Latest Scholarship

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.

April 25, 2014

What Will the Supreme Court Do in the False Campaign Speech Case, Susan B. Anthony List v. Driehaus, Argued This Week?

Cross-posted from Justia's Verdict.

In the space below, I offer analysis of a campaign regulation case in which the U.S. Supreme Court heard oral arguments this week, Susan B. Anthony List v. Driehaus. The case involves a challenge brought by a pro-life organization, the Susan B. Anthony List (SBA List), against an Ohio statute that imposes criminal liability on persons or organizations that make "a false statement concerning a candidate [for any public office] knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination or defeat of the candidate." The lower appellate court in the case, the United States Court of Appeals for the Sixth Circuit, held that SBA List did not present a "ripe" controversy concerning the constitutionality of the statute, and thus dismissed the lawsuit for lack of jurisdiction. The Supreme Court will likely focus its ruling on the "ripeness" question as well, but-as I will explain below-questions of standing and ripeness are often tied up in complicated ways with the substantive question of whether a plaintiff has a winning constitutional claim on the merits.

How the Ohio Law Works and the Lower Court's Rejection of SBA List's Challenge

A little background on the way the Ohio statute operates is necessary to understand the issues before the Court. Under the Ohio law, if someone-anyone-complains that somebody has made a false statement within the meaning of the statute during an election campaign, a panel of the Ohio Elections Commission (an independent agency charged with implementing the State's campaign regulations) must make a prompt, preliminary determination of whether there is "probable cause" (i.e., some reasonable possibility but not necessarily a 50+% likelihood) to think that a statutory violation has occurred. If no probable cause is found, the Commission takes no further action. But if a panel concludes that probable cause exists, the case is referred to the full Commission, which then is charged with determining whether "clear and convincing" evidence supports the conclusion that a violation has in fact occurred. If it so finds, the Commission refers the case to the state prosecutors, who then have ordinary prosecutorial discretion (possibly overseen by the State Attorney General) to initiate a prosecution or not. If a prosecution is brought and a conviction (presumably requiring proof of guilt beyond a reasonable doubt) is obtained, a penalty (in the form of a fine or jail time) is imposed.

In the 2010 election cycle, SBA List sought to put up a billboard criticizing then-Congressman Steven Driehaus, who was running for reelection. The billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Driehaus filed a complaint with the Ohio Commission, and a panel of the Commission found probable cause to suspect a violation of the statute and thus referred the Complaint to the full Commission. SBA List then filed suit in federal court challenging the Ohio scheme. After Driehaus lost the election, he withdrew his Commission complaint, so the full Commission never assessed the billboard message, and nothing involving this incident was ever referred to a prosecutor. But SBA List continued to press its federal lawsuit, asserting that it intended to engage in substantially similar conduct in the future and that Driehaus may run for Congress again. Driehaus then moved to Africa to work for the Peace Corps, and has not indicated any present intention to run for office again anytime soon.

Based on this record, the Sixth Circuit ruled that SBA List no longer has a ripe claim against the Ohio statute, for two reasons. First, there is insufficient reason to think that anyone will complain about SBA List under the statute in the future. As the Sixth Circuit put it, "SBA List does not say that it plans to lie or recklessly disregard the veracity of speech. Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat-that [Obamacare] allows for taxpayer-funded abortions-is facially true." Because SBA List plans to speak only the truth, reasoned the Sixth Circuit, it hasn't shown that it is particularly likely to get ensnared by a statute regulating falsity.

Second, even if the Ohio statute is likely to be invoked against SBA List again, no criminal prosecution-let alone conviction-is sufficiently likely to ensue. Given all the steps that must precede conviction, it is simply too speculative to think that SBA List is in any real danger of having criminal sanctions imposed upon it.

What Will the Supreme Court Do?

While it is likely we cannot know the outcome of this case for a few months, a few observations are in order even now. Most important, the Supreme Court will probably reverse the Sixth Circuit. I say this in part because the Sixth Circuit's reasoning is open to serious question, and more so because the Court decided to grant review in the first place. The Sixth Circuit's opinion is unpublished, which means it can do no mischief in other lower court cases, yet still the Court granted review. To me that suggests a strong desire (by at least four Justices-the number needed to grant review) to correct error by the Sixth Circuit.

Why do I find the Sixth Circuit's reasoning troubling? Let us take the Sixth Circuit's first point, that SBA List is unlikely to be burdened by the Ohio law because SBA List disclaims any intent to lie. As Chief Justice Roberts sarcastically observed at oral argument: "[S]urely you don't expect them to come in and say, 'I'm going to say something totally false and I'm afraid I might be prosecuted for that." To put the Chief Justice's point more generally, a person challenging a statute for unconstitutionally restricting his speech should be able to do so provided he professes a specific intent to engage in speech that is reasonably likely to trigger punishment, regardless of whether punishment is actually warranted under (one interpretation of) the terms of the statute.

The second rationale of the Sixth Circuit-that criminal sanction is a remote possibility because of the number of steps involved-is on firmer ground, and is actually supported by the reasoning of recent ripeness cases by the Court such as Clapper v. Amnesty International USA (although I acknowledge that the 5-4 ruling in Clapper itself is in some tension with other cases, where the fact that there are multiple steps in a causal chain leading to enforcement is found not to be an insurmountable barrier to federal judicial review). But in any event, this "remote possibility of actual prosecution" argument it is undercut significantly by SBA List's assertion in its briefs that a probable cause determination by a panel of the Commission, all by itself, inflicts injury, whether or not any criminal prosecution is later brought. By making the probable cause finding, the government causes SBA List to suffer reputational injury, and harms the campaign that SBA List may be waging in favor of or against particular candidates. Because, SBA List argues, a probable cause determination was found with respect to the Driehaus billboard, it will also likely be found with respect to "substantially similar" speech that SBA List intends to utter. This kind of injury is cognizable and may indeed be ripe (as the Court seemed to suggest in Meese v. Keane), but as I will explain later, it raises its own complexities.

What Should the Court Do?

