Monthly Archives: March 2017

Apart from the establishment clause, the Supreme Court has for the last decade taken a strong view of the First Amendments protections. Judge Neil Gorsuchs decisions on the U.S. Court of Appeals for the 10th Circuit align with that trend. In many ways, Gorsuchs opinions in this area are similar to those of the late Justice Antonin Scalia with the possible exception that Gorsuch has been more willing to find not only that the First Amendment has been violated, but also that defendants were not entitled to qualified immunity in those cases. It is unclear whether Gorsuch will continue that trend if he is confirmed, because cases in front of the Supreme Court tend to be closer than cases in the courts of appeals, and so qualified immunity is typically easier to get. I focus on cases in which Gorsuch has written a majority opinion, concurrence, or dissent, without regard to whether the decisions in question were precedential, on the theory that Gorsuchs writings will provide the greatest insight into his mindset.

Freedom of speech, the press and assembly

With few exceptions, Gorsuch has been willing to find in favor of First Amendment plaintiffs and against defendants attempting to assert immunity against a First Amendment claim.

In Walton v. Powell, in 2016, Gorsuch wrote a unanimous opinion affirming a district courts decision to allow a government employees Section1983 claim alleging that she was fired for her political affiliation to proceed. The court held that the McDonnell-Douglas burden-shifting framework does not apply to First Amendment retaliation claims, which are governed by a more plaintiff-friendly standard. It then applied that standard to uphold the employees claim, and deny the defendants qualified immunity defense.

In 2007, in Casey v. West Las Vegas Independent School District, Gorsuch wrote an opinion finding that a school district superintendents statements to her own school board were not protected citizen speech, but her statements to the state attorney general were. The court further held that qualified immunity was not available because it had been long established that when public employees speak to outside authorities on matters of public concern for reasons that are not job-related, their speech is protected.

In Rounds v. Clements, in 2012, Gorsuch wrote an opinion holding that a state prisoners First Amendment retaliation claim, which sought prospective relief, did not run afoul of the Eleventh Amendment. The prisoner, an electrician by trade, alleged that he suffered retaliation because he had reported to prison superiors that other prison officials were asking him to perform shoddy electrical work. The court held that the prisoner stated a claim, and that the claim fell under the Ex Parte Young exception to Eleventh Amendment immunity insofar as the electrician sought to be restored to his former status as a privileged prisoner.

In a notable 2016 dissent in A.M. v. Holmes, Gorsuch argued that a New Mexico statute prohibiting disruption in school did not apply to a seventh-grader who had pretended to burp in class. Distinguishing classroom antics from actions that substantially interfere with the actual functioning of the school, Gorsuch argued that the statute had been interpreted more narrowly than its text suggests, and disagreed with the majoritys decision to read it more broadly. The dissent did not rely on the First Amendment, but it suggests that Gorsuch may be willing to protect a substantial amount of on-campus speech.

Although these decisions all strongly suggest that Gorsuch will happily allow free speech claims to move forward, there are some open questions about how protective he will be of speech at the margins.

In Mink v. Knox, in 2010, Gorsuch wrote a concurrence in a case allowing a Section1983 claim against a deputy district attorney who had pursued a criminal libel charge against the publisher of an Internet-based journal. The court held, and Gorsuch agreed, that because the journal was engaged in parody, the speech was protected even as it related to matters of private concern. Gorsuch wrote separately to argue that the result was compelled by circuit precedent, chiding his colleagues for going further to defend that precedent. Although he did not tip his hand, the separate opinion suggests that Gorsuch may be more willing than some of his colleagues to permit libel claims against a parody.

In 2016, in Alvarez v. Grosso, Judge Gorsuch wrote an unpublished opinion holding that civilians had no right to attend military court-martial proceedings. The court held that commanders have wide discretion to bar civilians from the base, and that civilians have no constitutionally protected right to speak on military bases or to observe court martial trials.

