The Case Against Julian Assange

In 2006, the world was introduced to classified government information leaked by a source called “WikiLeaks,” producing what officials say is the largest compromise of classified information in the history of the United States. The public was invited beyond the walls of the government’s national security system, revealing corrupt matters ranging from stolen emails to top secret war documents, and far beyond. Julian Assange: Six of WikiLeaks’ most memorable revelations

WikiLeaks was created by Julian Assange in order to reach his goal “to bring important news and information to the public” WikiLeaks, and he has been doing just that since 2006. However, Assange was arrested on April 11, 2019 to face a charge of “conspiring to hack into a Pentagon computer network in 2010” with the help of Chelsea Manning, former army intelligence analyst. The New York Times. While some consider Assange a hero that is advocating for government transparency and freedom of the press, government officials and many others feel that what Assange released put the United State’s national security at risk.

Journalism has changed drastically throughout the years; someone no longer needs to be employed by a local or major newspaper or broadcasting network in order to hold that title. With social media, people can provide journalistic content to a wide span of viewers at the click of a mouse, or the tap of a screen. The close analysis of the Espionage Act, the First Amendment rights of Julian Assange, along with taking the alleged conspiring between Assange and Manning into consideration, all combine to make a case that challenges current views and laws on journalism. The outcome of this case frightens American investigative journalists who write about national security matters and threatens to take away a part of the First Amendment right that many legal scholars and Americans believe is crucial. The combination of these aspects will decide whether Assange should go to prison or not.

In April 2019, the U.S.Department of Justice revealed an indictment against Julian Assange. Chelsea Manning, formerly known as Bradley Manning, held a “Top Secret” security clearance, and “signed a classified information nondisclosure agreement, acknowledging that the unauthorized disclosure…of classified information could cause irreparable injury to the United States or be used to the advantage of a foreign nation” Indictment- USA Today. The Espionage Act makes it a crime for anyone to “knowingly and willfully communicate, furnish, transmit, or otherwise make available to an unauthorized person” information that would infringe upon the safety of the United States, or give benefit to any foreign government.” Espionage Act of 1917 § 798. The First Amendment protects the right to freedom of religion and freedom of speech, so sometimes there are constitutional conflicts. Journalists are completely protected by the First Amendment, and they cannot be punished for publishing information that was obtained illegally, as long as the journalist himself/herself did not do anything illegal. A majority of people think that prohibiting the publishing of classified information is against the First Amendment, and if laws are made that do contravene freedom of the press, some say that ‘Pandora’s Box’ will be opened, leading to investigative journalists that write about national security matters possibly being out of work.

New York Times Co. v United States New York Times Co. v United States 403 U.S. 713 is a case being used in with Assange. ‘The Pentagon Papers’, revealed classified information about the Vietnam War and was released to the New York Times and Washington Post. The information was posted on the front page of The New York Times, in 1971. The case outright defended the journalist’s right to freedom of the press, stating “The Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors….the newspapers nobly did precisely that which the Founders hoped and trusted they would do.” (Paragraph 9 Westlaw). The difference between these two cases is that The New York Times was not accused of conspiring illegally to get the information that it published.

In Bartnicki v Vopper 403 US 713 (1971), an unknown person intercepted and recorded a phone call discussion between the chief union negotiator and the union president during negotiations regarding a school board. After the conversation ended, a radio station played the tape. In a 6-3 decision, the United States Court of Appeals for the Third Circuit concluded that the First Amendment protects disclosure of classified information as long as the person that disclosed it was not part of the illegal interception.

         In order for Julian Assange to be able to go to jail, under current laws, there needs to be proof that he conspired to do something illegal in order to obtain the classified information. The indictment states that “On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on the U.S. Department of Defense computers connected to the Secret Internet Protocol Network.” Assange and Manning allegedly used “Jabber” online chat service to collaborate on cracking the password in order for Manning to get the files. The indictment also states that “Assange indicated that he had been trying to crack the password by stating that he “had no luck so far.” The prosecution will no doubt use these exchanges between Assange and Manning as proof that Assange was not just a passive receiver of the illegally leaked information, but took affirmative steps to obtain it. Indictment- USA Today.

         According to the opinions of legal scholars, it will be incredibly hard for the Court to override the First Amendment in regard to prior restraint of classified information. Prior restraint is when the government prevents or bans publication from occurring in the first place, or prevents distribution of the printed product, rather than punish the publisher by criminal sanctions after the fact. If the distribution of information will inflict harm on the national security of the United States, that reasoning might be constituted as one of the “exceptional cases referred to in the New York Times v United States case of the Pentagon Papers. In the legal opinion The Use of Prior Restrains on Publication in the Age of Wikileaks, CJ Griffin and Frank Corrado state that “Given the absence of any recent Supreme Court precedent on prior restraints where national security issues are at stake, and given the Trump administration’s proclaimed anger against the media’s use of anonymous sources sharing leaked confidential information, it is plausible that the government may seek prior restraints against WikiLeaks or other media agencies” (Page 17). Since there is alleged proof of text messages between Chelsea Manning and Julian Assange conspiring to break into classified government systems, Julian Assange’s arrest is justified in the eyes of some legal scholars, according to the law. 

By Alexandra Butz

Bibliography 

Espionage Act, 18 U.S. Code § 798. Disclosure of Classified Information. Legal Information Institute.

Espionage Act of 1917, Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422, codified at 18 U.S.C. §§ 793-98 

Bartnicki v Vopper 403 US 713 (1971)

Supreme Court of the United States. May 21, 2001532 U.S. 514121 S.Ct. 1753149 L.Ed.2d 787 

Cummings, William. “Six big leaks from Julian Assange’s WikiLeaks over the years.” USA

Today. 11 April 2019. Web  

Griffin, C. J. .., and Frank2 Corrado. “The Use of Prior Restraints on Publication in the Age of

Wikileaks.” Computer & Internet Lawyer, vol. 35, no. 6, June 2018, pp. 16–18.

EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=lgs&AN=131123567&site=ehost-live&scope=site. 

New York Times Co v United States 403 US 713 (1971)

Supreme Court of the United StatesJune 30, 1971403 U.S. 71391 S.Ct. 214029 L.Ed.2d 822

Rossman, Sean. “Julian Assange indictment: Read the grand jury indictment against the

WikiLeaks founder.” USA Today. 11 April 2019. Web.

Savage, Charlie, et al. “Julian Assange Arrested in London as U.S. Unseals Hacking

 Conspiracy Indictment.” The New York Times. 11 April 2019. Web. 

WikiLeaks.org

Protected or Not? Non-Traditional Journalists and Shield Laws

by Gionna Kinchen

A shield law is defined by Britannica as “any law that protects journalists against the compelled disclosure of confidential information, including the identities of their sources, or the forced surrender of unpublished written material collected during news gathering, such as notes.” Shield laws exist in 41 of the 50 states in America, but the specific protections provided vary greatly state by state. One of the largest areas of variability in these laws lies in the eligibility of individuals to receive shield law protections. These discrepancies call into question: what defines a journalist?