I suggested above that I expect the Court to reverse the Sixth Circuit. But is that the right result? Perhaps not. Though the Sixth Circuit's reasoning was flawed, its result may nonetheless have been correct. Even assuming that a probable cause determination by a panel of the Commission can cause injury that may be redressed in a federal lawsuit, there remains the question of precisely what speech SBA List plans to utter that might trigger such a determination. As the lawyer for Ohio pointed out at oral argument, the only forward-looking contention in SBA List's complaint is its statement that "it plans to engage in substantially similar activity in the future, but they don't identify any other candidates" whom they intend to criticize. If this is true, the vagueness of this statement should be a problem for SBA List. In past cases, the Supreme Court has said a generally stated intention to engage in some activity, without more details about the when, where, and how, can create ripeness problems. So, when a scientist who wanted to challenge under-enforcement of the Endangered Species Act contended that he desired to study a species that might be threatened by the under-enforcement, without indicating precisely where, when, and how he planned to conduct the study, standing/ripeness was denied (in Lujan v. Defenders of Wildlife). And when a leafletter who was punished for distributing anonymous leaflets criticizing a Congressman sued to enjoin future enforcement of the law because he intended in subsequent elections to distribute in the same place "similar anonymous leaflets" even though the particular Congressman who was the target of the prior leaflet had since left Congress for a judicial post, the Court said (in Golden v. Zwickler) there was not a ripe controversy because the likelihood of a future conflict between the leafletter and the statute was too uncertain.

To me, the facts of these cases-and the plaintiffs' vague statements of future intentions-sound somewhat like SBA List's assertions regarding "substantially similar" speech in which it plans to engage. What, precisely, does "substantially similar" mean, especially in a setting where SBA List in 2010 did not criticize all Congresspersons who voted for Obamacare in 2010, but rather (as Ohio's lawyer pointed out in oral argument) only a small subset of them-Democrats who first opposed but then voted for the healthcare law? Since Mr. Driehaus himself is not running again anytime soon, it remains to be identified against whom SBA List plans to speak out.

I found it interesting that the Justices didn't seem to focus on these points when the Ohio lawyer mentioned them. The liberal Justices generally don't agree with high standing and ripeness hurdles, so they can be expected to be open to SBA List's arguments. But the conservative Justices-who in other cases do set the standing/ripeness bar pretty high-should have been interested in this line of argument advanced by Ohio's counsel. Maybe when the opinion issues they will embrace this route, or maybe they will find ripeness because they are so troubled by the Ohio law and want to permit the federal courts to adjudicate its merits.

A Few Observations on the Merits

Let us turn, then, to the merits, although any remotely complete discussion of the First Amendment claims here will require one or more additional columns. For starters, it is somewhat troubling to me that a panel of the Commission found probable cause to think a billboard stating that Congressman Driehaus voted for taxpayer-funded abortions was false. Incomplete, no doubt. Misleading, perhaps. But factually false? Even granting that executive regulations under Obamacare (and the Hyde Amendment law that may or may not apply to the Affordable Care Act) limit taxpayer-funded abortions to those involving rape, incest, or life of the mother, it's hard to say the law (for which Driehaus voted) does not, technically, involve some (albeit very limited) taxpayer-funded abortion procedures. And the concept of criminal falsity, to have any chance of surviving a First Amendment challenge in an election contest, will have to be assessed technically.

I should conclude by linking the ripeness and First Amendment merits questions. It may be that SBA List's best argument for ripeness focuses on the injury caused not by (somewhat speculative) prosecution, but by the specter of a probable cause determination, as discussed above. But if this is so, then-when the case is remanded to the Sixth Circuit-arguably the only ripe question is whether the probable cause aspect of Ohio's law (rather than the imposition of criminal sanctions themselves) violates the Constitution. And although an argument on the merits can be made that a state Commission's power to make a probable cause finding in a campaign-speech setting is itself problematic under the First Amendment, that seems a somewhat tougher argument than one challenging the imposition of criminal liability (because if the government is not imposing fines or jail terms, but only uttering its own view that someone's speech is or may be false, the government can claim to be more of a speaker itself). In other words, if the relevant injury is not the (real) threat of criminal liability, but the reputational harm caused by a government's (preliminary) characterization of possible falsehood, then the First Amendment challenge is itself harder to maintain. I will likely explore more of these merits questions in later columns.

April 11, 2014

The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor

Blog entry cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.

 

February 28, 2014

Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side

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

In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act's requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn't yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs' religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)

The "Liberal" and "Conservative" Take on the Two Lawsuits

Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.

We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs' claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs' claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.

Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women's rights concern. For them, protecting religious liberty in a situation that creates even small risks to women's health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.

But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.

The Dismissive Attitude of Opponents to the Religious Claimants in Each Case 

Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs' rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That's the way the system works. Learn to live with it.

But when we ask "What can they possibly be complaining about?" in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager's religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.

The Inconsistency in the Treatment of Risk-Based Arguments

Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer's worry can hardly be characterized as mere speculation.

Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants' refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants' not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.

We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.

Inconsistency in the Treatment of Attenuation and Misattribution Arguments

A separate criticism of plaintiffs' claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of "scandal." Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit's publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.

A similar problem with misperception-indeed, we suggest an arguably more powerful example of it- also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a "we" prayer rather than an "I" prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one's head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.

Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government's requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.

We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don't hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.

There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs' claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.

December 20, 2013

The Question of Disparate Speech Impact in the Supreme Court’s Upcoming McCullen v. Coakley Case

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

Today we analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics.  The statute in question makes it a crime to "enter or remain on a public way or sidewalk adjacent to" a reproductive rights clinic within 35 feet of "any portion of an entrance, exit or driveway" of the facility.  The statute exempts from this prohibition persons who are entering or leaving the facility, employees or agents of the facility acting within the scope of their employment, emergency and utility personnel doing their jobs, and people who are using the sidewalk or public way to reach a destination other than the facility.  The law's challengers-individuals who seek to communicate with women who may, at that place and moment, be contemplating abortion-allege that the law violates the First Amendment.  The challengers lost in the U.S. Court of Appeals for the First Circuit, and in June the Supreme Court granted review.

The case raises many important constitutional issues.  Indeed, this is not the first time the Supreme Court has agreed to review, under the First Amendment, judicial or legislative attempts to regulate protest activity taking place outside medical facilities and abortion clinics, and among the questions presented in McCullen is whether the Court should overrule Hill v. Colorado, one of its important earlier cases relating to these matters.

