effect, locked tight against free exercise claimants.

The Smith decision drew fire both from legal scholars and advocacy groups. In 1993, Congress enacted the federal Religious Freedom Restoration Act (RFRA), essentially to reinstate, as a matter of federal statute, the strict scrutiny religious liberty rights regime that individuals and institutions had previously understood to emanate from the Constitution itself. But in 1997, in City of Boerne v. Flores, the Supreme Court held that Congress exceed its enumerated powers in enacting RFRA insofar as RFRA applied to and regulated state and local governments. After Boerne, RFRA could be constitutionally applied only to burdens on religion created by the federal government.

This was the legal and political background against which several states considered the enactment of the first wave of state RFRA laws. It is important to recognize three conditions that characterize the consideration of state RFRA laws during this initial period in the late 1990s. First, support for or opposition to these laws did not correlate tightly to party affiliation. There was no doubt concern by some liberals about the application of state RFRAs to civil rights laws, but this concern was only part of the debate and did not cause legislators to be divided along party lines in their ultimate views on state RFRAs. In California, for example, in 1998, a state RFRA law passed both houses of the Democratic legislature, only to be vetoed by Republican Governor Pete Wilson.

Second, general concerns about the correctness of the Smith holding fueled the movement toward state RFRAs. Religious liberty proponents continued to believe and argue that free exercise rights should count for something if they were substantially burdened even by a neutral law of general applicability.

Third, the arguments in favor of state RFRAs were not grounded just in abstractions; they were nested in actual cases and real-world narratives. A pair of real-life settings received particular attention. One was land-use regulation. Religious congregations, it was argued, often found it extremely difficult to develop land to construct new houses of worship because of restrictive state and local zoning laws. Many towns didn't seem to want new venues of worship in residential areas, or commercial districts, or even in agricultural zones. And minority faiths seemed to bear the brunt of these regulatory restrictions. The other narrative involved the religious freedom of prison inmates. It was widely believed that state prison authorities imposed relatively arbitrary burdens on the ability of inmates to engage in worship or other religious activities.

The first and third of these conditions no longer exist today. As to the first, religious liberty legislation is far too often a partisan political issue at this moment, with Republicans favoring state RFRAs and Democrats opposing them.

And, importantly, as to the third, the pair of persuasive narratives for adopting a state RFRA-the burdens created by state and local land use regulations on congregations trying to develop land for a new house of worship and the difficulties state prison inmates experienced in engaging in religious worship and exercise-were effectively dealt with by federal legislation. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA requires state and local governments to justify under rigorous review land use regulations or decisions that substantially burden the use of land for religious purposes and prison regulations and decisions that substantially interfere with the ability of inmates to engage in religious worship or otherwise follow the dictates of their faith. Because RLUIPA invokes Congress's Spending Clause power to attach conditions to federal funding-and because virtually all state and local governments and prisons depend on federal funding-RLUIPA has been upheld and applied by countless lower federal courts and (in the context of the prison provisions) the Supreme Court.

Recent state RFRA laws and proposals can still be justified by the second backdrop condition animating the first generation of state RFRAs-the abstract idea that Smith created a gap in the protection of religious liberty, and that religious activity deserves to be protected to some extent against even neutral laws of general applicability. But because, other than the land-use and prison settings, there are no easily described categories of state regulatory activity that burden religion in ways most people find problematic, a modern state RFRA might seem like a solution in search of a problem. Indeed, the only unifying narrative that describes a general problem, as opposed to isolated cases, to which modern RFRAs might be directed is the narrative grounded in religious objections to same-sex marriage and the claims for exemptions from civil rights regulations that prohibit discrimination on the basis of sexual orientation.

This is the crux of the problem. Legislators and governors who argue that they support a state RFRA law today for reasons that have nothing to do with discrimination related to same-sex marriage have a difficult time persuading anyone of their position because there are no religious liberty narratives involving significant real-world areas of concern other than civil rights laws. The original, principled basis for enacting state RFRA laws still exists, and state RFRAs certainly may be of value to religious individuals or institutions in occasional varied circumstances-religious burdens do arise outside of land-use and prison contexts as we demonstrated with some hypothetical examples at the end of Part One of this series-but there is no well-organized storyline here that can be easily understood and valued. In other words, because, after RLUIPA, the contexts in which state RFRAs might provide needed protection do not fall into any easy-to-define or easy-to-predict categories of regulation, avoiding antidiscrimination laws is the primary narrative that is still left standing. It is the one that most people see. And, to be frank, it certainly appears to be the primary motivation for the introduction of new RFRA bills in state legislatures these days.

A General Religious Liberty Statute Versus Religion-Specific Accommodations on a Case-by-Case Basis

Assuming that some exemptions for religious activity outside of the land-use and prison arenas may be worthwhile, the question becomes whether a state statute (e.g., a RFRA) is the best way to facilitate them. Another way of framing the issue is, given that some religious exemptions will be recognized by government, whether we are better off determining when exemptions should be granted by having the more political branches of government evaluate practice- or sect-specific requests for accommodation, or whether it would be preferable to enact a general religious liberty statute, like a state RFRA, and shift the task of determining when an exemption is appropriate to the judiciary. We think general religious liberty statutes have some important virtues over religious practice- or sect-specific accommodations.

First, the general religious liberty statute is, by definition, general. It seeks formally to apply the same standard to all faiths. Thus, a religious person's ability to obtain an exemption will not, in theory at least, depend on his or her ability to influence the political branches of government. It is true that judges, like legislators, may also be unfamiliar with or unsympathetic to religious minorities. Still, under a general religious liberty statute, a minority faith with insufficient muscle to achieve an accommodation through political channels has an additional forum where its claims can be heard-a court of law.

Second, the business of obtaining sect- or practice-specific accommodations has other serious drawbacks. Restricting religious exemptions to the political branches of government politicizes religion. The freedom to practice one's faith becomes a benefit controlled by the government. Accordingly, religious groups have to organize politically as religious groups to obtain the exemptions their faith requires.

Third, and related, a system in which all accommodations are political actions requires religious individuals and groups to spend their political capital on freedoms that should be theirs as of right. This system operates like a political tax on religion.