The state of New Jersey’s shield law is considered by many to cover a large range of different types of journalists, including traditional and non-traditional. The law provides absolute protection in civil cases and a qualified privilege at the court’s discretion in criminal cases for any “person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated,” according to N.J. Stat. §§ 2A:84A-21 to 21.8. This means that not only writers, but also producers, editors, reporters, broadcasters and the like are all protected. It is not a requirement that one is a paid employee of a news source to be protected, according to the Digital Media Law Project. However, the law requires one to be “connected with” the news media, which, according to the law, includes “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” Therefore, to be protected one does not have to be employed or associated with a mainstream news source; anyone who reports news through any of the means listed above is protected. According to the Digital Media Law Project, this includes “periodicals online, Web radio, regular podcasts … [and] blogs.”

California’s shield law is an example of one that provides fewer protections for non-traditional journalists. California’s shield law states that any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed … [in addition to any] radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed” is protected under shield law. Although the law itself does not mention online journalism,  O’Grady v. Superior Court (2006) established that the California shield law applies to people that gather or report news “for dissemination to the public, regardless of whether the publication medium is print or online,” according to the Digital Media Law Project. The case stated that California shield law protects “open and deliberate publication on a news-oriented Web site of news gathered by that site’s operators,” but does not necessarily protect “the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group.” The case also determined that, unlike New Jersey’s shield law, California’s shield law does not protect blogs, due to the “rapidly evolving and currently amorphous meaning” of the word “blog.”

Unlike in the state of New Jersey, Californian journalists, as well as journalists in 34 other states, are given a court-recognized privilege in addition to shield law protection. Therefore, while an individual is not eligible for protections under California’s shield law, they may still be eligible to receive some protection based on the First Amendment of the United States Constitution. When applying the qualified privilege, Californian courts will use a balancing test that consists of the following questions: “(1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure,” according to the Digital Media Law Project.

The state of Florida is another example of a state with a shield law as well as court-recognized privilege for journalists, however protections under both are narrowly tailored. In Florida, for one to qualify for shield law protections and qualified privilege, one must be a “professional journalist,” meaning “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine,” according to Fla. Stat. § 90.5015. Florida’s shield law excludes many of the non-traditional journalists covered in New Jersey and California, including amateur journalists and bloggers, or anyone who does not receive monetary compensation for their work. In addition, the wording of the law makes it unlikely that any journalists employed by an online publication would be covered, according to the Digital Media Law Project.

In Massachusetts, there is no shield law. However, journalists may be protected under Massachusetts Common Law. Since Common Law is made by the judge, it operates on a case-by-case basis and has no official guidelines, and therefore may be subject to inconsistencies and ambiguities, according to the Digital Media Law Project. In the case Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), it was decided by a federal court interpreting Massachusetts law that “an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the ‘organized press,’” according to the Digital Media Law Project. However, this decision is not legally binding in Massachusetts courts, and therefore may or may not influence the way Massachusetts rules on future cases of this nature. Massachusetts does however recognize a qualified reporter’s privilege, much like Florida and California.

shield laws have been shown to have an extremely large degree of variability depending on the state. While states like New Jersey and California have extremely broad views of who is qualified for shield law Protections, other states like Florida have extremely restrictive shield law eligibility requirements, and a handful of states, like Massachusetts, have no shield law at all and provide nearly no protection for journalists. Many journalists have pushed for a federal shield law to combat these discrepancies, but at this point in time, no federal shield law exists.

 

Bibliography

“California Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/california-protections-sources-and-source-material.

“California Shield Law.” Bill Text – SB-558 Reporters’ Shield Law., Bill Text, leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB558.

“California Shield Law.” FIRST AMENDMENT COALITION, FIRST AMENDMENT COALITION, firstamendmentcoalition.org/california-shield-law/.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT. JASON O’GRADY Et Al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; APPLE COMPUTER, INC., Real Party in Interest. Digital Media Law Project, 26 May 2006.

“Florida Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/florida-protections-sources-and-source-material.

“Massachusetts Protections for Sources .” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/massachusetts-protections-sources-and-source-material.

“Massachusetts Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/massachusetts-protections-sources-and-source-material.

“New Jersey Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/new-jersey/new-jersey-protections-sources-and-source-material.

“2013 New Jersey Revised Statutes :: Title 2A – ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE :: Section 2A:84A-21 – Newspaperman’s Privilege.” Justia Law, Justia Law, 2019, law.justia.com/codes/new-jersey/2013/title-2a/section-2a-84a-21/.

“Reporters’ Privilege Compendium: California Shield Laws Guide – RCFP.” The Reporters Committee for Freedom of the Press, The Reporters Committee for Freedom of the Press, www.rcfp.org/privilege-compendium/california/.

“Shield Laws in the United States.” Wikipedia, Wikimedia Foundation, 5 Feb. 2020, en.wikipedia.org/wiki/Shield_laws_in_the_United_States#State_laws.

“Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.

“The 2019 Florida Statutes.” Online Sunshine: Official Internet Site of The Florida Legislature, The Florida Legislature, 9 Apr. 2020, www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.5015.html.

The Editors of Encyclopaedia Britannica. “Shield Law.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 28 Nov. 2016, www.britannica.com/topic/shield-law.

United States District Court, D. Massachusetts. “Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.

 

 

The Electoral College and the First Amendment

by Iris Wexler

On Wednesday May 13th, 2020,  the U.S. Supreme Court heard oral arguments on Chiafalo v. Washington State (combined with another similar case in Colorado.)  The issue in these cases is basically whether the electors who comprise the electoral college have a right to vote their conscience rather than the will of the voters they represent. https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/   

 How this case is decided  could have a profound effect on the upcoming 2020 presidential election. In Chiafalo v. Washington case the high Court will decide whether state laws punishing electors for voting differently than is mandated by state law violates the First Amendment right to free speech and expression. The Chiafalo v. Washington case is pending adjudication of the United States Supreme Court 2019-2020 No. 19-465.

 “Under the current law of Washington State, presidential candidates in each political party are required to nominate for the Electoral College electors from its party equal to the number of representatives and senators allotted to the state. Washington follows a “winner-take-all” electoral system, meaning that all of a state’s electoral votes go directly towards the winner of the popular vote in that state. The nominees are required to vote for the candidate running in their party, and nominees who fail to vote for their candidate is subject to a fine up to $1,000” (Oyez, paragraph 2). 

The argument of the case is whether there should be enforcement towards voting laws in Washington state revolving around “faithless electors”. The law would entail threatening electors who vote contrary to their party’s candidate. The issue of this is whether “faithless electors” should receive a fine up to $1,000 if voting contrary to their party, following potential punishment or replacement. The highly anticipated decision that will be made by The Supreme Court is forecasted to be presented by the upcoming 2020 United States presidential election. 

