Podcast subscriptions, April 2020

Here is my list of podcast subscriptions as of April 2020:

Backstage Journal with Rhett Shull
The Bob Murphy Show
Bound by Oath
The Brion McClanahan Show
Cato Daily Podcast
Contra Krugman
Daily Audio Bible
Grammar Girl
Lexicon Valley
The Libertarian Podcast
Make No Law
Part-Time Genius
RadioLab Presents: More Perfect
Serial
Short Circuit
This American Life
The Tom Woods Show
The Way I Heard It with Mike Rowe
The Week in Review at Abbeville Institute

Is this man a terrorist?

Many people across my Facebook feed are quick to call Christian pastor Josh Feuerstein a terrorist for a video he posted to his Facebook page back in July:

In case the video gets taken down, here's what Feuerstein said:

Planned Parenthood has hunted down millions and millions of little innocent babies, stuck a knife into the uterus, cut them, pulled them out, crushed their skull with forceps, ripped their body apart, sold their tissue, and threw them bleeding into a trash bin.

I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life.

This is pretty detestable stuff. But I don't think Feuerstein is a terrorist. In fact, I think his speech is probably protected. Let's review a little history...

In 1966, the NAACP ran meetings in Mississippi to organize protests and boycotts against white-owned businesses. The NAACP "store watchers" wrote down names of blacks who violated these boycotts. Names of boycott violators were read aloud at meetings and published in a local black newspaper. At one meeting, Charles Evers, the Field Secretary of the NAACP, stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."

This was a direct threat aimed by an NAACP official toward specific blacks who had been named, listed, and published as boycott violators. This is a much more direct threat than Feuerstein's video posted above. Yet the Supreme Court found that the store watchers' actions, and Evers' speech, was protected.

Unless speech is directed to inciting, and is likely to incite, imminent lawless action, it's protected by the First Amendment. It would be very difficult to argue that a Facebook video (posted last July) meets this standard. The mere advocacy of violence is not enough. No, in my opinion, this is not terrorism. Rather, it's very possible that this is protected speech. And yes, I'd stand up for his right to say these abhorrent things. That doesn't mean I agree with him.

Law in Plain English: Reed v. Town of Gilbert, Arizona

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Reed v. Town of Gilbert, Arizona

Argument: TBD (Aud.)

Click image to visit ADF website

Background: Good News Community Church placed several signs around the area of its church announcing the time and location of its services. The Town of Gilbert, Arizona notified the Church that its signs were violating Gilbert's sign ordinance because the signs were displayed outside the statutorily-limited time period. The ordinance required that signs could not be erected without a permit, but that three categories of signs were exempted from the permit requirement: 1) temporary directional signs relating to qualifying events (no greater than six feet in height and six square feet in area; only to be displayed for 12 hours before and one hour after an event; not placed in the public right-of-way); 2) political signs (up to 32 square feet in size; erected at any time, but taken down within ten days after an election; may be placed in the public right­-of-way); and 3) ideological signs (not limited in time or number; may be placed in the public right-of-way). The district court found that the ordinance was not a content-based regulation; was a reasonable time, place, and manner restriction; and (on remand) did not favor some noncommercial speech over other commercial speech. The Ninth Circuit affirmed.

Issue: The question before the Court is whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs.

Holding: In a 9-0 decision, the Supreme Court ruled that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

Law in Plain English: Elonis v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Elonis v. United States

Argument: Dec 1 2014 (Aud.)

Background: After being fired from his job, Anthony Elonis made several posts on Facebook threatening former co-workers, his wife (who had a protection from abuse order against him), and federal law enforcement officers (who had visited him earlier that day to ask about his previous posts) (click here to read some of Elonis's threats). At trial, Elonis was convicted under 18 U.S.C. § 875(c) for "transmit[ing] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injury the person of another ... " The Third Circuit affirmed, finding that Elonis's Facebook threats were not protected by the First Amendment if a reasonable person would regard the statements as threatening.

Issue: The questions before the Court are (1) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Holding: In an 8-1 decision, the Supreme Court ruled that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.

Law in Plain English: Williams-Yulee v. The Florida Bar

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Williams-Yulee v. The Florida Bar

Argument: Jan 20 2015 (Aud.)

Background: In September 2009, Lanell Williams-Yulee became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, Williams-Yulee signed a campaign fundraising letter, in which she personally solicited campaign contributions. She admitted to having reviewed and approved the letter. A referee determined that Williams-Yulee violated Canon 7C(1) of the Florida Code of Judicial Conduct, which provides in pertinent part: “A candidate...for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds....” Williams-Yulee appealed, alleging that Canon 7C(1) violated the First Amendment. The Florida Supreme Court upheld the finding, ruling that Canon 7C(1) served compelling State interests in protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary; and that it was narrowly tailored to effectuate those interests.

