The Volokh Conspiracy

So held a Florida trial court judge, and he wasn’t the first — I think I’ve seen this in a few cases, but the one for which I have a citation is State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003)

Whether this is the right answer is not clear. It’s a special case of warnings to hide one’s illegal conduct because the police are coming — though here done by a stranger rather than by a lookout who’s in league with the criminals — and that in turn is a special case of what I call Crime-Facilitating Speech (see 57 Stan. L. Rev. 1095 (2005)), which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes. The Supreme Court has never squarely confronted this question.

When I’ve blogged about this in the past, some people have argued that flashing headlights should be protected because it’s encouraging legal behavior (slowing down) rather than illegal behavior, but I don’t think that can dispose of the issue: Many lookouts do the same, e.g., when a lookout warns would-be robbers to abandon their plans because a police car is driving by.

For an interesting similar question though one that doesn’t involve encouraging people to temporarily act legally), this story:

An advocate for immigrant and civil rights has started using text messages to warn residents about crime sweeps by a high-profile Arizona sheriff.

Lydia Guzman, director of the nonprofit immigrant advocacy group Respect/Respeto, is the trunk of a sophisticated texting tree designed to alert thousands of people within minutes to the details of the sweeps, which critics contend are an excuse to round up illegal immigrants.

Guzman said the messages are part of an effort to protect Latinos and others from becoming victims of racial profiling by sheriff’s deputies….

What’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming? (Assume that the lookout isn’t getting a share of the loot, but is just helping his friends avoid getting locked up.) Should it matter, as one expert who’s mentioned in the article suggests, whether Ms. Guzman’s real goal is preventing lawful arrest of illegal immigrants (as opposed to preventing racial profiling, assuming such profiling is unlawful)? I think there may indeed be a difference between such revelation of facts to the public and individualized communications to a small group of criminals, and I don’t think it should turn on jury inferences about the speaker’s true purpose; my article discusses the question at length. But in any event it’s helpful to think about what the difference might be.

I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.

Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect … on the … privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.

I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?

Here’s the relevant excerpt:

(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another….

(c) “Targeted residential picketing” includes the following acts when committed on more than one occasion:
(1) marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security, or privacy of an occupant of the building ….

Subd. 4. Temporary restraining order. (a) The court may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if the petitioner files a petition in compliance with subdivision 3 and if the court finds reasonable grounds to believe that the respondent has engaged in harassment. When a petition alleges harassment as defined by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate and present danger of harassment before the court may issue a temporary restraining order under this section….

(b) Notice need not be given to the respondent before the court issues a temporary restraining order under this subdivision….

(c) The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subdivision 5. The court shall hold the hearing on the issuance of a restraining order if the petitioner requests a hearing. The hearing may be continued by the court upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence or if service is made by published notice under subdivision 3 and the petitioner files the affidavit required under that subdivision.

(d) If the temporary restraining order has been issued and the respondent requests a hearing, the hearing shall be scheduled by the court upon receipt of the respondent’s request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of the hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date….

Subd. 5. Restraining order. (a) The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3 [and the order has been served on the respondent];
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the right to request a hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.
A restraining order may be issued only against the respondent named in the petition; except that if the respondent is an organization, the order may be issued against and apply to all of the members of the organization. If the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years. In all other cases, relief granted by the restraining order must be for a fixed period of not more than two years. When a referee presides at the hearing on the petition, the restraining order becomes effective upon the referee’s signature….

(c) If the court orders relief for a period of up to 50 years under paragraph (a), the respondent named in the restraining order may request to have the restraining order vacated or modified if the order has been in effect for at least five years and the respondent has not violated the order….At the hearing, the respondent named in the restraining order has the burden of proving by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting the restraining order no longer apply and are unlikely to occur. If the court finds that the respondent named in the restraining order has met the burden of proof, the court may vacate or modify the order. If the court finds that the respondent named in the restraining order has not met the burden of proof, the court shall deny the request and no request may be made to vacate or modify the restraining order until five years have elapsed from the date of denial. An order vacated or modified under this paragraph must be personally served on the petitioner named in the restraining order.

Subd. 6…. (b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.
(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency;
(2) because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(3) by falsely impersonating another;
(4) while possessing a dangerous weapon;
(5) with an intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(6) against a victim under the age of 18, if the respondent is more than 36 months older than the victim….

From State v. Baker (Iowa 2004):

The parties stipulated to the facts underlying this appeal. Baker was charged with violating section 720.4 based on a telephone conversation Baker had with Debra Krause, who had recently served as a juror in a criminal proceeding against one Greg Schoo, a friend of Baker. On May 8, 2003, the jury convicted Schoo of first-degree burglary, which carries a mandatory twenty-five-year prison sentence.

The day after the verdict was rendered Krause received a phone call that began with the caller’s question, “Is this Deb?” Because Krause and Baker had previously worked together, Krause recognized Baker’s voice. In addition, Krause’s caller ID confirmed the call was made from Baker’s telephone. When Krause responded that yes, she was Deb, the caller stated, “This is Rose.” The caller then asked Krause “if [she] knew that [she] gave him 25 years.” Krause understood Baker was referring to Schoo. Krause told Baker she did not know what sentence Schoo had received. Baker then stated: “Well, I just thought you should know you gave him 25 years,” and hung up the phone.