The case arose after the 2016 presidential election took place when petitioners Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John were nominated as a few of the presidential electors of the Democratic Party in Washington State. When Clinton/Kaine won Washington state’s popular vote, the electors were entitled to cast their ballots based on the winners of the election. Instead, for President, they voted for Colin Powell and different candidates for Vice President. The electors who violated the requirements were fined $1,000 by Washington Secretary of State for failing to vote for the nominee of their party as well as violating the state’s law.  

The results based on the national election; it was evident that Donald Trump would be our next president. Some electors and appellants nationwide announced that they would not vote for Clinton nor Trump and would attempt to prohibit Trump from receiving the minimum number of votes from the Electoral College to prevent him from becoming president. Stated in the Constitution, if neither candidate receives a majority of the Electoral College votes than it is the House of Representatives’ responsibility to decide the next president. 

In response, the electors disputed the fines to an administrative law judge, stating that the fine is violating the First Amendment and it is unconstitutional. The electors believe that the fine is violating their First Amendment rights because casting a vote is their given choice and it is exercising their freedom of speech and press. They believe voting is a form of speech under the First Amendment and it is their fundamental right entitled to full protection under the United States Constitution. “The electors argued that the constitutional provisions governing presidential elections give entitlement to electors to have the right to vote for whomever they wish regardless of the state’s law. The electors also claimed a First Amendment right to veto the preferences of Washington’s voters. The Washington State Courts responded by rejecting these arguments. The electors precisely asked the Court to rule on First Amendment issues but lacked support in their statements” (Public Citizen 1). “The judge approved the imposition of the fine due to the electors having no authority to rule on constitutional matters upon the judge. The appellants appealed to the Thurston County Superior Court. In response, the court declared the Secretary of State. The appellants proceeded to direct review on appeal to The Washington Supreme Court” (Ballotpedia, 2019).

“On May 23, 2019, Washington Supreme Court upheld the ruling of the trial court, stating that the fines were constitutional under Article II, section 1, that the electors were not granted discretion in casting their votes under the Twelfth Amendment nor did the fine impede with a federal function. An elector acts under the authority of the State, meaning that a First Amendment right is not considered violated when a state imposes a fine based on an elector’s violation of their pledge” (Ballotpedia, 2019).  

The case was scheduled to be heard among the United States Supreme Court before the October 2019-2020 term. The oral argument of this case was initially scheduled for April 28th, 2020. On April 3rd, the U.S. Supreme Court announced that the trial would be postponed due to following health guidance in response to the severity of COVID-19.

The argument of this case presents an important unresolved question of federal constitutional law. The United States Supreme Court is being asked whether enforcement of this law is unconstitutional because a state does not have the power to enforce how an elector must cast their ballot, and if it violates the First Amendment if a state penalizes an elector for exercising their constitutional discretion. 

In conclusion, the questions that are being tackled is if there should be a law issued by the state requiring presidential electors to vote based on the direction of the state’s law and if they should be subject to a fine. If the U.S. Supreme Court rules that the state’s electors have the right to vote their conscience without penalty, it could change what the electors do, and theoretically impact future electoral college outcomes. The Supreme Court is being asked to resolve a critical question involving the foundation of our democracy before the 2020 election to avoid possible chaos, resolve uncertainties, and confusion that could arise post-election litigation. 

 

Work Cited

“Chiafalo v. Washington.” Oyez, www.oyez.org/cases/2019/19-465. Accessed 10 Mar. 2020.

Service, Wire. “Supreme Court to Hear Washington Case of ‘Faithless’ Electors.”HeraldNet.com

,HeraldNet.com, 17 Jan. 2020, www.heraldnet.com/news/supreme-court-to-hear-

washington-case-of-faithless-electors/

“Chiafalo v. Washington.” Ballotpedia, ballotpedia.org/Chiafalo_v._Washington.

Barnes, Robert. “Supreme Court to Weigh Whether States, Including Washington, Can 

Punish ‘Faithless’ Electors.” The Seattle Times, The Seattle Times Company, 17 Jan. 2020 http://www.seattletimes.com/nation-world/supreme-court-will-hear-whether-states-may-punish-electoral-college-members-who-ignore-popular-vote-results/

Docket for 19-465, http://www.supremecourt.gov/docket/docketfiles/html/public/19-465.html.

“Chiafalo v. Washington.” Public Citizen, www.citizen.org/litigation/chiafalo-v-washington/.

Hamm, Andrew. “Chiafalo v. Washington.” SCOTUSblog, www.scotusblog.com/case-files/cases/chiafalo-v-washington/.

 

Porn Warnings in Utah

 

When someone goes onto a website like Pornhub to view pornography, they usually know what they’re in for. Let’s be honest, most of the time the video titles can give a pretty good idea of what the viewer is about to watch. However, in Utah, they’re taking it a step further.

Now when someone goes to watch porn in the state of Utah, not only will they get the no-brainer video title, but they will also get a warning label to really drive the point home of what’s coming next, thanks to H.B. 243.

H.B. 243 just passed through Utah’s State Legislature on April 1, and it did so “without Governor Gary Herbert’s signature” (Porn warning labels bill becomes Utah law amid controversy).

The new law “allows the attorney general or a member of the public to bring an action against a person who distributes pornography without a visible warning or specific searchable text for a website” (HB 243).

The label must be a sentence long and it must warn the viewer about potential to harm minors. If porn producer’s don’t comply, they’ll face a “$2,500 penalty” (Porn warning labels bill becomes Utah law amid controversy).

Originally, the law was targeted toward all pornographic material, but was narrowed down to porn that is considered legally obscene after facing criticism that the measure could be seen as unconstitutional.

Considering that porn is protected by the First Amendment, this bill has faced backlash from the Porn industry. Mike Stabile, a representative with the Free Speech Coalition, an adult entertainment group, has made it clear that he finds this law to be a grotesque overstep on the First Amendment.

“The law may be narrowed, but the chilling effect on speech is huge — people not speaking or creating out of fear of prosecution,” Stable has said. (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

In order for porn to lose First Amendment protection, it has to fall under two categories: child pornography and obscenity (Pornography & Obscenity).

Unfortunately, the problem with obscenity is subjectivity. Anyone can decide what they consider to be obscene, especially under this new law.  Although this law only applies to “hardcore material” porn producers fear that this legislation has the potential to “unfairly force porn producers to defend themselves in court because it allows private citizens as well as the state to file complaints” (Porn warning labels bill becomes Utah law amid controversy).

The entire purpose of the bill is to protect children. Republican Representative Brady Brammer, a sponsor of the law, has said “the measure is aimed at helping people worried about the widespread availability of porn online and how easily children can find it.” (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

However, a judge would be the deciding factor in determining whether or not the porn qualifies as obscene. Ultimately, producers could avoid the penalty by “showing that they have included the label most of the time.”(HB 243) Unfortunately, this is where the problem of subjectivity comes into play.