Fourth, if the ability to practice one's faith depends on a religious group's political power in a jurisdiction, we create an incentive for religious people to live in communities where there are a sufficiently large number of co-religionists to influence the government. A legal regime that promotes the segregation of communities along religious lines is problematic and much less desirable than a regime that facilitates the religious integration of our communities.

Of course, there are problems with general religious liberty statutes as well. The standard of review to be applied by courts in these laws is intrinsically subjective, value-laden and unpredictable. No one can really be sure how a given court will interpret and apply the law to the facts of any given case. Accordingly, the protection provided to religious liberty may turn out to be much narrower or much broader than the community anticipated when it enacted the law. In theory these statutes can be amended to cure wrongly decided cases, but there is no guarantee that the political branches of government will be capable of effectively monitoring and responding to errant RFRA decisions by courts.

Moreover, the indeterminacy inherent in these laws means that, at least initially and in all cases of first impression, they will provide little guidance either to potential defendants or to plaintiffs. In the context of anti-discrimination laws, uncertainty imposes serious burdens on all the relevant parties. Service providers do not know if they are permitted to deny services for same-sex weddings, for example, because of their religious objections to such ceremonies. And same-sex couples lack the security of knowing that they cannot be denied the services they seek when they attempt to patronize a provider of wedding services.

While we recognize that reasonable people can disagree on this point, we think on balance there are legitimate reasons for a state to consider enacting a state RFRA law. But that does not mean that we think the RFRA law should operate to provide exemptions in all cases in which religious exercise is substantially burdened by law.

What is the Best Way for State Legislatures to Balance State RFRAs and Anti-Discrimination Principles?

Church-state scholars generally agree that most RFRA challenges to civil rights laws governing for-profit economic activity will and should be unsuccessful. The state has a compelling state interest in protecting members of particular classes against discrimination in the workplace and in places of public accommodation. And conventional civil rights laws are the least restrictive means available to accomplish this egalitarian goal. Still, no one is certain that all RFRA claims against regulations prohibiting discrimination will fail. Nor is there agreement as to which claims, if any, deserve to succeed.

Because RFRA laws are unlikely to provide any kind of expansive protection to discrimination in employment or public accommodations based on religious beliefs, an obvious solution to the controversy surrounding these laws would be to enact a civil rights carve-out that limits the scope of the RFRA legislation. Indiana amended its RFRA law to provide explicitly that the law does not authorize, or establish a defense for, discrimination in employment or places of public accommodation. Such a civil rights carve-out would make the RFRA law available to protect religious liberty in in various idiosyncratic circumstances in which general laws unnecessarily burden religious practice, but would preclude any possibility that the law would undermine the enforcement of anti-discrimination regulations.

The argument against a civil rights carve-out is that it could carve out too many RFRA claims. Many proponents of state RFRAs argue that there are at least a limited number of situations in which religious exemptions to some civil rights laws are justified, and yet these claims would be excluded from protection under a general civil rights carve-out. These arguments often focus on caterers, bakers, florists and photographers who provide goods and services for wedding ceremonies and receptions, but the arguments are not limited to these commercial activities.

We think the appropriate response to these concerns is straightforward. In addition to adopting a broad civil rights carve-out from the state RFRA, the state could negotiate explicit exemptions-exceptions to the carve-out, if you will-to cover the limited number of situations in which faith-based discrimination might deserve to be protected against civil rights laws. From a policy perspective, this approach would have several advantages. It would provide more clarity than a generic state RFRA. It would guarantee religious exemptions to civil rights laws in specific circumstances where they were thought to be particularly justified. It would avoid any concern that the law would be interpreted too broadly to protect discrimination in inappropriate circumstances. And it would allow a state RFRA to be adopted to protect religious liberty in all of the situations that do not involve discrimination in violation of civil rights laws.

Our suggested course of action may be challenged, however, by the argument that such negotiations in the legislature about the particular exceptions to a civil rights carve-out would be futile. The two sides debating religious liberty and gay rights issues are so polarized that they would never agree on explicit limited exemptions. We are unconvinced that this will always be the case-particularly if states that currently do not protect gays and lesbians or same-sex couples from discrimination bring legislation prohibiting discrimination based on sexual orientation and identity to the bargaining table. Working out what the specific exemptions for religion-based discrimination will undoubtedly be hard political work. But that is no reason not to engage in the attempt.

April 24, 2015

How Best to Understand State Religious Freedom Restoration Acts (RFRAs)

Cross-posted from Justia's Verdict. Part one in a two-part series of columns. Co-authored with Alan Brownstein.

Over the past month or two, religious accommodation laws that have been enacted or proposed by states have attracted much attention in the media and among legal analysts. Such state laws are often called Religious Freedom Restoration Acts, or RFRAs-named and patterned after the federal RRFA adopted by Congress after the Supreme Court's 1990 decision in Employment Division v. Smith, where the Court interpreted the First Amendment free exercise protection narrowly to reject a claim by Native Americans to use the prohibited drug peyote for religious purposes. RFRAs require that before government is allowed to impose a substantial burden on the practice of someone's religion, the government must have a compelling objective that cannot be accomplished by any narrower means for doing so. State RFRAs have been around in some states for a few decades, but this spring saw a new round of state legislative activity in places like Indiana and Arkansas, presumably triggered by the anticipated tension between the tenets of some religions and the ruling most analysts expect the U.S. Supreme Court to render this summer making clear that the legal institution of marriage cannot be denied to same-sex couples.

Other Verdict columnists have already offered insights and arguments about the best way to understand and interpret state RFRAs. In this two-part series, we offer our own take on the state RFRA movement and how best to incorporate it into a nation dedicated to free religious exercise and separation of church and state at once. In Part One, in the space below, we offer some reactions to the doctrinal analyses presented in a recent essay by Verdict columnist Michael Dorf. In Part Two, in a few weeks, we widen the focus to examine more fundamentally how and when state RFRAs came about and what their origin should mean for how they should be implemented.