The First Amendment and campaign finance

In Riddle v. Hickenlooper, in 2014, the 10th Circuit struck down a Colorado statute that effectively limited individual campaign contributions to write-in candidates to $200 while permitting donors to give up to $400 to candidates who ran in primaries. The statute had been challenged principally on equal protection grounds, but the First Amendment status of campaign contributions was also front and center. In a concurring opinion, Judge Gorsuch argued that the act of contributing to political campaigns implicates a basic constitutional freedom, one lying at the foundation of a free society and enjoying a significant relationship to the right to speak and associateboth expressly protected First Amendment activities. That language may suggest that Gorsuch is broadly sympathetic to the idea that money in politics is just another form of expression, and would be skeptical of campaign finance limits. On the other hand, Gorsuch cautioned against adopting a level of scrutiny for campaign contribution cases, noting that it wasnt necessary to do so in order to resolve the case, and that the Supreme Courts decisions had been unclear about what level of scrutiny applies.

The petitions clause

In 2007, in Van Deelen v. Johnson, Gorsuch wrote an opinion reversing a grant of summary judgment to county officials who had allegedly retaliated against a taxpayer who had filed appeals and lawsuits to challenge property tax assessments. Defending the right to petition the government for redress of grievances, Gorsuch wrote that [w]hen public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise. Good luck, President Trump.

The religion clauses

In American Atheists, Inc. v. Davenport, in 2010, a 10th Circuit panel had held that 13 12-foot crosses erected on public land to memorialize deceased Utah highway patrol officers ran afoul of the establishment clause because a reasonable observer would regard those memorials as endorsing Christianity. Rehearing en banc was denied, and Gorsuch dissented from that denial. In the dissent, Gorsuch argued both that the 10th Circuit had strayed from the Supreme Courts precedents, which had not recently applied the reasonable observer test to public displays, and that the 10th Circuit had applied the test in an expansive way by treating the reasonable observer as somebody who is biased, replete with foibles, and prone to mistake. The dissent sends a very clear signal that Gorsuch is on board with the more conservative understanding of the establishment clause embraced by the late Justice Antonin Scalia.

Gorsuchs views on free exercise issues are less clear because, to the best of my knowledge, he has not written an opinion in a case in which a constitutional free exercise challenge was brought unaccompanied by a statutory challenge under the Religious Freedom Restoration Act (RFRA) or Religious Land Use and Institutionalized Persons Act (RLUIPA). In 2013, he wrote a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius, arguing that the individual owners of the Hobby Lobby stores (the Green family) were entitled to relief under RFRA. Gorsuch explained that because the Greens are the human actors who must compel the corporations to comply with the [Affordable Care Acts contraception] mandate, their own personal religious beliefs were burdened by the mandate. In the process, Gorsuch argued:

No doubt, the Greens religious convictions are contestable. Some may even find the Greens beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isnt the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. See United States v. Quaintance, 608 F.3d 717 (10th Cir.2010) (an example of just that). And to know this much is to know the terms of the Religious Freedom Restoration Act apply. The Act doesnt just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nations long-held aspiration to serve as a refuge of religious tolerance.

Although this case arose under RFRA, and not the First Amendment, Gorsuch nevertheless signaled that he might take a very strong view of free exercise principles, consistent with the Supreme Court majority that affirmed the 10th Circuits decision in Hobby Lobby.

On the other hand, in 2014, in Ali v. Wingert, Judge Gorsuch wrote an opinion denying relief to a prison inmate who wanted to use only his newly adopted Muslim name on mail envelopes, instead of using both his Muslim name and his former name. The claims were brought under RLUIPA and also the First Amendments free exercise clause. Rejecting the RLUIPA claim, Judge Gorsuch acknowledged that if a prisoners sincerely held religious beliefs forbade any mention of a former name, then there might be a substantial burden on the inmate, but found that the facts in the complaint did not make such an allegation. Federal courts certainly are not arbiters of religious scripture or dogma, but to establish a RLUIPA claim they do require from the claimant some well-pleaded facts suggesting a substantial burden on a sincere religious exercise. The First Amendment free exercise claim failed for the same reason.

