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.
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
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.
Cohen, David S. “How the Supreme Court’s First-Amendment Case Could Help Abortion Clinics.” Rolling Stone, 20 Mar. 2018.
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.
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.
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.
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?
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.
Technology is present in nearly every aspect of modern day society. Most Americans are heavily reliant upon at least one form of technological device. According to the Pew Research Center, 92 percent of Americans own a cellphone and 73 percent own some form of desktop computer or laptop as of 2015. On every individual’s personal device are thousands of text messages, dozens of voice mails and passwords, hundreds of emails, and other personal information people save under the assumption that nobody else, including the United States government, will be able to access them. Privacy of our information, whether virtual or not, has become something most Americans and most major corporations prioritize.
On December 2, 2015 in San Bernadino, California, 14 people were killed and 22 others were injured in a shooting and attempted bombing, both acts of terrorism (Benner, Lichtblau, New York Times). In an attempt to gain knowledge about the shooting and protect against future acts of terrorism, the FBI ordered Apple Inc. to rewrite its encryption safeguards to “unlock” the shooters iPhone. Although the FBI ended up dropping its case against Apple in late March, the initial order “set off a furious public battle on Wednesday between the Obama administration and one of the world’s most valuable companies in a dispute with far-reaching legal implications,” according to the New York Times.
Technology has undoubtedly complicated the law. The government is now faced with questions as to what qualifies as speech under the First Amendment and what forms of speech are protected in such a technologically advanced world. According to Business Insider, one of Apple’s main arguments against the FBI’s order was that the order was forcing them to rewrite their code which was created to give users privacy. Apple’s CEO, Timothy Cook, as well as the company lawyers believe this order undermined consumers right to privacy and violated their freedom of speech as the First Amendment states that one cannot force another to say or write something they do not want to.
Past cases such as Bernstein vs. the U.S. Department of State, and the Universal City Studios vs. Corley have set precedent for cases similar to Apple Inc. vs. the FBI and may have aided the Supreme Court in deciding if Apple’s argument was valid or not if the FBI had not dropped its case.
In the 1997 case, Bernstein vs. the U.S. Department of State, the Ninth Circuit Court of Appeals ruled that source code was in fact speech protected by the First Amendment and that the government did not have the power to prohibit its publication (BERNSTEIN V U.S. DEPARTMENT OF STATE, 945 F. Supp. 1279, 1997). Daniel J. Bernstein, a graduate student at the University of California at Berkeley challenged the U.S. Department of State, Energy, and Justice’s requirement that he get his creation of the mathematical algorithm he called “Snuffle” approved by the government prior to publishing its source code or discussing it at a mathematical conference. This case set precedence for many future cases in that Bernstein’s source code “Snuffle” was ruled proved to be equivalent to speech.
In Universal City Studios vs. Corley, decided by the Second Circuit Court of Appeals in 2001, Universal City Studios and others took Corley to court for posting “DeCSS,” a computer program that is designed to circumvent “CSS” (UNIVERSAL CITY STUDIOS V CORLEY, 273 F.3d 429 2nd Cir. 2001). CSS encrypts DVDs so they can only be played on authorized technology. Codes are already protected as speech under the First Amendment and laws pertaining to code such as the DMCA, Digital Millennium Copyright Act, are subjected to scrutiny and the scope of protection of code changes in most circumstances. In this case, the DMCA was held as constitutional because the DeCSS was harming plaintiffs by exposing them to piracy and creating a need to work on new, stronger safeguards. This pertains to Apple Inc. vs the FBI case because the FBI asked Apple to create something to decrypt Apple products, thus compromising the privacy and safety of Apple consumers since they assume they have a certain level of privacy from everyone, including the federal government.
The FBI dropped its case against Apple after finding another way to gain access to the shooter’s phone from an outside source, whose methods have not yet been made clear to the public. According to the Washington Post, “the stunning move averts a courtroom showdown pitting Apple against the government — and privacy interests against security concerns — that many in the tech community had warned might set dangerous precedents” (Zapotosky, Washington Post). While this ends the conflict within the courts it does not end the debate on whether the federal government can force a corporation to write code it does not want to write or the debate on what kind of privacy and security one can expect with use of technology. David Pierson, reporter for the Los Angeles Times expects this to lead to “an arms race in encryption tools” until legislation sets guidelines for both tech creators and law enforcers (Pierson, Los Angeles Times).