Mike Dorf's Analysis of State RFRAs in the Context of Private Litigation

Mike Dorf's elegant doctrinal analysis of state RFRAs focuses on whether these laws "should apply in private litigation [i.e., litigation in which neither party is a government entity] if the statute is silent on the matter." Mike offers a couple of arguments for why state RFRAs perhaps ought not to apply to private lawsuits altogether. His first argument begins with a reminder that RFRAs are designed to "restore" the "constitutional right to free exercise of religion that was weakened by the U.S. Supreme Court in its 1990 peyote decision. Because a RFRA restores a constitutional right that applies only against the government, it is natural to assume that a RFRA should be available only in litigation against the government."

But, as Mike rightly points out, oftentimes constitutional rights are at stake and vindicated in cases in which the government is not a party, but in which a party is using some law or policy the government has adopted as the basis for its legal position. So, for example, when a public-figure plaintiff sues a magazine under the state tort law of defamation, the defendant can properly invoke the First Amendment as a defense, even though the plaintiff is a private individual rather than the government, because the plaintiff is relying on state-adopted tort law for his claim. It is the state, through the creation of its tort law, that is effectively burdening the defendant's speech.

Or, as in another example Mike offers, if a state passes an alimony law that treats men and women unequally, such a law can be challenged in a lawsuit between a divorcing husband and wife, even though the state is not a party, because one of the parties is so directly invoking the state law as the basis for asking a court to do something.

Mike properly acknowledges that even in the context of religion, a state's fingerprints can be all over a burden imposed on someone's religion, even if the state is not doing the litigating. So, for instance, if a state gives a landowner's neighbor a right to veto the landowner's decision to expand his building, and a church that wants to expand is blocked by a vetoing neighbor, the church might seek to invoke the free exercise of religion as a basis for resisting the veto, even if the opposing party in the lawsuit is the neighbor to whom the state has given the veto right instead of the state agency itself.

Does Private Litigation Under a RFRA Implicate State Action in a Way Different From Cases in Which Government Is a Party?

After all this, however, Mike argues that the state's involvement in RFRA cases is distinct in a way that perhaps argues against allowing state RFRAs to be invoked in private litigation. Says Mike, about the examples he offered earlier: "When [a defamation defendant] invoked the freedom of the press against [the defamation plaintiff], it objected that the [state] tort rule was defective in permitting a public figure to prevail [under a standard] that afforded insufficient protection for free speech. . . [And] [w]hen [a husband] resisted his alimony obligation, he complained that the [state] statute favoring women over men denied him equal protection of the laws. In these, and many other situations, the party invoking a rights provision in private litigation argues that some legal rule or standard violates his, her or its own rights. In contrast, a RFRA claim does not challenge any rule or standard."

Here is where we think we disagree with Mike. A RFRA claim does challenge a rule or standard-the rule or standard on which the private party opposing the religious claimant is relying in the private litigation. The fact that the right a RFRA claimant seeks to invoke is a statutory (RFRA-created) right to religious accommodation, rather than a constitutional right (such as the right to free speech or equal protection), is beside the point; remember, RFRAs are designed to "restore," by statute, the liberties previously recognized under the First Amendment's Free Exercise Clause. The RFRA claimant has been conferred a right, just as much as a free speech or equal protection claimant has been. And state law, it is alleged in RFRA cases, is protecting the other party's ability to violate that right-by substantially burdening the religious claimant's exercise of his or her religion.

Mike's instinct that a RFRA claimant is not alleging that any state law creating a burden is "defective" is understandable but, we think, wrong. A law challenged by a RFRA claimant is indeed "defective" in the legally technical but important sense that it (allegedly) fails to adequately accommodate religion, which is what the RFRA seeks to guarantee. In the defamation case alluded to above, state tort law wasn't defective in any a priori sense; it was defective only in the sense that it failed to sufficiently accommodate free speech. And RFRA claimants make the same claim as to religion.

Indeed, the example Mike offers concerning the neighbor's veto over land-use decisions seems to illustrate our point. If a church's plans to expand are blocked by a zoning board, clearly the church could invoke both the First Amendment prior to 1990, and a state RFRA nowadays. The same should be true if the opposing party is not the zoning board, but the vetoing neighbor. The law giving the neighbor veto power is defective not in a generic sense, but only in the sense that it may have the effect of frustrating religious freedom. Yet it ought not to matter whether the opposing party is the government or the neighbor himself, or whether the claim is brought under the First Amendment (before it had been watered down) or a RFRA (that seeks to reclaim the undiluted religious right).

We think our analysis makes sense in part because a state can (and often does) elect to have a lot of different kinds of laws enforced through private causes of action-and when it chooses to do so we often find there to be "state action" in the enforcement. The Supreme Court's willingness to find state action involves several factors and seems to vary depending on the particular freedoms that are at issue. We note that the Court has taken a particularly expansive approach to state action in interpreting the Establishment Clause, and it would not be unreasonable to argue that a similarly expansive understanding of state action should apply Free Exercise values. And if there is state action, if the burden would be sufficient to trigger free exercise review if the state itself enforced the law, why should it make any difference if the law is enforced by a private party?

What About Third-Party Burdens?

Mike's second argument for perhaps not applying state RFRAs to private litigation arises from the fact that in all private litigation, accommodating religion creates "the potential for substantially burdening a third party." And the Supreme Court, in the recent Hobby Lobby decision and elsewhere, has given indications that accommodating religion when such accommodation takes the form of inconveniencing government is one thing, but religious accommodations that impose on third parties may be another thing entirely.

Like Mike, we think third-party burdens ought to figure prominently in any application of state RFRAs. But we are not sure a prophylactic rule prohibiting invocation of a RFRA in all private litigation is necessary to properly take account of third parties. Because state law may allow private individuals who don't suffer much, if any, injury to be in litigation against religious adherents (remember that state courts are not limited by the Constitution's Article III standing rules), and because some third-party injuries may be of such a nature that avoiding them cannot reasonably be thought to be a compelling government interest, we think the better course is not to categorically reject RFRA claims in private litigation, but to examine any third-party burdens on a case-by-case basis. When racial or gender discrimination is at issue, the third-party costs will justify denying the accommodation. But imagine the following two hypotheticals:

  1. Suppose a municipal stadium district has a rule that says no one can wear hats taller than 5 inches to sporting events, because people's views get blocked, and allows for a private right of action in small claims court by aggrieved persons. Suppose someone wears a turban to a football game, and gets sued for $500 by another fan seated behind him who had to stand up more often to see the action.
  2. Or suppose a City bans discrimination in the provision of goods and services against people who openly display tattoos. A religious small businessperson who runs his business out of his home declines to serve a patron because the patron refuses to cover up a sexist tattoo on his upper arm, and display of such an image in the home violates the religious tenets of the businessperson. The aggrieved customer sues.