For years U.S. Supreme Court Justices have struggled with pinpointing what is and isn’t obscene. It began in 1957 with Roth v. United states where it was ruled “in a 6-to-3 decision written by Justice William J. Brennan, Jr., that obscenity was not within the area of constitutionally protected speech or press.” (Roth v. United States)

Then in the 1964 decision for Jacobellis v. Ohio, Justice Potter Stewart could not even provide a definition, he just simply said, “But I know it when I see it, and the motion picture involved in this case is not that.” (Jacobellis v. Ohio)

To decide whether or not Jacobellis’s conviction should be reversed, the Supreme Court of Ohio looked to the obscenity test, which the court defined as “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” (Jacobellis v. Ohio)

Today, courts utilize the three-prong obscenity test, or the Miller test, which was developed in the case of Miller v. California. The test decides on obscenity by determining:

  • Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values (Miller v. California)

In Utah, deciding if material is considered pornographic is eerily similar to the obscenity test. According to the state’s criminal code, Utah does not require an expert witness to testify for or against the fact the material or performance is or is not harmful to adults or minors or is or is not pornographic.

Their test for deciding whether material is pornographic is as follows:

  • The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex.
  • It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and
  • Taken as a whole it does not have serious literary, artistic, political or scientific value. (76-10-1203. Pornographic material or performance)

While Brammer has expressed before the law passed that “he knows that it will most likely face a legal challenge,” (Pornography warning label bill clears House committee) no challenges have come thus far.

But this law does beg the question, what is considered obscene, and is protecting youth from porn more important than infringing on the First Amendment?

Sources

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/adult-entertainment/pornography-obscenity/

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://le.utah.gov/~2020/bills/hbillenr/HB0243.pdf

https://www.sltrib.com/news/2020/04/04/porn-warning-labels-bill/

https://www.sltrib.com/news/politics/2020/02/12/pornography-warning-label/

https://www.oyez.org/cases/1956/582

https://www.stgeorgeutah.com/news/archive/2020/03/10/apc-pornography-labeling-bill-passes-utah-legislature-but-could-face-first-amendment-legal-challenges/#.Xo_CbshKjIW

https://le.utah.gov/xcode/Title76/Chapter10/76-10-S1203.html?v=C76-10-S1203_1800010118000101

 

 

 

More Thoughts on the U.S. Supreme Court’s Term/Analysis

Last week the Court ruled, in another 5-4 decision, that the state of California cannot force pregnancy crisis centers to post information about where and how a woman can get an abortion. (See the article below.) The state passed the FACT Act, concerned that economically challenged and uneducated women would not be aware that free abortion and pregnancy related services are available to them. The act, which was upheld by the 9th Circuit Court of Appeals, was struck down by the U.S. Supreme Court on the grounds that the state of California was violating the First Amendment rights of these private crisis centers by forcing them by law to engage in “compelled speech.” Defenders of the law also accused the centers, some of which are unlicensed, of engaging in deceptive advertising.

Both this decision and the prior one upholding the right of a baker to refuse to make a designer wedding cake for a gay couple on the grounds of religious freedom, deal with the issue of compelled speech. Clearly, the states, in this case California and Colorado, cannot mandate through legislation, certain types artistic or even commercial speech. Regardless if one agrees or disagrees with the message in the speech, these decisions are important in clarifying the free speech rights of private citizens and organizations. First, the Masterpiece Cake case expands the notion of what constitutes speech that is considered artistic–in this case a cake.

Secondly, the argument that one party must be ‘compelled’ by the state to engage in speech in order to not discriminate against another party’s rights did not hold sway by the majority of the Court, however slim. The state cannot assume that every person has to create art (which is speech) for every occasion or inform every pregnant woman that she can receive a free abortion just because gay marriage and abortion are legally protected rights.

To some, this seems irreconcilable. How can this be, they ask? Consider that anti-discrimination laws punish or prevent action, not speech, that would disenfranchise certain people.  While Mr. Phillips does not have to celebrate gay marriage by creating a cake for the two men who walked into his shop, he also cannot stop them from getting married.  Legal observers can only conclude that affirmative rights acknowledged or given by the state, such as marriage equality or abortion, are not eroded by upholding free speech that does not promote them.

Editors Note June 4, 2018

In a 7-2 decision the Supreme Court ruled that the Colorado Civil Rights Commission violated a baker’s First Amendment rights to free speech when it punished Jack Phillip’s refusal to bake a custom-made cake for a gay couple who were getting married. Phillips objected to baking the cake, which he called an ‘artistic creation,’ on the grounds that gay marriage is against his religious beliefs. In a decision authored by Justice Anthony Kennedy, Court said the Colorado Civil Rights Commission showed impermissible hostility to religion, the practice of which is protected by the First Amendment.
https://apnews.com/459b5e723c4c47ffa40df839097503c9/Justices-side-with-Colorado-baker-on-same-sex-wedding-cake

Abortion Disclosure Laws and the First Amendment–Two Takes

On March 21, the Supreme Court started hearing arguments for the case National Institute of Family and Life Advocates v. Xavier Becerra. This case had been upheld unanimously by a three-judge panel in the Ninth Circuit Court of Appeals before being presented to the Supreme Court, although, the New York Times stated that “Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”

 

The conflict stems from a 2015 California law requiring unlicensed pregnancy crisis centers, often called “fake pregnancy centers,” to visibly post signage indicating that 1) they do not have a licensed medical professional on the premises and 2) that state-subsidized abortions and prenatal care are available at little to no cost. Pregnancy crisis centers, which often look like abortion clinics or are located adjacent to them, are often religiously affiliated. They offer advice to pregnant women who are considering abortions, usually trying to convince them to reconsider their decision and carry the pregnancy to term. The National Institute of Family and Life Advocates is serving as an umbrella organization for these centers. Their argument, in short, is that in requiring that they state these things, the state of California is violating the First Amendment rights of these centers by forcing them to advocate for something that is in conflict with their firmly-held beliefs.

 

At least two very similar cases have been decided in state courts before. In 2012, First Resort Inc., one of these pregnancy centers, sued the City of San Francisco, which had an ordinance that prevented such centers “from making false or misleading statements to the public relating to their services,” according to the case First Resort Inc.v. Herrera. The court moved to settle the matter without hearing oral arguments, giving First Resort leave to amend their claim because they could not “allege any compelling grounds for declaring the Ordinance void on the grounds of vagueness,” and gave them an opportunity to amend their claim should they choose to do so.

 

In 2017, a similar case was brought before the Fourth Circuit Court of Appeals: Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore. This, too was with regard to a city ordinance requiring that pregnancy centers post disclaimers stating that they “‘do not provide or make referrals for abortion or birth-control services.’” The court held that the ordinance does indeed violate the free speech clause of the First Amendment.