Content/Viewpoint Based vs. Content-Neutral:  A Crucial Distinction

In the space below, we do not attempt to address all the significant constitutional issues the McCullen case presents.  Instead, we limit ourselves to the relatively confined question of whether a law like this one should be characterized as a "content-neutral" regulation of the "time, place or manner" of speech or conduct, or instead whether the law should be viewed as one that discriminates on the basis of the content or viewpoint of speech (or speakers).

This question is profoundly important, because under well-established First Amendment doctrines, if a law is content- or viewpoint-based, it is subject to the strictest judicial scrutiny, and will almost always be struck down. Content-neutral regulations of speech, by contrast, are reviewed under a more lenient, intermediate level of review and are often, although not always, upheld.  (We take no position in this column on how the Massachusetts law in question, or other situations we examine, should fare under the intermediate scrutiny test.)

Usually the Court determines whether a law is content- or viewpoint-based by looking at how the law is written.  For example, a law that prohibits all picketing in an area but exempts labor picketing is content-based, because the exemption from the regulation is defined on the face of the statute in terms of a particular topic or subject matter of speech.  Similarly, a law that explicitly makes it a crime to burn a flag "in order to show contempt" for it, but that does not prohibit burning as a means of respectfully disposing of a damaged flag, would be viewpoint-based. These laws would be subject to very high scrutiny.

Formal Neutrality and Disparate or Discriminatory Effect

The plaintiffs in the Massachusetts case would have to concede that the law they are challenging does not, as a formal matter, single out or even mention any identifiable speaker or particular subject or viewpoint of speech. The plaintiffs argue, however, that this law should be understood as a content- or viewpoint-discriminatory regulation because by restricting speech in a particular place, in front of reproductive health clinics, the state is burdening only one side of a debate. They contend that although the law may be neutral on its face, it is discriminatory in its effect.  And this discriminatory or disparate impact should lead courts to be skeptical of the law and strike it down for that reason.

In making their argument, the plaintiffs rely on the commonsense fact that speech in front of reproductive health clinics is overwhelmingly, if not exclusively, speech that is opposed to abortion.  As their brief argues:  "Massachusetts has . . . taken care to frame an Act that as a practical matter affects speech on only one issue-and, indeed, on only one side of that issue.  The Act's lack of generality or neutrality is demonstrated both by the specific locations at which it applies and by the specific speakers whom it affects." (Some of the amicus briefs in favor of the challengers also argue that the law should be viewed skeptically because the legislature's actual motive was problematic, but we defer discussion of so-called motive analysis under the First Amendment to another day, focusing here on whether the disparate effect of a law justifies treating it as a disfavored content- or viewpoint-based law.)

We do not deny that a law that singles out particular places for speech restrictions may often have a disparate effect on speech and debate.  People on one side of a debate often use particular places to express their message much more frequently and aggressively than do people on the other side(s) of the same debate.  But allowing courts to look behind the actual content of the statute and determine what standard of review to apply based on disproportionate effect could radically undermine settled doctrine, require the implicit overruling of many judicial decisions, and lead to the invalidation of laws that are already on the books, or that are likely to be enacted without controversy, because they are considered to be content-neutral regulations.

How Disparate Effect Analysis Would Disrupt the Case Law and Statutory Landscapes

The reality is that many of what today are generally considered to be content-neutral speech regulations were adopted in response to a problems created by identifiable classes of speakers with distinct messages or viewpoints. Under current law, we respond to that reality by requiring a statute to apply to all would-be speakers, not just those whose speech activity raised the legislature's consciousness about the need for regulation. Thus, a limitation on residential picketing, or a buffer zone in front of medical clinics, may be created in response to anti-abortion protests, but the laws responding to this problem must, as a formal matter, apply to labor picketing and other protests as well.   If the Court were to go beyond this current insistence on formal content- and viewpoint-neutrality, and begin subjecting all laws that have predictable disparate effects to the strict scrutiny that applies to content- and viewpoint-based laws, then  significant past Court cases  might require reconsideration.

For example, in the seminal case of United States v. O'Brien, the Court upheld a law that made it a crime to destroy government-issued draft cards, even if the cards were burned for expressive purposes as a form of political protest.  Could anyone doubt that the overwhelming majority of people who destroyed draft cards (and who were thus subject to the law) did so in order to express a particular anti-draft, anti-war, or anti-government point of view?  Or take Frisby v. Shultz, a case in which the Court upheld a ban on residential picketing, as applied to protesters who wanted to picket outside an abortion doctor's home.  Certainly, this ban had meaningful effect only on people expressing critical messages in front of a resident's home; people don't tend to picket in front of your house if they like what you're doing. Honesty compels the acknowledgement that the ban on residential picketing was prompted by, and in the real world most directly affected, anti-abortion activists.

Also, a disparate effect analysis might very well require the invalidation of other laws that current doctrine would tend to permit. To give but two (out of many possible) examples, facially neutral buffer zones around foreign embassies might be unconstitutional because pro-embassy supporters obviously tend to be less affected by (and less likely to be prosecuted under) such regulations than anti-embassy protestors.  And virtually all laws that try to regulate activity near funeral proceedings would be open to question. Over forty states have recently adopted such regulations. It is common knowledge that the vast majority of people today who want to assemble and demonstrate near funerals are members of an identifiable religious group with a distinctive, somewhat bizarre, and extremely unpopular message and point of view.

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

In addition to requiring the overruling of some past cases and the invalidation of laws that are currently deemed constitutional, a change in doctrine emphasizing disparate impacts would add considerable subjectivity and indeterminacy to free speech cases. There will always be questions about both the extent of a predictable or expected disproportionate impact that is created by a law, and just how much of an impact is required to compel a conclusion that the law is content- or viewpoint-based.   For a court that eschews subjective standards (as this Court does, as evidenced by its unwillingness to recognize free exercise of religion claims against neutral laws of general applicability), it is hard to understand why increasing subjectivity and indeterminacy would be appropriate here. Free speech doctrine is complicated enough without blurring established, albeit complicated, categories.