Issue: The question before the Court is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

Holding: In a 5-4 decision, the Supreme Court ruled that Florida Bar's rule was narrowly tailored to serve the State’s compelling interest in preserving public confidence in the integrity of its judiciary. As a result, the Rule did not violate the First Amendment.

Garrett Epps is Right (and Wrong) on Indiana's RFRA

Indiana Gov. Mike Pence

In his latest article at the Atlantic, Professor Garrett Epps highlights two key differences between Indiana's recently-passed state RFRA law and the federal RFRA law. The first distinction is that Indiana's law provides explicit protection for for-profit businesses. The second distinction is that Indiana's RFRA provides a defense for claims against private lawsuits where the government isn't a party. Professor Epps is right that these two differences do not exist within the text of the federal RFRA law (or most state RFRA laws). But a cursory examination of these two issues shows that Professor Epps is wrong when he asserts that these differences are significant.

First, whatever one may think of RFRA protection for for-profit businesses prior to Hobby Lobby, that case is now the "law of the land" and its protection is effectively written into law. Epps suggest that, pre-Hobby Lobby, many believe this idea was "outlandish," but that's beside the point post-Hobby Lobby (I think it was perfectly reasonable, but we can agree to disagree here). So while the federal RFRA law does not contain the same language as Indiana's RFRA law, the end result is precisely the same. Any federal court ruling on a RFRA claim today would rule with the understanding that for-profit businesses are protected by RFRA. It is disingenuous to suggest that this provision is a significant difference from the federal law since Hobby Lobby. As to the states, Epps can point to only two (Louisiana and Pennsylvania) that specifically exclude for-profit businesses. It is not unreasonable to believe that other states may fall in line with the the federal interpretation, especially since some states, like Arkansas's recently passed RFRA, look to the federal courts for interpretation. Absent court decisions (beyond the singular Elane Photography) that specifically exclude for-profit businesses, it is a difficult leap to suggest this distinction is significantly different. 

Second, Epps focuses on the language in Indiana's RFRA which provides RFRA protection "regardless of whether the state or any other governmental entity is a party to the proceeding." He then claims that "[n]either the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language." Again, this is a true statement, but it excludes important context. As Josh Blackman has pointed out, of the six federal Circuits that have ruled on the issue, four of them have held that the federal RFRA law may be used as a defense in a private lawsuit. Within these four Circuits (the Second, Eighth, Ninth, and D.C. Circuit), RFRA is a defense in a private lawsuit, just as it would be under Indiana's state RFRA. To be sure, the Supreme Court has not ruled on whether the federal RFRA extends to private party lawsuits. Blackman also points out that the Justice Department under Attorney General Eric Holder wrote that it believed Wheaton College (a private party) could use RFRA as a defense to a lawsuit by one of it's employees (another private party). Given that the majority of circuits that have ruled on the issue have ruled this way, consistent with the Justice Department's apparent position on the issue, it is puzzling for Professor Epps to exclude this information in his article. Based on the lack of state RFRA cases regarding private parties, this distinction (as it applies to state RFRAs) is most generously described as undetermined rather than significantly different.

Professor Epps points to two reasons why Indiana's RFRA law is significantly different from the federal RFRA, but these distinctions start to fade away once you take a closer look.

Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Hacker cons and speech codes

A woman who uses the Twitter handle @avriette ("jane, the destroyer") had a problem with a talk at Shmoocon. @avirette tweeted: 

@avirette: So there was a talk at #shmoocon that was unnecessarily sexist (& gross really). I spoke out about it. People thanked me for doing so.

She followed up:

@avirette: People told me in person, in DM. The speaker(s) denied it was sexist rather than owning it and apologising.

@avirette: This is the reason people don't speak up. Nobody believes anything will be done, that anyone will change. This is why we need rules.

(bold is my emphasis)

Someone using the Twitter handle @ZeroFox (I am told that this acount is run by a woman who does marketing for ZeroFox) responded to one of her tweets and offered for the speakers to meet her in the hotel lobby to discuss the talk. She refused:

@ZeroFox: are you at the conference? We're in the hotel lobby and happy to grab a coffee and get your feedback

@avirette: you could have presented that talk very differently Try, next time, imagining there are women in the room.

I responded to her tweet:

@theprez98: Didn't see it, not taking sides...but the speaker offered to meet you to discuss. Doesn't seem unreasonable.