 

According to the New York Times article, “Other federal appeals courts have struck down similar laws, saying that the government could find other ways to inform women about their options,” and Justice Gorsuch said at the Supreme Court arguments on March 21 that there are more direct ways of addressing speech and information that is misleading, such as through lawsuits and prosecutions (Cohen).

 

In his oral argument, the lawyer for the plaintiff, the National Institute of Family and Life Advocates, claims that the required notice and the specific centers that must give the notice are “gerrymandered,” or in other words that they are cherry-picked specifically to violate very specific beliefs. However, Justice Breyer says that “what is sauce for the goose is sauce for the gander,” asking about a hypothetical situation in which abortion clinics would also have to display notices giving information on non-abortion options, just as the crisis centers advertise for abortions.

 

Also brought up during the oral arguments was the 1992 case Planned Parenthood v. Casey, of which Justice Kagan called this case the “exact flip-side” (Liptak). This is because the resulting decision in Planned Parenthood v. Casey required abortion clinics and other medical facilities providing abortions to display and advertise information that has been proven to be untrue, such as the medical link between abortion and breast cancer and that medical abortions can be reversed (Cohen).

 

Because these cases have similar complaints coming from opposite ideologies, the resulting decision will likely have implications for both abortion clinics and pregnancy crisis centers, and thus for both the pro-choice and pro-life movements. If both parts of the California law are kept in place (both the requirement of pregnancy crisis centers to advertise that no licensed medical professional is on the premises and that low- or no-cost abortions are available by calling a certain number), then women who mistakenly happen upon these crisis centers when seeking abortions will enter them far less frequently, and will not be given false or speculative information about the procedure that they have likely already scheduled.

 

However, if the California law is deemed unconstitutional, then neither pregnancy crisis centers nor abortion clinics would be required to post information information that is not factual or goes against their fundamental beliefs. The pregnancy crisis centers would not be required to post information about how to obtain a low- or no-cost abortion or even disclose that they are not a medical facility, and medical clinics providing abortions would no longer be required to post or advertise false or misleading medical information about abortions.

 

In a New York Times article titled “Supreme Court Warily Eyes California Law Involving Abortion and Free Speech,” Jeffrey B. Wall opines that it is acceptable to require unlicensed pregnancy crisis centers to post a notice disclosing that no licensed medical professional is present, but requiring them to “make disclosures about services they do not provide and that would violate their most deeply held beliefs,” is not (Cohen). It is certainly a possibility that the court will rule this way, as the first part of the law is a disclosure about the medical licenses of the personnel present, while the second part, as Judge Wall stated, requires compelled speech, which is rare, though not absent from constitutional law. However, given the results in the Baltimore case, it is not unlikely that the court will rule in favor of free speech.

 

 

 

Bibliography

 

Cohen, David S. “How the Supreme Court’s First-Amendment Case Could Help Abortion Clinics.” Rolling Stone, 20 Mar. 2018.

https://www.rollingstone.com/politics/california-SCOTUS-first-amendment-abortion-case-pregnancy-centers-w518068

 

First Resort, Inc. v. Herrera, 860 F.3d 1263, 2017 U.S. App. LEXIS 11408, 2017 WL 2766094 (9th Cir. Cal. June 27, 2017)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=6df259cd-40d9-4e18-9391-fc60bfb65883&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5NWJ-MTB1-F04K-V1R1-00000-00&pddocid=urn%3AcontentItem%3A5NWJ-MTB1-F04K-V1R1-00000-00&pdcontentcomponentid=6393&pdshepid=urn%3AcontentItem%3A5NVW-2691-DXC8-70TJ-00000-00&pdteaserkey=sr7&pditab=allpods&ecomp=Ly_k&earg=sr7&prid=03602bed-0f34-44e7-8252-2167b2202c5d

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 2018 U.S. App. LEXIS 297, 2018 WL 298142 (4th Cir. Md. January 5, 2018)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=3b9a0592-191f-4a95-9263-0162358c406e&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5RBH-DSD1-F04K-M2S4-00000-00&pddocid=urn%3AcontentItem%3A5RBH-DSD1-F04K-M2S4-00000-00&pdcontentcomponentid=6388&pdshepid=urn%3AcontentItem%3A5RBN-8K61-J9X6-H4V8-00000-00&pdteaserkey=sr3&pditab=allpods&ecomp=Ly_k&earg=sr3&prid=63116fe3-4d86-4afa-acec-186052caa719

 

Nat’l Inst. of Family & Life Advocates v. Becerra, 2017 U.S. Dist. LEXIS 161343 (S.D. Cal. September 29, 2017)

https://advance-lexis-com.libproxy.temple.edu/document/?pdmfid=1516831&crid=4d1ecdc0-67fe-4305-b66c-89b885473521&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PKR-P1G1-F04C-T1C4-00000-00&pddocid=urn%3AcontentItem%3A5PKR-P1G1-F0h

 

Liptak, Adam. “Supreme Court Warily Eyes California Law Involving Abortion and Free Speech.” New York Times, 20 Mar. 2018.

https://www.nytimes.com/2018/03/20/us/politics/supreme-court-abortion-free-speech-crisis-pregnancy-centers.html

 

Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751, 60 U.S.L.W. 4795, 92 Daily Journal DAR 8982, 6 Fla. L. Weekly Fed. S 663 (U.S. June 29, 1992)

https://advance-lexis-com.libproxy.temple.edu/search/?pdmfid=1516831&crid=ef405cc7-0d8b-4bd0-b8e8-9e54f096c077&pdsearchterms=planned+parenthood+v.+casey%2C+505+u.s.+833&pdstartin=hlct%3A1%3A1&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=hlct%3A1%3A1&ecomp=556dk&earg=pdpsf&prid=8bed6847-224d-4283-99c4-bf7641ab3ce5

Discrimination or Compelled Speech? Two Legal Views…

Owner of Masterpiece Cakeshop, Jack Phillips. Image from The Wall Street Journal.

 

In Colorado, in 2012 Charlie Craig and David Mullins visited Masterpiece Cakeshop, which was owned by Jack Phillips. The gay couple visited in hopes to order a cake for their post-wedding ceremony but were refused service after Phillips learned that the duo was planning on purchasing a cake to celebrate their marriage. Phillips cited his religious beliefs as a Christian as a reason for the denial of the transaction. The couple then left the establishment and filed a complaint to the Colorado Civil Rights Commission under the state’s Public Accommodations Discrimination Law, which prevents retail business from discrimination of disabilities, gender, race, and sexual orientation. Colorado is one of 21 states in the nation that includes a public accommodation law which helps prevent discrimination. Phillips was ordered by the state to reverse his business ethics and to seek training on elimination discrimination.