Further, a Supreme Court decision holding that a locational regulation will, by virtue of disparate effects, be considered content- or viewpoint-based and thus trigger strict scrutiny would be anomalous and hard to reconcile with the way in which the Court considers disparate impact in other areas of constitutional law.  For instance, we can compare free speech doctrine to equal protection doctrine.  Under the Equal Protection Clause, government cannot discriminate against racial minorities (just as, under the First Amendment, it cannot discriminate against particular viewpoints.)  But in the equal protection context, a law that is formally race-neutral on its face, but that generates predictable disparate impacts along racial lines (such as a requirement of a high school diploma to be eligible for a government job) is not subject to strict scrutiny, notwithstanding that, in the real world, it tends to disadvantage racial minorities more than white persons. The Court, in the famous Washington v. Davis case in 1976, rejected strict scrutiny based on disparate racial impact, to avoid a slippery slope that would undermine the validity of far too much legislation. Think of all the laws-like flat sales taxes and bridge tolls-that have predictable disproportionate effects on poor persons, and thus on racial minorities (because of the unhappy correlation that persists between the two). All such laws would be subject to strict scrutiny under a disparate impact approach.

And in one important sense, the case for strict scrutiny for racially disparate laws is actually stronger than it is for laws that generate disparate speech effects. In the equal protection setting, if a racially disparate law is not subject to strict scrutiny, it is subject to a very deferential rationality review, which in many cases operates like a rubber stamp upholding the law. In the free speech arena, however, even laws that are not considered content- or viewpoint-based are still subject to a meaningful intermediate level of judicial scrutiny that often has real bite to it that can result in the invalidation of the law.

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

Moreover, a focus on disparate speech effects would create a range of doctrinal conundrums under the First Amendment itself.  Content-neutral regulations of speech serve important social functions. A particular location may be a very useful place to express a message, but it also may be a place where speech imposes serious burdens on third parties (including particularly vulnerable audiences such as patients at medical clinics or mourners at funerals), such that the speech needs to be regulated.  A multi-factor balancing test (the intermediate standard that currently governs content-neutral laws) may be the best way to take all of the relevant values and interests at stake in these cases into account. Yet the Court's heightening of review based on disproportionate impact would tend, in effect, to read the state's interest in restricting speech out of the picture because almost nothing passes strict scrutiny.

Another problem with increasing the rigor of the Court's review of locational or other regulations because of their foreseeable disparate effects on speech is that this approach would send conflicting and confusing messages to lawmakers. On the one hand, under the intermediate scrutiny that is currently applied, content-neutral speech regulations are not supposed to burden substantially more speech than is necessary to further the state's interests. This suggests that content-neutral laws should be drawn narrowly to cover as limited a time, place, or manner of speech as possible to serve the state's goals. But if a disproportionate effect approach makes narrow laws vulnerable to receiving heightened review precisely because their narrowness generates disparate effects, then legislatures are going to broaden laws as a matter of course:  The broader the scope of the law, the harder it is to find that the law disproportionately burdens any particular subject or viewpoint of speech. Thus, with courts emphasizing disproportionate effects, the state is forced to walk a constitutional tightrope and may violate the First Amendment if it deviates even a bit in either direction; if the state adopts a narrow law, the likelihood increases that the law will receive rigorous review because the law disproportionately burdens one subject or viewpoint of speech more than others, but if government broadens the law, the law is more likely to be struck down under the intermediate scrutiny test that will apply, because the law will inevitably restrict more speech than is necessary to further the state's interests. This means that a focus on disproportionate speech effects will do more than make judicial decisions in this area more subjective and indeterminate; it will also undermine legislative discretion and flexibility in drafting and adopting laws.

We are not suggesting that there are no possible answers to any of these seeming dilemmas, or that disparate effect should never factor into any well-conceived First Amendment analytic framework.  Rather, what we are saying is that before the Court begins to travel down this road, it needs to think carefully not just about clinic-access cases, but also about a much larger swath of free speech and larger constitutional doctrine.

November 8, 2013

A Breakdown of this Week’s Supreme Court Oral Argument in the Town of Greece v. Galloway Case Involving Prayer at Town Board Meetings

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

 

In the space below, we offer our analysis of the oral argument that was held two days ago at the U.S. Supreme Court in this Term's most important case addressing the First Amendment's Establishment Clause, Town of Greece v. Galloway. The litigation involves a decade-plus-long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer. Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence. But since then, the Town has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayers over the Board's public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation. The Town asserts that anyone-followers of any religion, agnostics, and atheists alike-can request to offer an invocation, and that it has never turned down any request. But in practice, Christian clergy have given nearly all the prayers since 1999, and they have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

Some Background on the Legal Theories in Play

As we explained in an earlier column, the U.S. Court of Appeals for the Second Circuit invalidated the Town's practice, finding that the prayers, in context, were best seen as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. In our earlier writing, we agreed with the Second Circuit that the Town's practice violated equality norms that are inherent in the Establishment Clause insofar as the Town was sending messages of inclusion and exclusion. This was especially true, we noted, because the Town's policy focused on majoritarian sects-the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce's directory-and thus effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.

We also argued that, even apart from equality-based arguments, the Town's policy violated the Establishment Clause's prohibition on religious coercion. In particular, we argued that unlike prayers used to open legislative sessions at the state legislative level (one of which was upheld by the Supreme Court, largely on the basis of unbroken historical tradition, in Marsh v. Chambers), prayers that open local government meetings are very likely to pressure attendees to conform, primarily because the audience at city council meetings has a different role and purpose than the audience at sessions of the state legislature. Most of what a state legislature does involves the formulation and enactment of laws of significant breadth and scope that impact large groups and constituencies. By contrast, the work of a city council or board, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Often town councils and boards act as administrative tribunals in a quasi-adjudicatory capacity, hearing personnel grievances or land-use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions. While the people who attend a session of the state legislature are passive observers of the legislature's work, the audience at a city council meeting has a much more participatory role to play. Town residents attend council meetings to speak to, influence, and petition their government before it makes decisions that may significantly impact their lives. So in the setting of a city council meeting, citizens who wish to address the council are coerced to participate in any city sponsored prayers that are offered, since a failure to stand and bow one's head or otherwise join in the prayer would risk alienating the very political decision makers whom they hope to influence.

What Did the Oral Argument Reveal?

Against this background, what do we make of the oral argument that took place earlier this week? With the caveat that it is always dicey to make firm predictions about outcomes from the tenor of an oral argument, and recognizing too, that an hour-long argument will generally contain many more important exchanges than can be summarized in a short essay like this one, we think it may be helpful to focus on five aspects of the controversy that emerged on Wednesday.