I recognize that everyone is not going to like everything. Some people are going to disagree over whether something is "sexist" or not. And to repeat what I said in my tweet, I didn't see the talk. I'm not taking a position on whether the talk was sexist or not. But there's a larger issue here. What I don't want is "rules." I assume she means speech codes (see this blog post on the evil of speech codes by Rob Graham), but I can't really ask her because she blocked me (and by the way, if by "rules" she doesn't mean "speech codes," then I'm happy make a change to this blog post). Here is a screenshot of her tweets:

Does @avriette think that she is doing her cause any good by branding a speaker's talk as sexist and then refusing her apparently good-faith effort to meet with her to discuss the issue she had? I certainly don't.

Dear @avriette, if you happen to read this: if you believe that the talk you saw was sexist, I'm in no position to question your sincerity. But I don't think you did yourself (or other women with similar concerns) any favors today. That's my $0.02.

Elonis Facebook Threats

This page is a supplement to my case page on Elonis v. United States. It contains an except from the Third Circuit's opinion that includes some of the threats Elonis posted on Facebook. For a summary of the case, click here.

Following the issuance of the state court Protection From Abuse order, Elonis posted several statements on Facebook expressing intent to harm his wife. On November 7 he wrote:

Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
I'm not actually saying it.
I'm just letting you know that it's illegal for me to say that.
It's kind of like a public service.
I'm letting you know so that you don't accidently go out and say something like that
Um, what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife.
That's illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that's its own sentence.
It's an incomplete sentence but it may have nothing to do with the sentence before that. So that's perfectly fine. Perfectly legal.
I also found out that it's incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated diagram.
Exhibit
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle of the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is that we have a group that meets Fridays at my parent's house and the password is sic simper tyrannis.

Tara Elonis testified at trial that she took these statements seriously, saying, "I felt like I was being stalked. I felt extremely afraid for mine and my children's and my families' lives." Trial Tr. 97, Oct. 19, 2011. Ms. Elonis further testified that Elonis rarely listened to rap music, and that she had never seen Elonis write rap lyrics during their seven years of marriage. She explained that the lyric form of the statements did not make her take the threats any less seriously.

On November 15 Elonis posted on his Facebook page:

Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence
And prison time will add zeroes to my settlement
Which you won't see a lick
Because you suck dog dick in front of children
* * *
And if worse comes to worse
I've got enough explosives to take care of the state police and the sheriff's department
[link: Freedom of Speech, www.wikipedia.org]

This statement was the basis both of Count 2, threats to Elonis's wife, and Count 3, threats to local law enforcement. A post the following day on November 16 involving an elementary school was the basis of Count 4:

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 school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?

By this point FBI Agent Denise Stevens was monitoring Elonis's public Facebook postings, because Dorney Park contacted the FBI claiming Elonis had posted threats against Dorney Park and its employees on his Facebook page. After reading these and other Facebook posts by Elonis, Agent Stevens and another FBI agent went to Elonis's house to interview him. When the agents knocked on his door, Elonis's father answered and told the agents Elonis was sleeping. The agents waited several minutes until Elonis came to the door wearing a t-shirt, jeans, and no shoes. Elonis asked the agents if they were law enforcement and asked if he was free to go. After the agents identified themselves and told him he was free to go, Elonis went inside and closed the door. Later that day, Elonis posted the following on Facebook:

You know your shit's ridiculous when you have the FBI knockin' at yo' door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
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!]

Law in Plain English: McCullen v. Coakley

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Planned Parenthood's clinic in Boston, MA. The
yellow line on the sidewalk and street marks the
35-feet buffer zone. Image from Google Street View.

SCOTUSblog: McCullen v. Coakley

Argument: Jan 15 2014 (Aud.)

Discussion: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed.

Planned Parenthood's Springfield, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Issue: The questions before the Court are (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Massachusetts law which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility violates the First Amendment.

Planned Parenthood's Worcester, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Law in Plain English: Susan B. Anthony List v. Driehaus

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Susan B. Anthony List v. Driehaus

Argument: Apr 22 2014 (Aud.)