 

After Phillip’s disclosed that he lost 40 percent of his business after the legal battle, he decided to leave the wedding cake business and filed an appeal that landed him in the Supreme Court, thus the Masterpiece Cakeshop v. Colorado Civil Rights Commission case was born. The case held oral arguments on December 5th, 2017 and is currently awaiting a ruling later this year. The general consensus from the oral arguments was that using religion to justify discrimination could yield a dangerous rhetoric, but also that if ruled in favor of Phillip’s could open a Pandora’s box of issues and would undermine hundreds of antidiscrimination laws that have been set into place. In Newman v. Piggie Park Enterprises, Inc. similar discrimination was enacted when two African Americans were refused service at a drive-in in South Carolina due to their race and were brought to the Supreme Court where the defendant cited his religious freedom to justify his refusal of service. Granted, this case was from 1968 and was introduced after the Civil Rights Act of 1964, it has all the same elements as the current case.

 

Phillip’s had also argued that his freedom of speech was violated due to being forced to create the cake for the gay couple after the initial feedback from the Colorado Civil Rights Committee required him to do so and seek anti-discrimination training sessions. Phillips stated that creating cakes is a form of artistic expression and under the First Amendment, he should not be forced by the state of Colorado to engage in ‘compelled speech’ that violates his religious beliefs. The couple has argued that his artistic expression statement is false due to the fact that they were looking through a book of already created cakes and not asking him to create something new, rather choosing from a list of already made products.

 

Another almost identical case emerged in August of 2017, Department of Fair Employment and Housing v. Cathy’s Creations The Department of Fair Employment and Housing complained that Cathy Miller violated similar state anti-discrimination laws which prohibited businesses from refusing goods or services to anyone on the basis of several characteristics including race, gender, religion or sexual orientation. The California court ruled in favor of Miller’s right to freedom of speech and artistic expression was greater than a state’s interest in preventing discrimination and could not be used to compel speech.

 

There’s no doubt the Supreme Court will be using the case above when ruling a ruling later this year since the circumstances are almost identical. Forty-five states currently have anti-discrimination laws that protect individuals from several forms of prejudice/bias and Colorado’s states that any form of discrimination against any group or individual who is opposed to limiting goods or services to the oppressed are deemed as unlawful. The Masterpiece Cakeshop case is a difficult one to rule on and it’s understandable why it has taken so long to come to a ruling. On one hand if the Supreme court rules in favor of the baker the excuse for denying service to others is justifiable under religious freedom, it will continue to happen and will be taken advantage of indefinitely and years of anti-discrimination laws will be rendered pointless if an organization just has to cite their First Amendment right to deny not only gays but minorities too. If the case is ruled in favor of the gay couple, then the freedom of artistic expression and freedom of speech will be challenged. It more than likely will come down to proving that Philips was, in fact, using an artistic expression or if having made past cakes and offering them for resale constitutes as them being labeled as products and not art.

 

 

Expressions Set To Determine Retail Transparency and Fate

By Katelyn English

Across the United States, retail sale prices inform consumers about merchandise’s monetary value. Most Americans will see a store product’s sales tag amount, ready their wallet at the cash register and consider that price as a factor in their choice of payment method.

Pew Research Center shows nearly six out of ten, roughly 58 percent of adults report having credit card bills as part of their regular expenses. Yet, a New York statute bans sellers from announcing credit card surcharge prices, stating fines and jail time as legal penalties. Some retailers see this as their truthful commercial speech, protected by the First Amendment, violated. As the law allows for original price sale inflation and a discount amount for cash purchases via price tag or word of mouth, it denies sellers the right to place on a price tag or say—surcharge— to inform customers about credit card swipe fees (Volokh).

On October 3, 2013, five retailers brought suit against New York State’s Attorney General and District Attorneys from New York, Kings and Broome Counties questioning the constitutionality of New York General Business Law section 518. The United States Court for the Southern District of New York originally presided over the case noting the statute surfaced after the lapse in Congress’s 1976 no-surcharge amendment to the Truth in Lending Act, which echoes section 518 saying, “[n]o seller in any sales transaction may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means” (EXPRESSIONS HAIR DESIGN V SCNEIDERMAN, 975 F. Supp. 2d 430 U.S. Dist. 2013).

The court also said the credit card industry started pushing for state-level no-surcharge laws— again meaning the prohibition of sellers saying or posting the term surcharge for consumer information, not preventing them from obtaining credit card swipe charges via a cash discount scheme—creating laws in ten states similar to New York’s section 518 (Id. at 7). Further, the court points out how credit card companies decided to include contractual no-surcharge provisions in their agreements with retailers. It noted that Visa and MasterCard’s actions in recently dropping these contractual provisions led to the state no-surcharge law’s renewed importance (Id. at 8).

Why would New York retailers not want to charge higher prices for credit card transactions when they are paying a percentage for credit card swipe fees? They can and still do, but not through surcharges as section 518 holds: “No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means” (N.Y. Gen. Bus. Law § 518). Retailers are essentially left with two options—charge the same price for cash and credit transaction payments or separate prices for cash and credit customers thus describing the difference as a “cash discount” as opposed to a “credit card surcharge” (Salzman, Pacific Legal Blog).

The district court expressed the frustration retailers faced (Id. at 8). It’s case facts show how four of the five retailers in the case charged the same price for all transactions including credit cards for fear of violating the statute. It stated only Expressions Hair Design placed a counter sign notifying its customers of a three percent charge for credit card transactions due to high swipe 3 fee charges by credit card companies. But Expressions even erred on the more cautious side removing its sign and watching its language when a customer who was a lawyer reminded the salon of New York’s no-surcharge law.

In the end, the district court ruled section 518 was unconstitutional. It applied the four-part test established in Central Hudson Gas & Electric Corp. v. Public Service Commission saying the statute deserved “heightened judicial scrutiny” due to the law’s disclosure requirement and outright prohibition on speech (Id. at 12). To meet the test, the district confirmed three test reasons—(1) the retailers’ restricted speech concerned lawful conduct and was not misleading (Id. at 13), (2) the statute does not “directly advance any interest” protecting customers from fraud (Id. at 13), (3) the statute is “far broader than necessary” to prevent fraud (Id. at 14)

However on September 29, 2015, the United States Court of Appeals for the Second Circuit held section 518 did not violate First Amendment—speech. It said the law “regulated only conduct” in that the law “simply prohibits imposing credit-card surcharges,” not “referring to them” or “engaging in advocacy related to them” (EXPRESSIONS HAIR DESIGN V SCNEIDERMAN, 808 F. 3d 118 U.S. App. 2015). The appellate court did bring up United States v. O’Brien. It concluded, however, that the plaintiffs referenced section 518 as regulating exclusively speech, whereby questioning whether the regulated conduct was “inherently expressive” implicating First Amendment protection fell on deaf ears.

Soon after, the United States Supreme Court granted certiorari to review the case. How it will rule as to “[w]hether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held)” is up for debate (SCOTUSblog).