First, there seemed to be some agreement among the Justices that the Town's policy is problematic because it does not cast a broader invitation net. From the more liberal side of the Court, Justice Breyer pointed out forcefully that the Town could have done a better job of reaching out to groups that were not Christian, or not even religious at all, to let them know that they were welcome to "appear and to have either a prayer or the equivalent if they're not religious." And the more conventionally conservative Justice Alito explicitly talked about the problems of limiting invitations to congregations that are located in town (a practice we criticized in our earlier writing), instead of including minorities who live in town but who attend houses of worship outside of town.

What this broad agreement means is that the challengers to the Town's policy may well win-in the sense that the policy as it currently operates cannot continue. But the question then becomes whether the victory will be limited to the concern about outreach, or will instead be more broadly focused on the problems with having prayers in this setting more generally, even if all groups are invited to participate.

That brings us to our second point: Justice Kennedy's likely take on the case. To win big-that is, to strike down or limit city council prayers in any significant way-the challengers will likely have to win over Justice Kennedy, the swing vote in this area of constitutional law. How will Justice Kennedy see things? It's hard to say, but interestingly enough, Justice Kennedy might have an easier time invalidating all prayers before city council meetings than he would invalidating "sectarian" prayers but leaving room for non-sectarian ones to continue, the latter position being the one advanced by the challengers and presented to the Court by the eminent law professor Douglas Laycock.

The position Professor Laycock asserted-which, again, would allow non-sectarian prayers but forbid sectarian ones-would seem to represent something of a middle ground, an option that might be thought to appeal to the "center" of the Court. And Professor Laycock pointed out that there is a long tradition of the use of inclusive, non-sectarian prayers in public settings. He observed that early prayers in American public arenas, while undeniably Christian, were not denominationally divisive because America was then a homogeneously Protestant nation. He mentioned, as well, that thirty-seven State legislatures and the U.S. House of Representatives give guidelines to clergy giving prayers in those chambers. And he reminded the Court that, in cases like this one involving local government, the U.S Court of Appeals for the Fourth Circuit has utilized a prohibition on sectarian prayers only that seems to be working out reasonably well.

While these arguments have substantial force, they may not persuade a sufficient number of, or the right individual, Justices. In particular, Justice Kennedy seems to be very resistant to having government engage in any oversight concerning the content of prayers. As Justice Kennedy put it, a line between sectarian and non-sectarian prayers "involves the State very heavily in the censorship and the approval or disapproval of prayers," and would "involve[] the government very heavily in religion." If Justice Kennedy does not believe that the Establishment Clause can require government to control the content of state-sponsored prayers in any way, however, and that no such line is workable, then Justice Kennedy will be forced to support either banning all prayers in this context, or allowing a free-for-all in which even aggressive proselytizing prayers that demand active participation and validation by audience members would have to be permitted. It appears from Justice Kennedy's questions that he would be more comfortable choosing one of these stark choices than accepting a distinction between sectarian and non-sectarian prayers.

In addition to the practical problem of Justice Kennedy's ostensible opposition to this argument, the sectarian/non-sectarian line has another flaw: It addresses equality-based concerns, but not really coercion-based concerns. Even if most religious groups would accept the generic content of nonsectarian prayers, those individuals who cannot participate in, or attend, such prayers as a matter of conscience are still pressured into conforming by the risk that their non-participation/absence will alienate the very decision makers they are trying to persuade.

A third point involves not the substance, but the timing, of the prayer that is offered. Justice Alito asked Professor Laycock why the separation in time between the opening prayer and the city government's active consideration of specific items before it does not diminish any coercive effect the prayer might have: Audience members who are made uncomfortable by the prayer can simply wait outside and then enter later in the town session when their business items are transacted. Justice Alito's question presupposes that the only part of the meeting where audience members would need to participate involves the board or council's hearing formal proposals or grievances-essentially when the board is acting as an administrative body or in a quasi-adjudicatory capacity.

But Professor Laycock effectively explained that he is also concerned about an earlier part of the public meeting agenda that is quite close in time to the prayers-what we would call the public-comment component, during which the council might consider whether legislative fixes to problems that are identified are needed. As Professor Laycock explained, people raise very personal issues during public comment; even allegedly legislative decisions often involve disputes between very small constituencies, or impact so few individuals that the distinction between legislative and administrative functions has limited meaning or utility in this local government context.

The fourth point we want to mention deals with neither the substance of the prayer nor its timing, but rather the persons to whom the prayer can be attributed. Justice Scalia made the argument that the Board members are citizens, and as citizens they should be able to invoke the deity before beginning serious governmental tasks. What he was suggesting, in other words, is that what looks like a public prayer might be better understood as a private prayer of persons who happen to be convening a public meeting. The problem with this characterization, of course, is that the Board members act in their official-not private-capacity when they invite people to offer prayers at official meetings where government business is being transacted. Consider an analogy: Would we ever think of saying that because Board members are citizens, and because citizens can hold political rallies and raise money, Board members can hold a political rally to raise money for their campaigns at the beginning of Board meetings?

Fifth, and finally, consider an observation that Justice Kagan made about the goal of the religion clauses of the First Amendment being to allow people in this country of different faiths to live harmoniously together. In particular, Justice Kagan worried aloud that when the Court lays down rules enforcing the Establishment Clause, people might see the Court as hostile to religion and get angry as a result. And this runs counter to the constitutional objective of having people live together in a religiously peaceful and harmonious way.

We understand Justice Kagan's concern, but we think there are powerful responses to it. For starters, protecting minority liberty and equality rights often risks an angry reaction from the majority. And protecting minority rights is frequently challenged as disturbing the harmony of the community. But harmony that exists on a foundation of hierarchy and coercion is not true harmony; minority silence in the face of discrimination and burdens on liberty should not be misconstrued as peace, so much as seen as an enforced and temporary cease-fire.

Moreover, if it is legitimate for the Court to take into account how its decisions are processed by the citizenry, the great majority of whom value religion, the way for the Court to avoid being misunderstood as being hostile to religion would not be to undercut the anti-coercion, pro-equality values of the Establishment Clause, but rather to more rigorously protect meaningful Free Exercise rights. If Free Exercise rights were taken seriously, it would be more difficult for the Court to be criticized as anti-religious.