In both of these examples, accommodating religion does create some state-recognized burdens on third parties. But are they the kinds of burdens that would justify a flat, prophylactic rule prohibiting invocation of a RFRA in all private litigation? We are not yet sold on that. Thus, if a state RFRA does not by its terms prevent its application to private litigation (and, of course, every RFRA must be interpreted in light of its own language, read in the context of the entire statute), we think the better course may be to examine each such private litigation case on an individual basis, to look carefully at the extent of state action and third-party burdens.

In Part Two of this series, we locate state RFRAs in a larger historical and doctrinal context, and offer some thoughts on how to give meaning to state RFRAs while avoiding some of the externalities and complications with which Mike is properly concerned.

April 10, 2015

Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates

Cross-posted from Justia's Verdict.

In today's column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas's regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as "HOTSTUFF," a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called "specialty" license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law "may refuse to create a new specialty license plate if the design might be offensive to any member of the public" (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, "which is a Confederate battle flag framed on all four sides by the words 'Sons of Confederate Veterans 1896.'"

When this design was rejected by the Motor Vehicles Board (one of only a dozen or so designs that have been rejected), SCV sued, arguing (successfully in the lower court) that the State's decision to reject the design on the ground that the content of the design-in particular, the depiction of the Confederate flag-might be offensive to some observers constituted impermissible content- or viewpoint-based regulation of expressive activity insofar as the specialty license plate, while State property, is akin to a forum for speech that the government has created and opened up to people to use to express themselves. Texas, for its part, argues that because the State owns all license plates, and because the State of Texas name appears on all plates, including specialty plates, any expression on license plates constitutes "government speech" or at the very least a hybrid of government speech and private speech. Because the government is a (if not the) speaker in this setting, Texas argues, it necessarily has the authority to accept and reject whichever messages it chooses.

The case raises many fascinating and complex constitutional issues-far too many to meaningfully address in a single column. But in the space below, I use three particular kinds of questions that Justices asked at oral argument to illuminate important and often misunderstood aspects of First Amendment doctrine.

Less Can Be More (Important) Under the First Amendment

Let us first consider Justice Kennedy's questioning of the SCV lawyer. One of the things Justice Kennedy pointed out is that if Texas is not permitted to exclude Confederate flags (or Swastikas, or other potentially objectionable material) from license plates, it will almost certainly choose to abandon the specialty (and also the vanity) license plate design program altogether, and simply use old-fashioned, plain vanilla license plates. The result, said Justice Kennedy, is that we would end up with less, rather than more, speech, because individual expression that is currently taking place on specialty or vanity plates would no longer be permitted, and people would be forced to resort to things like bumper stickers, which they may not like or make use of as much as specialty plates. "If you prevail," Justice Kennedy asked SCV's lawyer, "you are going to prevent a lot of Texans from conveying a message. . . . So in a way, your argument curtails speech?"

Justice Kennedy's question is actually a profound but rarely explored one, in that the First Amendment's aversion to content- and viewpoint-based laws may indeed sometimes lead government to enact content-neutral counterpart laws that, quantitatively speaking, restrict far more speech. For example, a law that says "no pro-life rallies in the park after 6pm" is clearly unconstitutional, because it regulates speech on a matter of public concern in a traditional public forum in a viewpoint-based way. But if such a law is replaced with a law (that very well might be upheld) that simply prohibits all rallies in the park after 6pm-a so-called content-neutral regulation of time, place or manner-the result could be an even greater overall reduction in speech.

Of course, it is possible that by forcing government to regulate in a content-neutral way, we may actually make it harder for government to regulate speech at all, so that the end result could actually be an increase in the aggregate level of speech. In the example I gave above, perhaps it would politically difficult to pass a law prohibiting all rallies in the park after 6pm (because many kinds of groups may want to hold rallies, and overcoming the political opposition of all of these groups-as opposed to the merely the pro-life advocates-may not be feasible). If that is true, then striking down the law prohibiting pro-life rallies after 6pm will, in fact, increase rather than reduce the amount of speech.

But oftentimes (as in the SCV case) striking down a law on First Amendment grounds may in fact lead to less speech, but it still can be the right constitutional thing to do. The fact that sometimes we invalidate laws in ways that will create less speech overall tells us that maximizing the aggregate quantum of private speech is not the only thing the First Amendment is concerned with. Preventing the government from distorting the debate, by disabling some points of view, or by locking in majoritarian preferences (as is often the case when "offensive" speech is disfavored) is also an important objective. So too is making individuals feel that government respects them and does not act paternalistically and treat them the way parents treat children by telling them what topics they should be focusing on.

What's Good for the Goose. . . .

A second line of questioning of SCV's lawyer, this time by Justice Sotomayor, concerned whether the State should be given the same kind of free speech respect as individuals enjoy. Justice Sotomayor pointed out that that in the Court's most famous license-plate case to date, Wooley v. Maynard, the majority struck down a requirement that New Hampshire drivers make use of a state-issued license plate bearing the State's message "Live Free or Die." Justice Sotomayor then asked: "In Wooley we said we can't compel the individual[s] to put something on their plates that they disagree with . . . Why isn't the reverse true for the government [if it doesn't want to be associated with the Confederate flag]?"

Justice Sotomayor's symmetry instinct (which assumed arguendo that the Texas specialty license plate regime represents at least a hybrid of government and private speech) is very interesting but ultimately unpersuasive, to me at least. There are lots of constitutional rules that protect individuals that do not protect government in a symmetrical way. For example, a criminal defendant is entitled to have access to all exculpatory evidence in the government's possession, but the government is not entitled to all incriminating evidence in the defendant's possession, even though both sides are trying equally hard to prove their case.