A time existed when commercial speech received no protection under the First Amendment. Yet, the United States Supreme Court’s attitude towards this began shifting in the 1960s to the 70s seen in the Court’s cases—New York Times Co. v. Sullivan where it held paid advertisement had First Amendment protection despite publication for profit and Bigelow v. Virginia where it ruled Virginia could not criminalize New York abortion advertisements in its state newspapers paving 4 the way for Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., a 1976 case where the Court held the First Amendment affords some protection for commercial speech when it struck down a Virginia law banning pharmacists from advertising prescription drug prices, “truthful information” solely about lawful activity (Sukhatme, Harvard Law).

More recently, the Eleventh Circuit and Eastern District of California heard cases on the constitutionality of state laws prohibiting credit card surcharges holding similarly to the district court in Expressions Hair Design v. Scneiderman.

In November 2015, the Eleventh Circuit held a Florida statute “targeted expression alone,” and that “there is no real-world difference between a surcharge and a discount” meaning the law violated retailers’ commercial free speech in defining price differences between credit and cash sales (DANA’S R.R. SUPPLY V ATTORNEY GENERAL, 807 F.3d 1235 11th Cir. 2015). In March 2015, the Eastern District of California ruled similarly on California’s law. (ITALIAN COLORS REST V HARRIS, 99 F. Supp. 3d 1199 E.D. Cal. 2015).

The Court’s cases have cemented its commitment in granting commercial speech First Amendment protection according to legal enthusiasts, such as Micah L. Berman, who have emphasized the Court’s growing interest in commercial speech’s evolution.

Berman, an assistant professor of Public Health and Law at Moritz College of Law, sums up and interprets what Mermin and Graff write in their work titled The First Amendment and Public Health that the Court’s “commercial speech doctrine is deemed ‘an amalgam of strict scrutiny and intermediate scrutiny,’ leaning ever further in the direction of strict scrutiny” (Berman, The Georgetown Law Journal). He goes further to state that many believe the Court will soon grant full protection to commercial speech, noting a majority of the Court “subscribes to the view” Justice Stevens compiled in Rubin v. Coors Brewing Co—law that deprives information from the public for its own good offends an “informed citizenry,” a primary goal of the Free Speech Clause, violating the First Amendment (Berman).

This case not only has the potential to promote consumer pricing transparency, but it also can cause the “fall in credit card swipe fees” possibly “saving retailers millions” as many economists have predicted (Jenkins and Brooks, Sedgwick LLP). The Supreme Court has the ball in its court to determine the fate of retail and how consumers can be made aware of products they purchase. Because the Court has upheld truthful information flow to inform the public time and again, New York can seemingly look forward to a tough case to win.

 

Works Cited

Berman, Micah L. “Manipulating Marketing and the First Amendment.” The Georgetown Law Journal. Web. 1 Nov. 2016.

Dana’s R.R. Supply v. Attorney General, 809 F.3d 1282, 2016 U.S. App. LEXIS 1190 (11th Cir., 2016)

Expressions Hair Design v. Scneiderman, 975 F. Supp. 2d 430, 2013 U.S. Dist. LEXIS 143415 (S. Dist., N.Y., 2015)

Expressions Hair Design v. Scneiderman, 808 F. 3d 118, 2015 U.S. App. LEXIS 21521 (2d Cir., 2015)

Italian Colors Rest v. Harris, 99 F. Supp. 3d 1199, 2015 E.D. LEAGLE (2015)

Jenkins, Kirk and Meegan Brooks. “Justices Eye Credit Card Surcharge Laws and Free Speech.” LAW360. Web. 1 Nov. 2016.

N.Y. General Business Law § 518 (McKinney 1996)

Salzman, Larry. “Defending the free speech rights of retailers.” Pacific Legal. 22 Nov. 2016. Web. 1 Nov. 2016.

Sukhatme, Neel. “Making Sense of Commercial Speech: A Theoretical Framework and a Case Study in Food and Drug Law.” Harvard Law School. 22 April 2005. Web. 1 Nov. 2016.

Volokh, Eugene. “Supreme Court’s new First Amendment price advertising case – can allow ‘cash discounts’ but forbid ‘credit card surcharges’?.” Washington Post. Washington Post, 29 Sept. 2016. Web. 2 Dec. 2016.

“What Americans Pay For – And How (III. Consumer Credit).” Pew Research Center Social Trends. Pew Research Center, 7 Feb. 2007. Web. 1 Nov. 2016.

First Amendment Rights of Public Employees

Ritomaitree Sarkar
Blog Post
Communication Law

First Amendment  Rights of  Public Employees

Public sector employees enjoy Constitutional protections in the workplace that in many cases their private sector counterparts do not. Until the middle of the last century, it was well established that public employees enjoyed free speech rights under the First Amendment, but that public employers were privileged to substantially restrict the exercise of those rights as a condition of public employment,( Adler v Board of Education, 342 U.S. 485 (1952). Over subsequent years, First Amendment protections of public employees were greatly expanded as the Supreme Court clearly established that public employers could not, as a condition of employment, require public employees to relinquish substantial rights to associate freely with others or to refrain from compelled speech (in the form of loyalty oaths, etc.).  (Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).

But firstly what do we understand by First Amendment?

The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. (“U.S. Const. Amend. I”)

So in laymen’s language this means, an American retains the right to practice a  religion of his or her choice,  to say just about anything (other than some narrow categories of speech such as obscenity and defamation), the right of a free press, and freedom to assemble peacefully anywhere. In this article I will be focusing more on one pillar of the First Amendment which is freedom of speech.

The questions we will examine here is how far does the First Amendment go to protect the speech of government employees?

Does it allow the government to use a public employee’s speech as the ground for discharge or denying a promotion?

Ironically the answer to the last question according to the Supreme Court at one time was a simple ‘Yes’.

By 1967 the Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s interest in free expression. (Kevishian.)

Sometimes public employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. For example, in his book Balancing Act: Public Employees and Free Speech, David Hudson Jr. reveal that public employees have been disciplined for:

  • Criticizing a police policy that placed primarily African-American officers on the front lines of a community-policing project in certain neighborhoods. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Uttering a racial slur at a dinner party. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Complaining that a police helicopter unit was not operating safely. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Refusing to change a college student’s grade from an F to an “incomplete” when the student had attended only three of 15 classes. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Failing to remove a religious pin from a uniform. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)

 

In one of the recent examples Robert R. Bennie, Jr., Plaintiff, v. John Munn, et al., in his official capacity as Director of the Nebraska Department of Banking and Finance, 2016 case, Robert (Bob) Bennie, like millions of Americans, was working for a private business but under government contract. What got him into trouble is that the regulators didn’t like Bennie’s political speech. Until November 2010, Bennie worked for LPL Financial (LPL). LPL is a broker-dealer, meaning it holds accounts and assets and executes financial transactions. It operates through agents like Bennie, who deal with customers. As a broker-dealer, LPL is subject to regulation by the Nebraska Department of Banking and Finance (department).