Lastly, if the Court ignores the liberty and equality interests of religious minorities in the name of achieving harmony, it sends an unmistakable message to religious minorities: You cannot rely on the Constitution to protect your liberty and equality interests, and the only way to protect yourself against discrimination and coercion is to live in communities where there are a sufficiently large number of people who adhere to your faith so that you can protect yourselves politically. Such a message would create a "harmony" only by virtue of a religiously fragmented and balkanized society where people of different faiths do not live together in religiously integrated communities. By contrast, we feel that what enables people of different faiths and no faith to all live together in meaningful harmony is the knowledge that the Constitution requires government to recognize that everyone, regardless of their beliefs, is of equal worth and must be treated with equal respect.

September 13, 2013

Precisely How Much Academic Freedom Should (Does) the First Amendment Afford to Professors and Teachers at Public Schools?

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

In the space below, we analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit.  We are quite sympathetic to the thrust of the Ninth Circuit ruling, but we think that a more concrete and categorical framework for resolving academic freedom disputes needs to be fashioned, lest public schools and their faculties be embroiled in a great deal of time- and money-consuming litigation that will generate inconsistent and unpredictable results.

Some Background on the Demers Case

As is relevant here, the facts of the Demers case are pretty straightforward.  David Demers is a tenured member of the faculty at the Edward R. Murrow College of Communication at Washington State University, a large, public, research-oriented university located in Pullman, Washington.  While serving on a university committee charged with exploring possible changes to the way in which the Murrow College was organized and the way it should relate to other units of the University, Demers wrote and distributed a document called "The Plan."  The Plan was Demers's two-page blueprint for dealing with some of these issues of organizational structure and funding (and some other matters too).  Demers did not distribute The Plan to other members of the committee on which he served, but he did send The Plan to high-level administrators at Washington State, as well as to members of the media and others.  After suffering what he claimed were adverse employment actions, Demers brought suit against various members of the Washington State administrative hierarchy alleging that they had retaliated against him, in violation of his First Amendment rights, for distributing The Plan and the ideas contained in it.

The defendants denied that any action they ever took against Demers was in retaliation for his having distributed The Plan. They also argued that, in any event, The Plan was not protected speech under Supreme Court doctrine because it was written and circulated "pursuant to Demers's official duties."  The trial court ruled in the University's favor. On appeal, the Ninth Circuit reversed the trial court's decision, at least in part.

The Ninth Circuit's Decision That Garcetti Does Not Apply

The three Judges on the Ninth Circuit panel agreed with the University that "The Plan" was undertaken pursuant to Demers's official duties (even though he tried to characterize it as something he wrote and circulated in his private-person capacity) because it addressed much of the subject matter of the University committee on which he served, and because he sent it to, among others, University administrators who might have been able to act on it.  But the Ninth Circuit then definitively held that not all things that a public school academic employee writes and distributes in connection with his official duties are without First Amendment protection. In particular, the Ninth Circuit ruled that the complete-deference-to-the-government standard of Garcetti v. Ceballos-a 2006 United States Supreme Court decision-does not apply in the setting of public employees who are teachers and scholars.

Garcetti involved a memorandum written and publicly disseminated by a deputy district attorney alleging that a police search warrant affidavit contained problematic falsehoods and misrepresentations.  When higher-ups in the DA's office seemed to punish him for blowing the whistle in this way, he filed suit contending that he had been the victim of retaliation for his comments, in violation of the First Amendment.  The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Ninth Circuit in Demers held, building on language in some of the opinions in Garcetti and other cases discussing "academic freedom," that the Garcetti framework does not apply to "speech related to scholarship or teaching."  Instead, according to the panel, teaching and academic writing that are performed pursuant to the official duties of a teacher and professor should be governed by the two-part balancing test laid out by the Supreme Court in the pre-Garcetti case of Pickering v. Board of Education.  Under that test, the employee must show first that his or her speech addressed matters of public concern.  If this requirement is satisfied, then the employee's speech is protected from punishment if the employee's interest "in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Our Evaluation of the Ninth Circuit's Course of Action

We well understand why the Ninth Circuit decided not to apply the Garcetti approach to the university-professor setting across the board.  But we are troubled by the indeterminate, ad-hoc character of the Pickering balancing test, and we think that more categorical boundaries need to be identified in order to provide an appropriate structure for the litigation between schools and their academic employees that will likely ensue once Garcetti is found not to govern these disputes.

Let us begin by explaining why we think there is a strong case to be made that university professors deserve First Amendment protection for at least some of what they say and do, even when they do it on the government's dime and pursuant to their public-employment duties. It is always dangerous to identify certain classes of public employees who should enjoy more free speech rights than others, but we think that a distinctive protection for professors can be derived from a functional analysis of the jobs that universities are supposed to play in modern society.  We focus on two functions, in particular:

First, many universities play a unique role in our society in pressing beyond accepted wisdom to critique and expand our knowledge of the world.  Universities are committed to certain methodological principles, but so long as research is done within that methodological framework-which requires, among other things, comparison of theory to empirically verifiable phenomenon, rigorous logic, and the careful separation of premises from conclusions and correlations from causes, and attention and responses to counterarguments that have been made or are likely to be made against any particular thesis-universities are committed to going wherever the search for truth leads.

Second, universities serve as an independent source of values and authority and as such they operate as a check on government power-a function that is comparable to the ways in which the press or organized religion can serve as a check on government abuses or mistakes. University academics have blown the whistle on many instances of government error or overreach.  The difficulty with applying this argument to public universities, however, is that we would be asking the government to fund a check on its own authority. But the idea is not implausible. The basic notion is, after all, intrinsic to all the separation of powers; the legislature funds the courts, for example, which themselves serve as a check on legislative authority.

For these reasons (which largely explain some of the stray Supreme Court language, extolling the virtues of academic freedom, on which the Ninth Circuit relied in rejecting the applicability of Garcetti), we see potential room to carve out special protections for academic speech. But if a functional analysis helps make the case for special protections for university scholars, it also substantially undercuts the claim for academic freedom by elementary- and high-school teachers (which the Ninth Circuit also recognized albeit in dicta.)  Elementary and middle schools, of course, serve different purposes than universities.   The range of stakeholders is broader. More importantly, public-school education involves a mixture of values and cultural inculcation-that is, teaching children what society wants and needs them to accept-as well as the development in students of intellectual maturity, independence, and the ability to think for themselves.  And there is no consensus (the way that there might be a consensus on the purposes of research universities) on how that mix should work. As a result, there is a much shakier foundation for judicial review. And simply substituting judges' opinions on pedagogical issues for those of school boards or administrators seems troubling in principle and chaotic in practice.