I think there is asymmetry here as well. Even though the government can operate as a speaker, it is not a specific beneficiary of the First Amendment, and certainly shouldn't enjoy all the same First Amendment protections individuals (like the individuals who litigated in Wooley) do. Ultimately, the reasons the drivers in Wooley could not be forced to bear the State's message were rooted in individual dignity and autonomy aspects of the First Amendment. Institutional and organizational actors, as opposed to individuals, can be forced to be a vehicle for government messages and are relegated to engaging in counter-speech as a way of distancing themselves from any government message they don't like. This was true in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case last decade that upheld (9-0) a federal law that required law schools to allow military recruiters onto campus facilities to recruit students, notwithstanding the law schools' opposition to the then-existing policy of the military to discriminate against gays and lesbians ("Don't Ask, Don't Tell"). Like law schools, the State of Texas does not have the same kind of dignity and autonomy attributes that individual motorists have, and so (even granting that Texas has the authority to act as a speaker) requiring Texas to live with the private message on specialty plates and disclaim any endorsement of the message or design on a specialty plate by adding something like "Views on this license plate do not reflect the views of the State" does not violate the Constitution the same way requiring individuals to promulgate such disclaimers would.

The Relevance (or Not?) of a Profit Motive

A third interesting exchange involved the overridingly important question of whether the specialty plates can properly be thought of as pure (or at least hybrid) government speech at all. The State's lawyer argued that the fact that the government has retained the right to veto all specialty designs from the get-go makes this a government speech case, but that factor standing alone surely cannot be dispositive. If a public airport withheld for itself the power to ban any leaflets whose message it found unattractive, that would not justify its excluding leaflets in favor of affirmative action while permitting leaflets against it. Control is, as many Justices pointed out, a circular kind of argument about government power. Deciding what is and is not government speech is much more complicated than that.

One potential factor was mentioned by Chief Justice Roberts a few times, and that is the profit motive by the State. Why, he asked, should we view these specialty plates as government expression at all when government's real goal here was not to raise awareness (about anything) but to raise money? This, too, is an interesting instinct. As with Justice Sotomayor's question, if we analogize to private individual speech, the government fares better; the fact that a private individual or corporation is motivated by a desire to make a profit does not make his/its expression any less constitutionally valuable: the New York Times newspaper represents classic First Amendment speech even though it is published in order to make money.

But as was true for Justice Sotomayor's symmetry argument, here too I am not sure we should treat the government the same as individuals. It does seem a bit untoward that the State would raise revenue by charging people thousands of dollars for the privilege of submitting license plate designs, and then reject those whose content it doesn't like. The idea that the State was (mis)using the specialty-design applicants, and the moneys they paid, for its own monetary gain was one of the most sympathetic aspects of the SCV's case, which was otherwise not very sympathetic given that the Confederate flag has historically been tightly associated with slavery and insurrection (not to mention the fact that SCV's lawyer took the position that the State could not, consistent with the First Amendment, reject designs with swastikas on them.)

The opinions that emerge from this case in the coming months could be very interesting.

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

October 10, 2014

The Supreme Court to Consider When Threats Can Be Punished Consistent with the First Amendment

Co-authored by Professors Vikram Amar and Alan Brownstein. Cross-posted from Justia's Verdict.

'Tis the season to begin looking carefully at the Supreme Court's 2014-2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called "true threats" that fall outside First Amendment protection and thus are subject to punishment. Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons, and his convictions were upheld by the U.S. Court of Appeals for the Third Circuit.

Background Facts of the Dispute

Mr. Elonis allegedly posted threats on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis wrote:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?"

In posts about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . "

Throughout his prosecution, Elonis has challenged the definition of a threat to be used by the jury, namely, that "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argues under the First Amendment (and also under the federal criminal statute he is charged with violating) that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. Elonis does not (and could not) argue that the government must prove a defendant intended to carry out the threat, but he does assert that the government must prove that he intended to place the victim in fear of bodily harm or death.

The Third Circuit (along with a large number of other circuits) rejected this kind of subjective intent requirement. Instead, it held that statements that are reasonably construed as threats by the listener can be punished under the First Amendment. Conversely, the Ninth Circuit (and a number of state high courts) has required the subjective intent to threaten as a predicate to a prosecution for threatening speech. The courts that do require subjective intent often rely on the Supreme Court's 2003 ruling in Virginia v. Black, where the Court upheld the major portions of a Virginia statute making intimidating cross burning illegal. While the Court upheld the ban on threats expressed through cross burning, however, it also struck down a part of the Virginia law that made burning a cross itself prima facie proof of intimidation and relieved the state of having to offer any other evidence as to the meaning of the accused's symbolic expression. In reaching its decision, the Court observed that "'true threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals . . . [whether or not] the speaker . . . actually intended to carry out the threat." The Court noted that prohibitions on threats protect individuals from the fear of violence and the disruption that fear creates, and not just from the likelihood of actual violence. The Court also observed that "intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person . . . with the intent of placing the victim in fear. . . ." Many of the arguments in Elonis focus on what this language from Black means.

The Issues Elonis Presents

Initially, we offer some relatively modest observations about First Amendment doctrine and Supreme Court practice illustrated by Elonis. First, this is a less-than-ideal vehicle to decide whether intent to threaten is statutorily or constitutionally required, since a reasonable jury might easily conclude that the evidence against Elonis establishes such intent in this case in any event. In other words, if Mr. Elonis wins at the Supreme Court, and the case is sent back for a new trial, a new instruction would be given to the jury but a conviction seems likely in any case. Certainly, the Court can (and will likely) reach the merits in Elonis if it wants to, but this is arguably not the best case for resolving the constitutional issue in dispute.

Second, the Court might avoid the constitutional question by reading a subjective intent requirement into the federal statute. If it does so, then it would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)

Third, notice that much of the debate in this case revolves not around core First Amendment principles, but rather what the Court meant in Virginia v. Black. The Third Circuit's reading of the words in Black certainly seems plausible; the Court's description of "intimidation" as including the intent to instill fear could, as the Third Circuit held, refer to a subset of true threats, rather than a definition of the entire category of true threats. And we think the Ninth Circuit misreads Black to the extent that the Ninth Circuit believes that the Court's result in Black necessarily implies the existence of a subjective intent requirement. Whether or not there is a subjective intent requirement, the Virginia statute that made cross burning prima facie evidence of a threat would be constitutionally problematic because it would relieve the government of having to show, in a case where the defendant exercised his right not to present a defense, that a particular cross burning was, in context, something a reasonable person would perceive as threatening (which is certainly true of many but not all cross burnings).