This case will be just one of many that will change the way privacy, security, and the rights of individuals using technology are viewed in the United States. With this case being dropped by the FBI, there is no longer a chance that it will be seen by the Supreme Court, however it sparked conversation and raised important questions regarding privacy and technology. Now, there may be more of an interest in Congress to create legislation surrounding technological security and the rights of the government.
Lichtblau, Eric, and Katie Benner. “Apple Fights Order to Unlock San Bernardino Gunman’s IPhone.” The New York Times. The New York Times, 17 Feb. 2016. Web. 03 Apr. 2016.
Pierson, David. “FBI vs. Apple: How Both Sides Were Winners and Losers.”Los Angeles Times. Los Angeles Times, n.d. Web. 03 Apr. 2016.
Sterbenz, Christina. “Apple Is Using 2 Main Arguments in Its Epic Fight against the FBI.” Business Insider. Business Insider, Inc, 25 Feb. 2016. Web. 03 Apr. 2016.
“Technology Device Ownership: 2015.” Pew Research Center Internet Science Tech RSS. Pew Research Center, 29 Oct. 2015. Web. 03 Apr. 2016.
Zapotosky, Matt. “FBI Has Accessed San Bernardino Shooter’s Phone without Apple’s Help.” Washington Post. The Washington Post, n.d. Web. 18 Apr. 2016.
There have been several court cases regarding the right of private employers to restrict the freedom of expression of their employees. The primary piece of legislation referenced in cases concerning this issue is Title VII of the Civil Rights Act of 1964.
Title VII of the Civil Rights Act of the 1964 states, “to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.” This law prohibits the mistreatment of applicants or employees based on religious beliefs, allowing employees to be subjected to various forms of harassment due to religious views, denying reasonable employee accommodation, and the retaliation on behalf of the employer against any employee who participates in protected activity (Liptak). Even with the current law in place for 52 years, there are still cases to this day that require the interpretation of Title VII of the Civil Rights Act of 1964.
There have been some recent examples of this issue being called into question in court. At the end of March this year arguments were heard in the Zubik v. Burwell case. This was a case with seven petitioners, including Pittsburgh Bishop David Zubik and the Little Sisters of the Poor. The respondent in this case was United States Secretary of Health and Human Services, Sylvia Burwell. The clergy are objecting to a rule from the Department of Health and Human Services that states they must provide employees with free contraception or notify the government and have their employees’ health insurance plans provide independent coverage. This case, and other recent ones, deal specifically with freedom of religious expression. The passing of justice Antonin Scalia will complicate this case as the eight-justice panel could be split 4-4 on the issue after Scalia voted in favor of Hobby Lobby in the Burwell vs. Hobby Lobby Supreme Court case which was decided by a 5-4 majority.
The Burwell v. Hobby Lobby case established that for-profit corporations have the ability to opt-out of contraception coverage established in the Affordable Care Act for religious reasons (Hobby Lobby Case). In Zubik v. Burwell, the plaintiffs are attempting to expand the religious freedom of the corporations which they believe is restricted by a two-page form that employers must fill out explaining their reasoning behind opting out (Banett). The plaintiffs believe employers should not have to fill out the two-page form which exempts them from providing the contraceptive coverage. Despite the issue of religious freedom in compliance with the Affordable Care Act having largely been settled in the Hobby Lobby case, this attempt to expand upon the Hobby Lobby decision is what has the Supreme Court listening to the case.