Relatedly, elementary- and high-school teachers are not in the business of generating new knowledge; it's not part of their function. As a result, there is no functional need to promote free inquiry in the performance of their jobs. In a similar vein, high schools are not intended to serve as sources of values that serve a checking function on government.  And finally, operating the public schools is a traditional local governmental function. Community interests, values, and needs may differ by location. Democracy is responsive to local differences and concerns. First Amendment doctrine might have the tendency to universalize, homogenize, and nationalize public-school curricula and pedagogical decisions.

Because universities are so different from elementary and high schools in this regard, we think that the Ninth Circuit should probably have limited its holding concerning Garcetti's applicability (or non-applicability) to the research-university setting.  Even though the Ninth Circuit observed that the Pickering test must be attentive to context, we can foresee much mischief if an ad-hoc balancing test like Pickering's leads to a flood of lawsuits brought by elementary-school and high-school teachers who object to the pedagogical decisions made by principals and local school boards on first amendment grounds.

And even within the realm of the university, we wonder whether the Pickering formula is too open-ended, and likely to produce costly litigation that is so fact-specific that it cannot be resolved short of full-blown and time-consuming trials.  The Ninth Circuit does say that some deference to universities is owed in some settings, but not all lower courts will be clear about how much deference to afford, and free-speech review involving tests that demand indeterminate balancing may be an invitation to constitutional litigation by every scholar who disagrees with the evaluation of his or her teaching or scholarship.

A more categorical approach is greatly preferable. Various substantive decisions, as long as they are clearly communicated to the faculty so as to avoid any notice/due process problems, should be beyond the scope of constitutional review. (State legislatures or public universities may elect to subject these decisions to judicial review, but the Constitution does not require that they do so. That way, if review becomes problematic and unreasonably costly, it can be modified without changing constitutional doctrine.)

For example, universities should be free to determine their curricula, and also be free to prescribe precisely what particular classes should cover. Professors can be required to teach assigned classes, notwithstanding their subject-matter preferences. Universities can determine classroom hours, etc. If an economics professor decides instead to write literary criticism, the department can reject his work as unacceptable within the discipline in which he was hired to teach. The Supreme Court case of Arkansas Public Television Comm. v. Forbes suggests that judicial review under the free speech clause is inappropriate when government engages in functions that require the exercise of substantial editorial discretion.

Clearly, that reasoning applies to many content-neutral and content-discriminatory university decisions. And even a fair bit of viewpoint discrimination may be permissible. For example, to our minds it does not necessarily violate the First Amendment for a university to require balanced teaching on controversial subjects in the classroom, even if a professor would have a preference to be more polemical.

In the space of this essay, we cannot, of course, construct all the categories we think should be identified to guide and reform otherwise standardless judicial balancing, but we hope that Demers is the first step in the direction of that enterprise by lower courts.

 

June 7, 2013

What Should the Supreme Court do With Town Board Prayers in Galloway v. Town of Greece? A Liberty-Based Analysis That Bolsters the Second Circuit’s Equality-Based Ruling

By Professors Vikram Amar and Alan Brownstein for Justia's Verdict.

Last week the U.S. Supreme Court granted review in an important case involving the First Amendment’s Establishment Clause, Galloway v. Town of GreeceGalloway involves a decade-plus- long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer.  Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence.  But since then, it has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayer over the Board’s public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation.  The Town asserts that anyone—followers of any religion, agnostics, and atheists alike—can request to offer an invocation, and that it has never turned down any request.  But in practice, 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.”

As fellow Verdict columnist Marci Hamilton pointed out last week in her analysis of this case, the U.S. Court of Appeals for the Second Circuit (with esteemed Judge Guido Calabresi writing) invalidated the Town’s practice, finding that 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.  We agree with much of Judge Calabresi’s reasoning, but in the space below we offer additional reasons—ones we feel the Second Circuit did not adequately explore—to be skeptical about what the Town has been doing.

The Town of Greece’s Practice Does Implicate Religious Equality Values

Disputes about the recitation of prayers before town board or city council meetings implicate many values underlying the Establishment Clause. The Second Circuit’s opinion, which focused on the so-called endorsement test, spoke primarily in terms of religious equality.  And there are powerful equality-based grounds for challenging the town of Greece’s government-sponsored prayers. For these constitutional purposes, equality means not only equality in material benefits but also equality of status and respect. This has been clear since the Court declared in Brown v. Board of Education that physically comparable but separate public schools that are segregated by race violated the equal protection clause because of the message of inferior status they communicated to African-American children. When government bodies select leaders of majoritarian religions to lead sectarian prayers to open local governmental proceedings, while ignoring the beliefs of other citizens, the message of lack of worth and disrespect for minority religions and the non-religious would be hard to avoid.

To be sure, there is nothing intrinsically disrespectful about being asked to stand while prayers of a different faith than our own are being offered. Most of us have probably been asked to do so when attending a wedding, bar mitzvah or other religious event in the house of worship of neighbors and friends. In those situations, however, we are guests in the sanctuary of a different faith community.  As outsiders, we do not expect our different religious identities to be recognized. There is no pretense that the rituals being observed reflect our own religious commitments. But citizens of a town or city are not guests and outsiders at the public meetings of their government. They belong to the political community and, quite reasonably, resent being treated as strangers who are not being shown the same respect afforded to its favored members.

And the Town has been essentially discriminating against minority religious voices. By focusing on majoritarian sects—the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce’s directory—the Town effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.  Oftentimes, as in the area surrounding UC Davis, where we both teach law, religious practitioners may have an insufficient number of members to establish a congregation in their own town, and for that reason they worship in a congregation in a neighboring town.  But if each town used only a directory of congregations located within that town as the source of clergy to be invited to lead prayers at Board meetings, many religions would be left out.