But more generally, we are not sure the Court in Black was offering a general answer to the question of whether subjective intent in a necessary element the government must prove to convict someone for expressing a true threat. Indeed, we think that assigning so much weight to the precise words Justice O'Connor used in her Black opinion misses the forest for the trees. Determining whether subjective intent is a constitutional prerequisite to punishing a speaker for expressing a true threat is an issue the Court needs to discuss and evaluate on its own terms, not as a derivative discussion of the meaning of ambiguous language in a case where the question was never explicitly raised and thus may not have been on the minds of the Justices whose language is being parsed.

Comparing Threats to Other Types of (Potentially) Harmful Speech

Our fourth, larger point goes to the heart of the matter. If subjective intent is required to hold a person liable under a threat statute when a reasonable person would understand the accused's expression to constitute a serious threat, the speaker who places a victim in fear of bodily harm or death will escape sanction when the government cannot prove beyond a reasonable doubt that the speaker intended to instill fear. But the First Amendment does not give speakers a right to cause, whether intentionally or not, this kind of fear and apprehension. The key free speech issue raised by this case is: When does the First Amendment prevent government from protecting people from speech that undeniably causes real harm because government action jeopardizes other important free speech interests?

We think the best way to analyze this question is to compare the treatment of threats with the treatment of other kinds of potentially harmful speech, such as incitement, defamation, and offensive speech. Threats are proscribed not just because they might lead to action, but because they inflict injury in themselves. Unlike, say, incitement, where the evil to be regulated is the possibility that a listener may be influenced to act on the speaker's words, threats wound by their very utterance. In this respect, laws banning threats are more akin to laws sanctioning defamatory speech. In providing civil sanctions for defamation, at least as to private figure victims, no subjective intent is required before government can regulate such expression, whereas in the former setting (of incitement), the First Amendment does seem to require intent to incite before punishment can be imposed. What accounts for this difference in treatment? The answer cannot be that society thinks incitement is necessarily less dangerous than defamation; the costs of incitement have always been recognized as significant.

One explanation for this difference in treatment is that the government's interest in punishing speech because such speech may influence the thoughts and actions of the audience goes to the very core of why we have a First Amendment. The foundation of free speech doctrine is the right to use speech to persuade others of the merits of our ideas. Thus, when speech is dangerous because it might be acted upon, we are more reluctant to regulate it, and we add the extra layer of a subjective intent requirement as protection against government overreaching. Where speech is dangerous because it causes harm directly, however, (as it does in defamation cases) the government's interests do not conflict directly with foundational free speech principles. Accordingly, we allow the civil sanctioning of defamatory speech without the extra buffer requirement of subjective intent.

Using this comparative analysis, we would ask whether speech that causes a reasonable person to fear that he or she is threatened with bodily harm or death is of sufficient constitutional value to justify courts adding the additional buffer of protection provided by a subjective intent requirement. We are not at all convinced that the value of such speech can justify allowing the harm it causes to go unsanctioned.

Another comparison-this one between threats, incitement and so-called offensive speech (use of vulgar and insensitive words, etc.)-may also be instructive. In the incitement realm we require government to prove intent and immediacy notwithstanding the harm that incendiary speech may cause not only because of our commitment to shielding persuasive speech from government prohibitions. We also recognize that there is a slippery slope with regard to punishing incitement. Every idea expressed with passion risks inciting its audience. And, accordingly, every idea that is critical of the government and its policies risks inciting anti-government behavior and violations of law. If we provide inadequate protection to incitement, all speech critical of government could be subject to sanction.

A similar analysis applies to the full protection we provide to offensive speech. Here too we recognize that offensive speech may cause its victims real harm and anguish. No one doubts that the grieving mourners at a soldier's funeral who were subjected to the disparaging speech of Westboro Baptist Church protestors suffered psychological torment. Yet in Snyder v. Phelps, the Court protected the protestors' right to express their hateful and hurtful message free from civil sanction. But here again we also recognize that tolerance of offensive speech is essential to the maintenance of a free speech regime. Every challenge to orthodoxy may offend some people who are comfortable with the status quo. We must vigorously guard against allowing speech to be punished simply on the ground that it offends people because restricting speech to serve this interest risks swallowing up a substantial part of the First Amendment.

Threats are arguably quite different. Unlike state interests justifying restrictions on incitement or offensive speech, the state's interest in protecting people from threats of physical violence that would instill fear in reasonable people seems more cabined and focused. We do not worry that core free speech principles would be undermined if speech that places reasonable people in fear of serious bodily harm or death is prohibited, whether or not the speaker intends his message to have such a frightening effect.

How Will the High Court Rule?

Some analysts predict the Court will reverse the Third Circuit and add a subjective intent requirement to the test for constitutionally proscribable threats. They say this because the current Court has been extremely protective of expression (even odious expression) in a variety of settings, and because so much speech today (especially in rap music and other popular forms of entertainment) is coarse and uses provocative and sometimes violent language. The notion would be that true threats should not be defined so broadly as to sweep too much of what people actually say in the real world within a category of unprotected speech. (Indeed, Mr. Elonis argues that the rap style of his Facebook postings makes his speech less threatening.)

We understand this argument, but aren't persuaded by it. The prevalence of violent imagery in music and other cultural venues in today's society should already be taken into account by the requirement (on which everyone agrees) that a listener's fear must be reasonable in context, and not based simply on some hypersensitivity to ugly, disturbing language. Unless there is a reason to fear that juries won't already factor changes in speech patterns into the definition of what reasonable people would experience as a threat, it is not clear, at least to us, that an extra element of subjective intent is needed here.