The Affordable Care Act was signed into law by President Obama in 2010 and upheld by the Supreme Court in 2012. One of the key mandates in the ACA is that it requires companies to pay for insurance coverage for contraception for their employees. Hobby Lobby, which is a family owned company that specializes in arts and crafts based out of Oklahoma City, Oklahoma, argued that the store should not have to provide contraception coverage to their female employees arguing that the law infringes upon their religious liberty. In September of 2012, Hobby Lobby filed a suit in the U.S. District Court over the ACA’s mandate to provide “four specific potentially life-terminating drugs and devices” (Hobby Lobby Case). In November of 2013, Burwell v Hobby Lobby was taken up by the U.S. Supreme Court in regards to corporations having to provide contraception for their employees despite the employer’s religious beliefs. In a 5-4 vote on June 30, 2014 in the Supreme Court ruled, “the contraceptive mandate, as applied to closely held corporations, violates the Religious Freedom Restoration Act of 1993. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.” (Supreme Court). As a result, Hobby Lobby does not have to adhere to the Affordable Care Act mandate to supply employees with contraceptive coverage because Hobby Lobby believed that providing the coverage was interfering with the religious practices of its employees (Religious Freedom Restoration Act of 1993).
Another recent case that dealt with religious freedom and employers was EEOC v Abercrombie & Fitch. In 2008, Samantha Elauf at the age of 17, applied for a job at an Abercrombie & Fitch Store at the Woodland Hills Mall in Tulsa, Oklahoma. Elauf, a practicing Muslim, wore a black hijab to the interview, but did not tell her employer why she was wearing the headscarf. Elauf was ultimately not hired because the company claimed her headscarf broke the store’s dress code or “look policy.” After Elauf was denied employment with this Abercrombie & Fitch store, she filed a claim with the Equal Employment Opportunity Commission (EEOC) that she was denied employment based on religious discrimination. The EEOC then filed a suit against Abercrombie & Fitch on the basis that they denied her employment based on religious discrimination and failing to accommodate her religious beliefs by denying her to wear a hijab. Abercrombie argued that it was up to the potential employee (Elauf) to request for accommodation. This case was first heard by the District Court and “granted summary judgement on liability to EEOC” after deciding with the established evidence that Abercrombie was on notice of Elauf’s faith when she showed up to the interview with a hijab and denying her employment was religious discrimination (EEOC). Abercrombie appealed this decision and the case was then taken to the U.S. Court of Appeals for the 10th Circuit. The Tenth Circuit Court sided with Abercrombie & Fitch ruling that the employer was not given sufficient notice of Elauf’s religious beliefs when she interviewed with her hijab and that this would cause a contradiction with the store’s dress code. The case then was heard by the U.S. Supreme Court after the Tenth Circuit ruled in favor of Abercrombie & Fitch. In an 8-1 decision, on June 1, 2015, the U.S. Supreme Court sided with the EEOC over Abercrombie & Fitch. Justice Antonin Scalia stated, “Title VII forbids adverse employment decisions made with a forbidden motive.” and continued on this point during his writing that, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (New York Times) (Supreme Court).
In conclusion, private employers and companies have religious freedom by being able to deny the mandate in the ACA which states they must provide for contraceptive coverage, but employers do not have the right to use someone’s religious practice to determine whether they are capable of working at their company. However, with the Zubik v Burwell case ongoing, the degree to which employers have the right to provide employees with religious freedom is uncertain.
“Abercrombie Resolves Religious Discrimination Case Following Supreme Court Ruling in Favor of EEOC.” N.p. 28 July 2015. Web. 05 Apr. 2016.
Banett, Carter. “The Zubik v. Burwell Case, Explained.” USA TODAY College. N.p., 18 Apr. 2016. Web. 19 Apr. 2016.
Brodsky, Alexandra, and Elizabeth Deutsch. “How Civil-Rights Law Could Overturn Hobby Lobby.” Bloombergview.com. N.p., 21 July 2014. Web. 5 Apr. 2016.
Citizens of the United States have to abide by many laws. However, when it comes to expressing one’s viewpoints, there is a constitutional amendment that protects the people. The First Amendment to the United States Constitution provides that no law may restrict the freedom of speech. With the 2016 Presidential election fast-approaching there will be signs expressing the views on which candidate should win the election. Many towns and local municipalities regulate signage, which raises an important question. What restrictions on signs in the public space, if any, violate the First Amendment?