Also, in Abdulhaseeb v. Calbone, in 2010, Gorsuch wrote a concurring opinion in a RLUIPA case where the inmate alleged that a halal diet was not available. Gorsuch acknowledged that the law does not permit an institution to force an inmate to choose between violating his religious beliefs and starving to death. But he made it clear that he would not go further to hold that RLUIPA prohibits the prison from taking action that requires a prisoner to occasionally miss a normal meal because he refuses to eat the food, or that the statute requires any other accommodation for religious diet other than accommodating major religious holidays and the need to eat enough to live.

Posted in Nomination of Neil Gorsuch to the Supreme Court, A close look at Judge Neil Gorsuchs jurisprudence, Featured

Recommended Citation: Tejinder Singh, Judge Gorsuchs First Amendment jurisprudence, SCOTUSblog (Mar. 7, 2017, 11:16 AM), http://www.scotusblog.com/2017/03/judge-gorsuchs-first-amendment-jurisprudence/

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Judge Gorsuch's First Amendment jurisprudence - SCOTUSblog (blog)

Amazon has abandoned its legal battle to protect its Alexa assistant with First Amendment rights for now at least. The company filed a motion against a police search warrant in an Arkansas murder case earlier this month, but has now dropped the case after the defendant agreed to hand over the data contained on his Echo speaker to police.

In documents filed last Monday, defendant James Andrew Bates said that he was willing to allow law enforcement officials to review information contained on his Amazon Echo speaker, before the company handed the data over on Friday. Bates has pleaded not guilty to the murder of Victor Collins, who was found dead in Bates hot tub in November 2015.

Amazon said its search results were constitutionally protected opinion

Police had issued a warrant to seize subscriber and account information from Bates Echo, as well as all communication and transaction history from the device. Amazon provided the former, but argued against providing communication data, claiming that voice interactions with Alexa were protected by the First Amendment. That includes Alexas replies to a user Amazon claims that ranked search results are constitutionally protected opinion. Precedent for that argument was set by a 2014 case in which Google search results were classified as free speech by a San Francisco court, after a news website complained that its own pages were too far down the companys listings.

Amazon argued that police didnt have enough of a compelling argument in Bates case for it to hand over the data, with officials unable to prove that any potential information would not be available anywhere else. It remains to be seen whether Bates Echo does indeed have any pertinent information a hearing is scheduled for Wednesday this week. The defendants acquiescence also means that we dont yet have a definitive answer on whether Alexa is indeed protected by the First Amendment.

The rest is here:
Amazon gives up fight for Alexa's First Amendment rights after defendant hands over data - The Verge

HAMDEN Journalists and lawyers are teaming up to educate young people about free speech and open government.

The Connecticut Foundation for Open Government launched a pilot program this week pairing media representatives and attorneys to help high school and college students understand the importance of the First Amendment in their lives, said Mitchell Pearlman, secretary of the CFOG board of directors and chair of the new initiatives committee.

Presenters will focus on different topics with each age group. High schoolers may discuss what school authorities can do to limit rights of expression, while college students may discuss respecting free speech among differing viewpoints, Pearlman said.

From this section: Wallingford church tries outreach to lure churchgoers back

On Monday, CFOG debuted its program at Quinnipiac University with Mike Savino, the Record-Journals state Capitol reporter, and William Fish, a Hartford-based attorney with Hinckley Allen. Richard Hanley, Quinnipiac associate professor of journalism, moderated the event.

Savino serves as president of the Connecticut Society of Professional Journalists. He said in the current political climate of threats of press suppression by federal government officials, were on the front line of trying to stand up for the First Amendment.

Pearlman called Fish, who has represented the Hartford Courant in FOI cases, one of the most knowledgeable First Amendment lawyers in the United States.

Fish talked about situations when the government attempts to curtail free speech, starting with the Alien and Sedition Acts in 1798 and continuing through the Patriot Act after 9/11.

When things gets difficult, we have to be very careful and protective of the First Amendment, he said.

The program is being held in connection with National Sunshine Week, March 12-18. Freedom of Information laws are often referred to as sunshine laws since they shine a light on government information, records and people.

Record-Journal managing editor Eric Cotton and attorney Mary Schwind are scheduled to speak at Lyman Hall High School in Wallingford on Monday. Joy Haenlein, editor of The Advocate/Greenwich Time, and attorney Tom Scheffey are scheduled to talk with students from Maloney and Platt high schools at Platt in Meriden on Tuesday.