Equality Is Not the Only Establishment Clause Value at Stake Here, and Town Councils Differ From State Legislatures

As powerful as the equality concerns in this case are, they should not cause us to overlook the important religious liberty concerns that are also raised in this dispute. Plaintiffs argued that the prayers at Board meetings were coercive, but the Second Circuit opinion, construing these arguments to be focused only on children, quickly rejected these claims in a footnote. Plaintiffs were adults, the court reasoned, and the prayers at the Town Board meeting here were no more coercive than the prayers offered at sessions of the Nebraska state legislature that the U.S. Supreme Court upheld against an Establishment Clause challenge in Marsh v. Chambers in 1983. We think the court was far too quick to dismiss these religious liberty concerns on the authority of the Marsh decision.

There are critical distinctions between city councils and state legislatures that produce very different kinds of audiences who attend the meetings of these different government bodies. Most of what a state legislature does involves the formulation and enactment of general legislation that impacts large groups and constituencies. There may be some narrow bills that address limited issues, but the majority of the state legislature’s work relates to laws of significant breadth and scope. By contrast, the work of a city council, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Land-use decisions impact individual neighbors and neighborhoods. Funding decisions may burden particular small constituencies. Often town councils and boards act as administrative tribunals in a quasi- adjudicatory capacity, hearing personnel grievances or land use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions.

Moreover, and related to these differences, citizens who watch the deliberations of the state legislature from the gallery are almost always passive observers of the government’s functions. They have no role to play in the legislative process. Citizens who attend city council meetings do so for very different reasons. Usually they are not passive witnesses attending the sessions to be better informed about government operations. They attend council meetings to participate in government by speaking to the Council during public comment periods. They want and expect to be seen and heard by the Council. Their goal is to influence decisionmakers, not to simply observe or monitor them. For that reason, the ability to address the Council in person is an important right of political participation.

Finally, outside of major metropolitan areas, there are stark difference between the size and format of state legislative chambers and sessions, and those of city councils. State legislators rarely know who is sitting in their legislative galleries. The size of the chambers and the number of legislators and visitors preclude any such knowledge or sense of familiarity.  Not so, in the small meeting rooms of a city council, where the physical proximity between the Council and the audience and the limited number of participants make it far easier for Council members to be aware of their audience.

Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council meetings. In the setting of a city council meeting, 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.

The Town of Greece provides a good illustration.  Citizens there who feel excluded and burdened by the Board meeting’s prayers have no good alternatives. They can try to arrive at the council session after the pledge and prayer have been completed—but they may stand out in a small council meeting room for doing so. It would be even more awkward to stay and recite the pledge and affirm their loyalty to our country, leave for the prayer, and then return after the prayer is over. Or they can sacrifice their religious liberty by agreeing to have someone appointed by the government pray in their name. Visitors sitting in the gallery at the state legislature experience no such vulnerability or pressure.

Why the School Analogy Doesn’t Undercut Galloway’s Liberty Claims

Some commentators and jurists point to the school setting and argue that it suggests that coercion-based arguments depend upon the malleability of the listener.  They read the school cases for the proposition that state-sponsored prayer is unconstitutional in the context of public schools only because children, on account of their age and maturity, are uniquely susceptible to indoctrination and the pressure to conform.  By contrast, adults attending city council meetings, it is suggested, should be capable of withstanding such compulsions. This argument is unpersuasive. The major problem with religious coercion is not that it may actually change people’s religious beliefs and practices. It is that when religious individuals defy the state’s coercive efforts, they suffer burdens and penalties for doing so. Religious coercion is as unconstitutional when it fails as it is when it succeeds.

Prayer in the public schools is distinctively problematic, but not just because it is directed at children. It is particularly dangerous because teachers and administrators have so much discretionary power over the students in their charge. Both students and their parents know that it is treacherous to alienate school personnel because retaliation is so easy to mete out and hard to prove.

Citizens attending city council meetings for the purpose of influencing the council’s decision confront a similar burden that does not dissipate with age or maturity. The decisions of a city council often involve substantial political discretion in weighing the competing concerns of relatively small constituencies. Citizens who refuse to join in prayers offered by clergy invited by the council risk overtly or subconsciously retaliatory rulings.

A Final, Particular Way in Which the Town of Greece’s Practice Offends Liberty

The Town of Greece’s approach to public prayer at issue in this case involves a particularly egregious affront to religious liberty. There are at least two kinds of prayers that an organization may use to begin a session or meeting.  In one kind of prayer, the speaker prays in his or her own name for G-d’s blessing to be given for the meeting and its participants. There is a religious liberty issue implicated here, in that individuals may feel that they should not be required to be present while a prayer is expressed. The weight of that burden may be somewhat mitigated, however, by the fact that many people do not experience the fact that someone else is offering a prayer for their well-being as a burden on their liberty—even if the person who is doing the praying is of a different faith.

But a far greater affront to religious liberty occurs when the second kind of prayer is undertaken.  In this kind of prayer, the speaker claims to be offering a collective prayer expressing the beliefs of the audience, a collectivity to which audience members are asked to acquiesce by standing or bowing their heads. The decision about when and how to speak to G-d, and the words one chooses in that expression, belong to the individual. It is an extraordinary intrusion into the religious liberty of the individual for the state to usurp those decisions. The state cannot tell people that as a condition to attending and commenting during a city council meeting, they have to delegate to the state the power to appoint someone to pray to G-d in their name.

This basic commitment to personal religious autonomy is the foundation of the American understanding of religious liberty. When colonial proponents of religious liberty argued that religious freedom was an inalienable right, they were speaking literally, not figuratively. It made no sense to suggest that a person could somehow surrender his relationship with and duty to G-d to a government official, or to anyone else for that matter. Throughout the Great Awakening and continuing on to the ratification of the Constitution, advocates of religious liberty insisted on the right of the individual to choose who would minister to his or her spiritual needs and lead him or her in worship. Established religions violated these principles of religious liberty—and thereby prompted the First Amendment—precisely because they employed the coercive power of government to influence the private judgment of the individual in matters of religion.

Coercive collective prayer at city council meetings undermines religious equality by discriminating against minority faiths. And it abridges religious liberty by insinuating the state into the individual’s relationship with G-d and compelling people to engage in prayer that lacks personal authenticity. The Constitution prohibits the state from engaging in such practices.