The United States Supreme Court case City of Ladue v. Gilleo, 512 U.S. 43 (1994), brought about a controversial twist to the public when it comes to signs expressing one’s views. In that case, Margaret P. Gilleo, a resident of Missouri, placed a sign in her front yard expressing her opposition to the war in the Persian Gulf.While a sign expressing a political point of view may be considered the quintessential form of freedom of speech, it was removed because of a City of Ladue ordinance. After the disappearance of Gilleo’s two signs that she had placed on her lawn, she filed a complaint with police. The police informed her that her signs were prohibited due to a city ordinance. The U.S. Supreme Court ultimately decided the city’s ordinance was unconstitutional and in violation of Gilleo’s right to free of speech under the First Amendment.
Before the Supreme Court, the city argued that its total ban on residential signs except for those that fell within one of ten exemptions did not violate Gilleo’s First Amendment right to free speech. The Supreme Court upheld the lower courts holding that the City of Ladue’s ban on residential signs was in violation of Margaret Gilleo’s First Amendment right to free speech (Ladue).
The ruling supported the Supreme Court’s belief that a city cannot place limits on the free speech rights of residents unless there is a compelling reason. In this case, the city’s desire to decrease clutter in residential areas was an insufficient reason to justify a ban on signage, such as Gilleo’s signs expressing her opposition to the Persian Gulf War (Ladue). As a result, Gilleo’s placement of the signs on her lawn was protected.
The City of Ladue v. Gilleo case acknowledged the U.S. Supreme Court’s devotion to strict scrutiny of governmental attempts to restrict free speech rights. The case also established a guide for future cases where the balance between state regulation of signage and individual rights of expression may conflict (Ladue).
Recently, in Reed v. Town of Gilbert, 576 U.S. (2015), the United States Supreme Court considered whether content-based restrictions on signage violated the First Amendment. In 2005 the town of Gilbert, Arizona adopted a sign code that restricted the size, number, location, and duration of certain signs. Clyde Reed, the pastor of Good News Community Church,placed 15 to 20 temporary signs in various locations in the town. The sign code compliance manager cited the church for exceeding time limits when displaying signs and for failing to include the date of the event on the sign (Reed et al. v. Town of Gilbert, Arizona).
With religious content seeming like the only reason for the restrictions, Reed and the church filed suit in the United States District Court for the District of Arizona in March, 2008. The church claimed that the sign code violated their freedom of speech under the First Amendment. The District Court granted summary judgment in favor of the town. The United States Court of Appeals for the Ninth Circuit affirmed that ruling, holding that the town ordinance was a content neutral restriction on speech and did not violate the First Amendment. The church then appealed to the Supreme Court of the United States (Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 9th Cir. Ariz., 2013).
On June 18th, 2015 the Supreme Court reversed the Ninth Circuit and held that “a town ordinance that places different limits on political, ideological and directional signs violates the First Amendment” (Liptak). Justice Clarence Thomas held that Gilbert’s Sign Code restrictions did not survive strict scrutiny because the ordinance was not tailored to further a compelling government interest.
At the start of this article the question was posed whether restrictions on signs in the public violate the First Amendment. Any restrictions by municipalities must be content neutral, narrowly tailored, and be for a compelling government reason. It will be interesting to see how municipalities with signage restrictions meet that legal criteria.
“Ladue v. Gilleo – The Facts Of The Case, The Lower Courts Rule, The Supreme Court Rules.” – City, Speech, Free, and Residential. N.p., n.d. Web. 05 Apr. 2016.
Liptak, Adam. “Limits on Church Signs Ruled Unconstitutional.” The New York Times. The New York Times, 18 June 2015. Web. 05 Apr. 2016.
REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 (9th Cir. Ariz., 2013)
“City of Ladue v. Gilleo 512 U.S. 43 (1994).” Justica Law. N.P., 2015. Web. 07 Apr. 2016.