Background: Shortly before the 2010 general election, then-Congressman Steven Driehaus filed a complaint with the Ohio Elections Commission against Susan B. Anthony List (SBA List), a pro-life advocacy organization that planned to run advertisements against him. SBA List then initiated a lawsuit seeking declaratory and injunctive relief against Driehaus, the Commission's members, and the Ohio Secretary of State. The Coalition Opposed to Additional Spending and Taxes (COAST), an anti-tax advocacy organization, filed a similar federal action, although no state proceedings had been brought against it. When Driehaus lost his bid for reelection, he filed a motion to withdraw his Commission complaint. SBA List consented to this and the Commission proceedings ceased. SBA List then amended its complaint to allege that the Commission proceedings following Driehaus's complaint chilled its speech and associational rights. This could happen again, SBA List alleged, if any complainant decided to hale the organization before the Commission. SBA List stated its intent to engage in "substantially similar activity in the future" and offered that Driehaus "may run for Congress again." COAST also filed suit against only the Commission. It claimed that it did not publish its own messages because its knowledge of the Commission proceedings against SBA List chilled its ability to speak. The district court granted the defendants' motions to dismiss on standing, ripeness, and mootness grounds. The Sixth Circuit affirmed, ruling that neither SBA List nor COAST's allegations were ripe.

Issue: The questions before the Court are (1) whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

Holding: In a unanimous decision, the Supreme Court ruled that that petitioners have alleged a sufficiently imminent injury under Article III to enable them to challenge the constitutionality of the false statement law.

Law in Plain English: Wood v. Moss

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Wood v. Moss

Argument: Mar 26 2014 (Aud.)

Discussion: Michael Moss and other anti-Bush protesters brought a Bivens action against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. The protestors' complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them (but not another group of pro-Bush demonstrators) to create a security perimeter around the President. The Nith Circuit ruled that the anti-Bush protestors had alleged a plausible First Amendment claim and that Agents Wood and Savage were not entitled to qualified immunity.

Issue: The questions before the Court are (1) whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the president by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade; and (2) whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.

Holding: In a unanimous decision, the Supreme Court ruled that the agents were entitled to qualified immunity.

Can a wedding photographer be compelled to provide services to a same-sex couple?

Yes, says the New Mexico Supreme Court:

{1} By enacting the New Mexico Human Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -13 (1969, as amended through 2007), the Legislature has made the policy decision to prohibit public accommodations from discriminating against people based on their sexual orientation. Elane Photography, which does not contest its public accommodation status under the NMHRA, offers wedding photography services to the general public and posts its photographs on a password-protected website for its customers. In this case, Elane Photography refused to photograph a commitment ceremony between two women. The questions presented are (1) whether Elane Photography violated the NMHRA when it refused to photograph the commitment ceremony, and if so, (2) whether this application of the NMHRA violates either the Free Speech or the Free Exercise Clause of the First Amendment to the United States Constitution, or (3) whether this application violates the New Mexico Religious Freedom Restoration Act (NMRFRA), NMSA 1978, §§ 28-22-1 to -5 (2000). 

{2} First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.  

{3} Second, we conclude that the NMHRA does not violate free speech guarantees because the NMHRA does not compel Elane Photography to either speak a government mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment. 

{4} Finally, we hold that the NMRFRA is inapplicable in this case because the government is not a party. For these reasons, we affirm the judgment of the Court of Appeals.

Chief Justice Roberts on free speech

From Chief Justice Roberts' majority opinion in Snyder v. Phelps, 131 S. Ct. 1207 (2011):

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and...inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

"I dare you to step over this line!"

Remember this one?

When Bugs Buggy dared Yosemite Sam to step over the line, I suspect he didn't think it would turn out to be a federal case. Nonetheless, two cases in the upcoming Supreme Court term quite literally involve lines in the sand, er, ground.

United States v. Apel: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction. The Supreme Court will decide whether a federal law which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. The protest area outside the front gate of the base is represented by the green line painted on the road in the image below.

McCullen v. Coakley: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed. The Supreme Court will decide (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. One of the clinic buffer zones is indicated by the painted white arc in the image below.

Law in Plain English: Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.

Passed by Congress in 2003, the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act contains a provision which requires that recipients of its funding make an explicit policy opposing prostitution and sex trafficking. Alliance for Open Society Int'l, Inc. and several other organizations who received funding objected to making this policy statement on the grounds that it violated their free speech (to be clear--these organizations do not explicitly support prostitution and sex trafficking, but fear that publicly opposing them will hurt their efforts). In return, the Government argues that these private organizations have a choice to participate in the program, and in offering a choice does not offend the organization's First Amendment rights. The lower courts have found this explicit policy provision to unlawfully compel or coerce speech. The question before the Court was whether the Act, which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violated the First Amendment. In a 6-2 decision (with Justice Kagan recused), the Supreme Court ruled the Policy Requirement violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. As a result, the recipients of the funds do not have to make such policy statements. The practical impact of this decision is that the Government is limited its in power to demand that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, when that requirement affects protected conduct outside the scope of the federal funded program.