In 2010 The Lincoln Journal Star ran a story about Bennie’s role in the Tea Party political movement. The article quoted Bennie denouncing the government and politicians, including President Barack Obama. (http://journalstar.com/news/local/911/judge-dismisses-bob-bennie-lawsuit-against-state-banking-officials/article_4fd26a84-7c0f-57cb-b4e4-838ad79f39bb.html)

After the article was published Bennie noticed a change of behavior of LPL towards his work. LPL explained that since a recent internal reorganization, Bennie’s proposed advertisements were reviewed by a senior analyst. Department employees asked whether LPL had any guidelines about agents like Bennie publicly communicating their political views. After living under such restrictions Bennie contacted Nebraska Governor David Heineman and told him the department was targeting Bennie and harassing him.

Bennie then sued, arguing that the state regulators violated the First Amendment by retaliating against Bennie through their emails to his employer based on his political speech.

The emails were certainly problematic, because it implicitly pressured LPL to curtail Bennie’s speech to avoid problems with the department. The emails were also evidence of a deeper problem, as the district court found: that the state regulators “were looking for reasons to go after” Bennie and “made regulatory inquiries of LPL that were motivated, to varying degrees, by the content of Bernie’s speech.” ( George Lee, Contributor to Forbes magazine)

For the state regulators to allow their apparent disagreement with or even distaste for what Bennie had to say politically, or how he said it, to influence how the department treated him and his employer was wholly inappropriate and also absolutely inconsistent with the First Amendment. Bennie has filed a petition for certiorari by the U.S. Supreme Court.

Branti (Branti v. Finkel, 445 U.S. 507 (1980) is one of a series of cases in which the court has prevented firings based on the political beliefs of employees. Branti was one of the six assistant public defenders fired from a country defender’s office simply because they were Republicans and the newly appointed County Defender was a Democrat. The court cited that sometimes it may be permissible to use political affiliation as a basis for hiring and discharge decisions (for example no one would doubt the right of the President to hire only cabinet officers or speechwriters that share his or her political affiliation) but said that, assistant county defenders did not hold the type of decision making power that made political affiliation an appropriate consideration. ((Branti v. Finkel, 445 U.S. 507 (1980))

Ten years later in Rutan v Republic party of Illinois (Rutan v. Republican Party of Illinois (88-1872), 497 U.S. 62 (1990) a case involving the staffing of Illinois prisons, the Supreme Court extended protection for political beliefs to initial hiring decisions as well as decisions relating to promotions and transfers.

In 2006 in Garcetti v Ceballos (Garcetti v. Ceballos Supreme Court of the United States, 2006 547 U. S. , 126 S. Ct. 1951, 164 L. Ed. 2d 689) the court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles District Attorney’s office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in affidavit prepared by a deputy sheriff.

In a 5 to 4 vote the Court rejected the employee’s claim holding that the First Amendment does not protect public employees’ for statement made pursuant to their official duties. According to Justice Kennedy, the critical fact in this case was that “his expressions were made pursuant to his duties as a calendar deputy. Considering the fact that Ceballos spoke as a prosecutor fulfilling his responsibility to advise his supervisor about how to proceed with a pending case-distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline”.

In another case Pickering v. Board of Education (Pickering v.Board of Education
391 U.S. 563 (1968
)
a public school teacher was fired for writing a letter to a newspaper critical of the local school board. In ordering the teacher reinstated the court found that a public employee’s statements on matter of public concern could not be the basis for discharge unless the statement were of the sort to cause a substantial interference with the ability of the employees to continue to do his job.

In Bob Bennie’s case, the circuit court acknowledged that the regulators’ actions were inconsistent with the First Amendment, but affirmed the ruling because two of the three circuit court judges could not find “clear error” in the trial court’s findings on the “ordinary firmness” test.  In a split decision in May 2016, the 8th Circuit upheld the dismissal of Bennie’s lawsuit, but called the banking officials’ conduct wholly inappropriate and “absolutely inconsistent with the First Amendment.” This case now will go to the Supreme Court.

There have been many instances like the above where public sector officers were subjected to harassment because of making opinionated statements regarding the government, religion etc.

In essence the U.S. Supreme Court has carved out an exception to its First Amendment jurisprudence for public employees. Basic free-speech rules that apply outside the workplace sometimes have little relevance for public employees. For instance, that as a general matter the First Amendment prohibits governmental discrimination based on the content or viewpoint of an individual’s speech. For example, a law prohibiting citizens from criticizing elected officials would be impermissible because it would discriminate on the basis of content, allowing praise of government officials but not allowing criticism.

Yet such fundamental First Amendment principles do not always apply to public employees in the workplace. For example, a public employee could be fired for saying, “My superior or co-worker is unqualified and corrupt.” Even though that employee would clearly be expressing a particular viewpoint, the Supreme Court has recognized that “many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.”

The reason the Supreme Court states is, public employers must maintain efficient operation of the people’s business. For that reason, it is acceptable for government employers to discipline employees for speech that undermines the integrity of the office or disrupts morale. This discipline can take many different forms, including transfer, demotion or even discharge. Unfortunately, government employers sometimes retaliate against employees for speech that concerns an important public issue a matter of “public concern,” as the Supreme Court has termed it. Because public employers and employees both have important interests at stake in these cases, the courts often are faced with the difficult task of balancing these competing interests. The Supreme Court recognizes that government employers must protect business efficiency. But the Court also has said that “the threat of dismissal of public employment is a potent means of inhibiting speech.”(Balancing Act: Public Employees and Free Speech)

If the US Supreme Court does agree to hear the Bennie case it will offer more guidance on how lower courts should proceed to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s free expression.

 

Bibliography

  1. Bob Bennie legal case, the primary source of information for the blog post- http://www.forbes.com/sites/georgeleef/2016/10/15/regulators-retaliate-against-tea-party-activist-for-his-free-speech-and-get-away-with-it/#114a91cd2f68
  2. Free expression in America: A Documentary History by Sheila Suess Kennedy.
  3. Reflections on Freedom of speech and First Amendment by George Anastaplo.
  4. Rutan v Republic of Illionois- https://www.law.cornell.edu/supct/html/88-1872.ZO.html
  5. Rutan v Republic of Illionois- http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/protection-of-penumbral-first-amendment-rights/rutan-v-republican-party-of-illinois/
  6. Garcetti v Ceballos- Lexisnexis
  7. http://www.kentlaw.edu/faculty/mmalin/classes/PublicSectorSp09/CourseDocs/Garcetti.pdf- Garcetti v Ceballos
  8. https://supreme.justia.com/cases/federal/us/391/563/case.html- Pickering v Board of Education.
  9. Freedom of Speech- A Reference Guide to the United States Constitution- https://www.questia.com/library/117829328/freedom-of-speech-a-reference-guide-to-the-united
  10. Balancing Act: Public Employees and Free Speech By David L Hudson Jr