With the digital age came the ability to easily share information with countless viewers, making the Internet a new public platform. As such, speech on the Internet usually falls under protection of the First Amendment, giving every American the right to post whatever they want, unless the material is obscene or a ‘true threat.’
Unfortunately, the Internet fosters a market for revenge pornography. Revenge pornography is when “someone posts nude or sexually explicit photos without the consent of the person depicted”(Desai). This frequently occurring cyber-crime disproportionately targets women, who make up 90 percent of the victims with their harasser being an ex-partner (Desai). Bringing a civil suit against revenge pornography is a struggle for most women, emotionally, financially, and physically.And, as of 2015, only two states have enacted anti-revenge pornography laws, so there is little a civil suit could actually stand on (Desai). However, the creation and tailoring of laws specifically addressing revenge porn get a lot of pushback.
A major opponent of revenge porn laws is the American Civil Liberties Union (ACLU). Its stance is that First Amendment was created to “protect fair trade of ideas”(Desai), and that revenge porn laws would be prohibiting the sharing of these ideas. This played out in the 2015 case Patel v. Hussain (NO. 14-14-00459-CV), in which Nadia Hussain sued former boyfriend Akhil Patel for posting sexually explicit photos that Hussain had sent him during their relationship. Hussain claimed defamation from the release of her private photos, but the jury found them to be “substantially true,” classifying it as a valid idea to share on the public forum, protected by the First Amendment (Patel v. Hussain NO. 14-14-00459-CV).
Additionally, the First Amendment failed to protect Jennifer Vander Tuig in the 2013 case People v. Rosa (No. F063748). Vander Tuig had sent nude pictures of herself to her husband, Rosa. After the divorce, Rosa posted some of those photos online along with Vander Tuig’s personal contact information, resulting in threats, attacks, and solicitations. Because of the lack of specific laws, the court convicted Rosa on charges unrelated to the First Amendment: stalking, identity theft, and false impersonation (People v. Rosa No. F063748).
California and New Jersey are the only two states with revenge porn laws currently on the books. California’s bill puts emphasis on the point of consent, so victims like Hussain are better protected. In her case, Hussain sued Patel for posting her private, nude photos online, however, Patel claimed the copyright law protected him. The claim held in court because Patel took the pictures of Hussain, giving him ownership, and in turn, the First Amendment right to publish the photos at his will (Patel v. Hussain NO. 14-14-00459-CV). Despite Patel taking some of those videos and pictures unbeknownst by Hussain, copyright laws made her consent for publication unnecessary because she legally couldn’t claim ownership, and therefore control of imagery of her body. California is attempting to combat these rulings by focusing on consent instead of creators, giving the victim more legal ground (Desai).
California’s bill is a productive step in anti-revenge porn legislation, but it still fails to protect the 80 percent of cases that involve self-taken pictures. The law reads that it is a misdemeanor for “any person who photographs/records by any means the image of the intimate body part/parts of another identifiable person” (Desai). The law needs to be expanded to protect “selfies,” pictures the victims took themselves. Otherwise, those victims fail to be protected under the First Amendment. Without protection current law enforces victim-blaming and the idea that the victim should have known that public dissemination is a risk when taking such photos (Desai).
In a continually evolving tech world, digital and cyber crimes are becoming more prominent and should be further acknowledged and integrated into our laws. Tailored anti-revenge porn legislation needs to be provided under the protection of the First Amendment, especially when the crime affects half of the population. The government must deem revenge pornography the type of low-value speech that goes unprotected by law, or maybe even claim that the protection of women is a compelling state interest, allowing revenge porn to be regulated. Either way, the First Amendment must be expanded in order to fully protect victims in our current technological landscape.
Desai, Snehal. “Smile for the Camera: The Revenge Pornography Dilemma, California’s Approach, and Its Constitutionality.” Hastings Constitutional Law Quarterly (2015): n. pag. LexisNexis Academic [LexisNexis]. Web. 14 Apr. 2016.
Patel v Hussain. 14-14-00459. Court of Appeals of Texas, Fourteenth District, Houston. 2016. LexisNexis. Web. 28 March 2016.
People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013), review denied (June 19, 2013).