Before we conclude, we do note (circling back to our comparative analysis) that in the defamation setting, constitutional doctrine does require subjective intent (in the form of knowledge or recklessness as to falsity) when the victim is a public official. The case law is more protective of speech critical of our government officials than it is with respect to negative speech concerning private individuals. Perhaps the same should be true for threats; because we want citizens to be free to vent anger against their representatives, maybe we should allow them to engage in threatening speech except when they mean to instill fear. On the other hand, the requirement that a victim/listener feel reasonably threatened might itself be sufficiently flexible to protect vociferous ranting against officials, in that officials are less likely to be reasonable in feeling fear than are ordinary folks because officials should know that citizens may exaggerate their anger and rhetoric when it comes to government. In this regard, we emphasize that a reasonable-victim standard does not give juries carte blanche to punish speech whenever they desire; judges are perfectly capable of ruling that, as a matter of law, certain provocative words cannot, in modern and specific context, be understood by listeners as actual threats that put the listeners in reasonable fear of harm.

May 23, 2014

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

Cross-posted from Justia's Verdict. Co-authored with Prof. Alan Brownstein.

Earlier this month, in Town of Greece v. Galloway, a closely divided (5-4) Supreme Court upheld a practice in Greece, New York (located upstate) of starting town board meetings with a short prayer. Under the practice (which goes back around fifteen years) the Town has invited local clergy to offer an opening prayer after the presentation of the Pledge of Allegiance. Prayer givers deliver their words over the Board's public address system, and many clergy have asked members of the audience to bow their heads, stand, or join in the prayer recitation. Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

In upholding the Town's actions, the Court rejected both equality-based and liberty-based arguments that had been raised by the plaintiff challengers. The U.S. Court of Appeals for the Second Circuit had invalidated the Town's policy largely on the basis of equality concerns-because the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. As we made clear in an earlier column, we agreed with this reasoning, but we also felt that the plaintiffs had good arguments that the prayers at board meetings implicated liberty concerns and were coercive, insofar as nonbelievers or persons of non-Christian faiths might feel compelled to participate (or feign participation) in a town's prayers, lest these minorities risk being viewed by the audience and, importantly, by the town board members themselves, as "outsiders" whose needs and interests might get less respect from local government on that account. For us, the coercion argument was much stronger here than it was in Marsh v. Chambers, a 1983 case in which prayers offered at sessions of the Nebraska state legislature that were upheld against an Establishment Clause challenge. Importantly, because persons who attend local government sessions are likely to be participants rather than just spectators, the pressure to conform and participate is significantly higher here than in the state or national legislative arenas. Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council/town board meetings. In the setting of a city council, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

In the paragraphs below, we offer our reaction to the reasoning employed by the Court in resolving these equality- and liberty-based arguments. Given space constraints, we necessarily focus only on the principal opinion in the case, but we recognize that other Justices expressed significant observations and analyses that we hope at some future point to explore.

Should the Town Practice Have Been Viewed as Discriminatory?

Justice Kennedy's opinion-which announced the judgment of the Court and which was joined in full by the Chief Justice and Justice Alito and in part by Justices Scalia and Thomas-was to us quite surprising and disappointing. As we read and reread it, we feel it does not adequately address and respect the core constitutional values of religious liberty and equality, and often characterizes factual matters in strained ways. The analysis ignores critical legal distinctions or assigns substantive meaning to facts that should not matter. And perhaps most problematically, Justice Kennedy's apparent understandings of social reality do not accord with our sense of human behavior, cultural meaning, and proper institutional functioning. In that respect, our disagreement is not just with Justice Kennedy's interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

Justice Kennedy begins by characterizing the Town's prayer practice as nondiscriminatory, which explains his conclusion that the policy does not violate constitutional principles of religious equality. But as the Second Circuit found, the Town's policy is glaringly discriminatory. The Town reaches out and calls congregations listed in local directories, and invites them to provide someone to offer a prayer at meetings. True, the Town asserts that it would permit individuals not affiliated with these congregations to offer prayers at meetings if such individuals asked permission to do so, but the Town acknowledges that it takes no affirmative steps to notify anyone in the community that such requests would be granted. Reaching out to some religious adherents in particular, and ignoring others who may not be affiliated with established congregations, hardly seems neutral.

Nor is the equality problem limited to unaffiliated religious persons; other Town residents may be affiliated, but with congregations located outside yet nearby Greece. Justice Kennedy observes that the Constitution does not require a town "to search beyond its borders for non-Christian prayer givers," but it is common in modern America (especially outside big urban areas) for religious minorities in one town to worship in a congregation in a neighboring community. To formalistically ignore such persons is to deny them the same respect afforded to the members of established local congregations; the Town is simply not treating all of its denizens equally in this regard.

Justice Kennedy's focus on the latitude the government-invited clergy should enjoy to say what they want without constraint also seems to us to completely miss the unequal respect issue, and also the liberty of conscience problem. He observes that once the government "invites prayer into the public sphere . . . it must permit a prayer giver to address his or her own God or gods as conscience dictates." But in the Town of Greece, prayer givers generally have not been expressing purely personal prayers. Instead, they have claimed to be leading a prayer made by the audience and the community. When government invites a prayer giver to speak on behalf of others, more than one individual's conscience is at stake, and the consciences of all of the people in whose name the prayer is offered must be given equal respect.

It is far from respectful to say, as Justice Kennedy does -- in response to concerns by audience members that they are being asked to stand and bow their heads and join in prayers -- that the clergy in question are used to "directing their congregations in this way." The key point is that the audience at a town board meeting is not a congregation -- a group of self-selected worshippers who decided to attend the prayer giver's church because they adhere to his beliefs and practices. Instead, audience members are a diverse group of citizens attending the board meeting on government business to address their representatives. They deserve to be treated as citizens, not congregants. Clergy who cannot distinguish between parishioners in the pews and the audience at a government meeting need to be reminded of this difference. The decision to attend a board meeting is not a decision to attend a church.