Also participating in the pilot program are East Lyme High School, the University of Connecticut at Storrs, Central Connecticut State University and Western Connecticut State University.

LTakores@record-journal.com 203-317-2212 Twitter: @LCTakores

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Program seeks to educate students about First Amendment rights - Meriden Record-Journal

The Daily Press was named a finalist Tuesday in the annual Scripps Howard Awards.

The entry, which detailed years of reporting, utilizing and defending access to public information, was honored in the category of Distinguished Service to First Amendment. The Charleston (W.Va.) Gazette-Mail won the category, and the Dallas Morning News was honored alongside the Daily Press as a finalist.

"The mission of a news organization is simple: We are the community's watchdog. We don't work for the government. We work for the people," said Marisa Porto, publisher and editor-in-chief of the Daily Press Media Group. "We keep an eye on what local government is doing and how it is spending taxpayer dollars. That is our responsibility, and we take it seriously at the Daily Press.

"I couldn't be more proud of this team and the work it does every day."

The Daily Press entry included stories in which the reporting hinged on documents obtained under the Freedom of Information Act. Those stories included an attempt to gain access to a compiled database of court records, and investigation into how money was used in an undercover police operation, and an examination of a private loan guarantee made by the local airport commission.

The 375-page entry encompassed more than four years of reporting and included dozens of stories and editorials in which access to public information was essential.

"Recognizing the best journalism in the country is a fundamental mission of Scripps Howard Foundation," said Liz Carter, president and CEO of the foundation, in a news release.

"We commend the work these journalists did in 2016 and the impact their words, videos and interactive elements will continue to have across our communities."

The Scripps Howard Awards have been handed out for 64 years and honor excellence in journalism. The awards ceremony will be held April 12 in Cincinnati.

Excerpt from:
Daily Press a finalist for national First Amendment honor - Daily Press

'The Bell Curve' Author Charles Murray (Flickr)

Allison Stanger, Professor of International Politics and Economics, was to moderate.However, the event did not proceed as planned; students at the talk shouted Murray down and made it impossible for him to speak.He and Stanger moved the discussion to a different location, where the interview was live-streamed.That, unfortunately, was not the end of it.When they left, Stanger and Murray were confronted with angry protesters who tried to block their way.A melee ensued, during which Stanger was injured.

Stanger posted a commentary about the incident on Facebook.We cannot improve on her words.

I apologize for the impersonal and lengthy nature of this communication, but I wanted to provide a general response to

Posted by Allison Stanger onSaturday, March 4, 2017

Stanger and Middlebury responded appropriately, repudiating the violent and disruptive protests and reaffirming their commitment to the free exchange of ideas. Their improvisation allowed the talk to proceed, albeit in a lesser forum and format.

This incident, and earlier ones at Berkeley, University of Washington, and other institutions, reveal a disturbing trend, and a lack of understanding of what forms of protest the First Amendment does, and does not, protect.

Briefly, the Constitution protects the right to peaceful protests.Institutions and government officials are permitted to adopt neutral rules to regulate where and when such protests take place, as long as they are applied consistently and do not unnecessarily interfere with the ability of protesters to convey their message to their intended audience.

However, the First Amendment DOES NOT allow protesters to prevent someone else from speaking, and it does not sanction violence or intimidation. Middlebury, as a private institution, is not constrained by the First Amendment and has considerable leeway in setting and enforcing its own rules.Even at a public university, however, administrators would be justified in removing and disciplining students who disrupt a public event.Any institution, whether public or private, is entitled to rely on law enforcement to prevent and respond to violence or threats of violence, and protesters who engage in such behavior do so at their peril.

Perhaps more important, protesters need to understand a more basic principle: the right to speech exists for all, or for none. Anyone who wishes to exercise that right is obliged to acknowledge that others enjoy equivalent rights.

Once you violate that principle, speech rights for all are at risk.

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Violent Protestors Misunderstand the First Amendment - Blogging Censorship (blog)