Can the government compel speech of an organization that receives federal funding as a condition of that funding?

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

This morning, the Supreme Court will hear oral argument in the case of Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. The controversy centers around the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. The Act was passed by Congress in 2003 and contains a provision, 22 U.S.C. § 7631(f), which states that

No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking...

The George Soros-funded Alliance for Open Society Int'l, Inc. and several other organizations who received funding objected to making this policy statement on the grounds that it violated their free speech (to be clear--these organizations do not explicitly support prostitution and sex trafficking, but fear that publicly opposing them will hurt their efforts). In return, the Government argues that these private organizations have a choice to participate in the program, and in offering a choice does not offend the organization's First Amendment rights. After all, they can simply choose not to participate. Thus far, the lower courts have found this explicit policy provision to unlawfully compel or coerce speech. The question before the Court is whether the Act, which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

I'll have a follow-up post to on this case when the Supreme Court renders its decision.

Law in Plain English: In Re National Security Letter

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

In Re National Security Letter

The FBI issued a national security letter (NSL) to an unnamed ISP for certain subscriber information. The FBI certified that disclosure of the NSL could harm national security, so the ISP was prohibited from disclosing to anyone that they had received it (a gag order). The ISP challenged the constitutionality of the  non-disclosure provision as a violation of free speech, and challenged the judicial review provisions as a violation of the separation of powers. Judge Susan Illston of the United States District Court for the Northern District of California ruled that the nondisclosure provision was a form of prior restraint which was not narrowly tailored, since the provision applied to both the content of the NSL and the fact that the ISP even received it. As a result, it violated the ISP's freedom of speech. Additionally, the judicial review provisions violated both the First Amendment and the separation of powers principle by trying to narrow the ability of courts to review the nondisclosure orders. Furthermore, she prohibited the government from issuing any NSLs or from enforcing the nondisclosure provisions in this case and in any other cases. Lastly, she stayed enforcement of the judgement pending appeal or 90 days if there is no appeal (although that seems entirely likely).

Update (8/13/2013): I missed this a few months back, but the Government did file a notice of appeal.

NSL Order by Michael Schearer

Law in Plain English: Bloem v. Unknown Department of the Interior Employees

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

I've made a slight change to the "SCOTUS in Plain English" series to reflect the opportunity to discuss a few cases not at the Supreme Court level that are nonetheless interesting and worthy of discussion. As a result, the series is now called "Law in Plain English."

Bloem v. Unknown Department of the Interior Employees

The National Park Service distributed flyers warning Occupy protesters in McPherson Square that they would begin enforcing a prohibition on camping. Subsequently, many items of personal property (some that belonged to Bloem) were destroyed. Bloem filed a lawsuit against the unnamed Department of the Interior employees for the seizure and destruction of his property. The DoI filed a motion to dismiss, alleging that Bloem had failed to state a claim upon which relief could be granted. The District Court ruled that the tent city was expressive conduct, permitted by the First Amendment. Additionally, Bloem's allegations that the DoI had violated his Fourth and Fifth Amendment rights were sufficient, and thus Bloem had stated a plausible claim. For purposes of a motion to dismiss, which in this case is a 12(b)(6) motion, Bloem's alleged facts are presumed by the court to be true. In other words, the court looks at the case and says: even if we assume that all of his facts are true, has he made a plausible claim? This is a procedure hurdle to make sure that baseless lawsuits don't consume valuable time of the court. As a result, Bloem's claim survived the government's motion to dismiss and the case can move forward.

Is this protected speech?

A few days ago, a Baltimore blogger was sitting in his home when the Baltimore Police brought their SWAT team to arrest him. While the police were outside, he was tweeting and broadcasting live audio, including his phone call with a police negotiator (read here for the story).

One of the principle issues surrounded the fact that the police department sent the SWAT team to arrest someone for a failure-to-appear (FTA) on a probation violation (added to the fact that his probation had since ended).

Knowing that there was a warrant for his arrest, he tweeted this:

Anyone trying to capture me, ur gonna have to kill me, before I kill you. I'm a nice guy, but I'm a bad, bad man. Dangerous us, so don't try
— Baltimore Spectator (@BaltoSpectator) December 1, 2012

(image here in case the tweet gets deleted)

He also tweeted a lot of other things, including other threats of violence, and about his impending death.

Additionally, he has a conviction for assault and a weapons charge.

Are you surprised, then, when the police showed up with a SWAT team?

More importantly, given the situation, what the police knew, what he knew, do you think the tweet above considered protected speech?