Justice Kennedy's Treatment of the Coercive Aspects of Town Prayers

Perhaps even more unconvincing and undeveloped is Justice Kennedy's response to the plaintiffs' contention that the prayer practice adopted by the Town of Greece is inherently coercive in nature because attendees will feel pressure to conform and participate in this religious exercise. Here, he argues that a town's practice must be understood in terms of the historical tradition of having legislative prayers, a tradition recognized and upheld in Marsh. But, as even Justice Kennedy curiously concedes, there is almost no evidence in the record establishing a long tradition of state-sponsored prayer at local government meetings. And this lack of tradition makes sense because, as noted above, Marsh is distinguishable insofar as citizens have no right, opportunity, or expectation to participate in state legislative or congressional sessions or to petition their representatives from the visitors' gallery the way they do at the local government level. Since passive spectators at state legislative and congressional sessions are not petitioning government, they could hardly complain that they feel compelled to join in state sponsored prayer out of concern that their petitions would be denied. Active participants at local government meetings, to the contrary, are attempting to influence their representatives and will be subject to pressure to conform to avoid alienating the very decisionmakers they are addressing.

Justice Kennedy offers precious little by way of substantial response to this crucial distinction. And what he does offer is so unrealistic, it is hard to accept that he truly believes these arguments himself. He begins this part of his opinion with the unlikely assertion that "the principal audience for the[] [Town Board] invocations is not, indeed, the public but lawmakers themselves." How can that be his interpretation of the facts? The individual clergy member offering the prayer generally faces the public audience with his or her back to the lawmakers. The clergy member asks the members of the public to stand, bow their heads, and join in prayer. The public -- obviously understanding the prayer as being directed at them -- stands and responds to the prayer giver's requests. The prayer giver often asserts that the prayer is being made on behalf of the audience and the community. Yet in Justice Kennedy's understanding, these prayers are primarily directed to the lawmakers and not to the public.

What's more, Justice Kennedy believes that there is a sharp distinction between the town board members asking the audience to stand and pray, and the invited clergy member who is offering the prayer telling the audience to do so. To us, this distinction has no significant relevance to the key question, namely, whether audience members reasonably feel pressure to join in state-sponsored prayers lest they offend or alienate the town board decisionmakers they will be petitioning a short time later. If a judge, employer or teacher were to invite clergy to offer a prayer in court, on the job, or at school, respectively, and then invited all persons in attendance to pray, the coercive nature of the circumstance would not be significantly mitigated by the fact that the prayer directive came from the invited clergy rather than the judge, employer or teacher.

Justice Kennedy also suggests that the fact that coercion may be intrinsic to these contexts is constitutionally insignificant as long as board members do not explicitly assert that they will take a person's refusal to pray into account in deciding matters before them, and so long as the citizens have no direct proof that board members have discriminated against residents who decline to pray. But basic constitutional law principles recognize that power is subject to abuse, including (perhaps especially) at the hands of petty functionaries. We structure many aspects of our system prophylactically to minimize the opportunities for abuse, particularly First Amendment abuse. Unfortunately, we simply cannot share Justice Kennedy's almost naïve sense that "should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy." For better or worse, in the real world, culture wars, friction between members of different faiths, and acrimony and retribution (whether conscious and unconscious) between religious and non-religious individuals and groups is very real. There is a reason Establishment Clause claims are sometimes brought by John or Jane Doe litigants.

Contested Views Regarding the Religious Nature of Prayer and the Relative Coercion in Different Settings

Most surprising and problematic of all is Justice Kennedy's seeming understanding of the nature of prayer and its meaning to the religious individual. To Justice Kennedy, public prayer at a town board meeting does many things and serves many functions, most of which are largely ceremonial in nature. He never suggests or even really acknowledges that prayer might be something else-that it is a personal, meaningful expression of the individual to G-d. But for many Americans that is precisely what prayer is, and its expression in a public meeting does not alter its fundamental nature. Indeed, the reason so many of the prayers offered before town board meetings in Greece are explicitly sectarian is that the person offering the prayer understands prayer as a meaningful communication to G-d and an expression of heartfelt faith.

Justice Kennedy's dismissal of the impact of these prayers on members of minority faiths or those who are not religious can be reasonably understood only if one accepts a watered-down definition and understanding of prayer. It is only in this sense that he can argue that if religious minorities and nonreligious citizens remain in the meeting room and stand along with everyone else for the prayer, no serious harm is done. He believes that their conduct would not "be interpreted as an agreement with the words or ideas expressed." But this argument presupposes that these town board prayers do not serve the function of true prayer, and that the people standing and bowing their heads are not engaging in a meaningful religious act. If the majority of individuals participate in these collective prayers as authentic expressions of prayer, of course a nonreligious individual or member of a religious minority engaging in the exact same behavior would necessarily be perceived as engaging in a similarly authentic religious exercise. Why would anyone interpret that individual's conduct differently?

In the past, Justice Kennedy has been more attuned to the real-world position in which non-majority persons find themselves when dealing with religion in the public sphere. Justice Kennedy wrote the majority opinion in Lee v. Weisman, where the Court struck down state-sponsored prayers at public middle and high school graduations. His sensitivity to context and to the coercive burden on students in that case stands in stark contrast to the ungrounded analysis that permeates his opinion in Town of Greece. Justice Kennedy asserts that the offering of state-sponsored prayer at a middle school or high school graduation is more coercive than the offering of prayers at a town board meeting. But in doing so, once again, his analysis misses the crux of the coercion argument in Town of Greece. Because they have completed their studies, graduating seniors at public school graduations no longer risk the exercise of discretionary authority by teachers and principals who might be offended if students refused to stand during a benediction. They are no longer subject to the control of school authorities. Residents seeking to influence town board members on one or more matters involving their personal needs and interests experience far greater coercion because they are subject to the discretionary decisions of the board that has orchestrated the offering of a prayer in which they publicly refuse to participate.

Nor was the challengers' claims in Lee stronger than those raised in Town of Greece simply because minors were involved in the former case. While it may be true that adults are more capable of standing their ground than are children, pressure is pressure whether or not someone gives in to it. For that reason, the fact that many adults might simply refuse to participate in town prayers and risk the alienation of the board-rather than sacrifice their religious principles-does not make their First Amendment claims any the weaker; coercion is impermissible because it violates the Constitution for the state to force someone to choose between adherence to one's religious beliefs or the risk of harm or loss, without regard to how the victim responds to the illicit pressure.

It seems that the world -- or at least Justice Kennedy's view of it -- has changed since Lee was decided.