Krause notified law enforcement of Baker’s call. Although Krause did not feel threatened by Baker, she was bothered and upset by the call and Baker’s tone of voice. According to Krause, she “was in disbelief that [Baker] had called [her] to say that.” Krause said she “did not beg and plead to be one of the jurors,” and would rather not have been picked, but it was “something [she] had to do — whether [she] wanted to or not!”

Baker was charged with jury tampering, under a statute that provides, “A person who … in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor.” “Harassment” is in turn defined as, “with intent to intimidate, annoy, or alarm another person, … [c]ommunicat[ing] with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.” The court of appeals concluded that the prosecution could go forward:

Here there was clearly a jury question under the stipulated facts whether Baker contacted Krause to gather factual information about Krause’s knowledge and views of the sentencing system, or whether the contact was intended to intimidate or alarm Krause in retaliation for her role in convicting Schoo.

Rosemary Baker was ultimately convicted on remand.

The court of appeals decision, it seems to me, is wrong and quite dangerous. The court seems to be suggesting that the impermissible purpose might be a purpose to make Krause feel frightened (“intimidate[d] or alarm[ed]“) — but if the stipulated facts are sufficient to permit a prosecution based on this theory, then no-one is safe expressing to a juror that they thought the juror helped work an injustice, or for that matter expressing to other people that they thought those people did something bad. There is always the danger that a hostile prosecutor, judge, and jury will infer a bad purpose on your part, even when there were no threatening words, the listener makes clear that she didn’t feel threatened, and the listener knows you and has no reason from past contact to fear you. Whatever the scope of the “true threats” exception to the First Amendment, I doubt it can be broad enough to cover speech such as this.

Of course, it’s plausible, given the stipulated facts, that Baker might have wanted Krause to feel sorry or unhappy about what she helped do. But I doubt such a desire can strip such speech of constitutional protection, and in any event it seems to me a “legitimate purpose” for purposes of the statute (or else any call to someone to tell them that they did something bad, and to make them feel bad about it, would potentially be criminal “harassment”). At the very least, the phrase “without legitimate purpose” doesn’t sufficiently inform people that such a purpose is impermissible (and is, I think, unconstitutionally vague).

More broadly, I’m quite troubled by such laws that prohibit a considerable amount of conduct, much of which would be constitutionally protected, and then try to avoid this overbreadth by limiting the prohibition to conduct that lacks a “legitimate purpose.” Who can know what purposes the legal system will eventually find “legitimate”? If you want to punish threats, punish threats. If you want to punish behavior that has the purpose of assisting some crime, punish that. But don’t just leave to future prosecutors, judges, and juries the decision about what’s “legitimate” and what isn’t — and thus leave citizens uncertain about what’s allowed and what’s not.

Apropos yesterday’s Confederate flag / First Amendment post, here’s a story from March: A Delaware Department of Transportation employee had, for 17 years, a decorative plate that said “REDNECK” on a Confederate flag background. A coworker complained, charging “harassment,” and the department threatened him with discipline “if he continued to drive his vehicle with the plate on state property.” But after the ACLU of Delaware intervened, the Department apparently decided not to reprimand him, even if he continued displaying the plate.

Note that the government acting as employer has much more power over on-the-job speech of its employees than it does over the speech of private citizens and private employees (more on that here). In particular, it’s possible that the Department could restrict the display of items that cause substantial tension among coworkers, though it sounds like in this instance the Department ultimately chose not to do this (whether based on a judgment that the plate wasn’t disruptive enough, a desire to avoid litigation, or something else).

From Dawson v. Donahoe (EEOC Feb. 8, 2012) (just uploaded onto Westlaw several days ago):

[A] claim of harassment is … actionable if the harassment to which Complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of Complainant’s employment….

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car.

Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation…. [U]nder certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts….

This case involved a government employer, but the EEOC applies precisely the same standards — speech is actionable if it is “severe or pervasive” enough to create a hostile, abusive, or offensive work environment based on race, religion, sex, and so on for a plaintiff and for a reasonable person — to government employment as courts do to private employment. So under the EEOC’s reasoning, an employer must order its employees to stop wearing Confederate flag T-shirts whenever someone complains, or risk massive liability in court.

As I’ve argued before, hostile work environment harassment law suppresses a broad range of speech, including speech related to political, religious, social, or artistic matters. And when applied to what I call “one-to-many” speech (as opposed to speech that is said to one particular person), I think the law is unconstitutional: It involves the government, acting as sovereign, imposing a content-based and viewpoint-based restriction on people’s speech.

To be sure, a private employer has broad authority to restrict speech on its property (just as a private blog operator, service provider, commercial landlord, university, church, or homeowner has such authority). And a government employer has fairly broad such authority as well, for instance if it concludes that such speech sufficiently undermines the employer’s mission. But harassment law involves the government using legal coercion to pressure employers to restrict people’s speech; that’s where the strong First Amendment constraints on government action should come in. Much as I dislike displays of the Confederate flag, the First Amendment can’t allow the government to suppress them through the threat of legal liability.

In any event, this case, I think, helps illustrate my point. If the EEOC is right, then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.

And of course the same could in principle apply not just to speech that is perceived as racist, but also speech that is perceived as anti-Islam, anti-Christianity, anti-Hispanic-immigrant, anti-women, anti-men, and so on. (See, e.g., the Tufts anti-Islam ad incident, Doe v. City of New York & Bruce Tefft, and Rodriguez v. Maricopa County Community College Dist..) “Hostile environment harassment law” is a serious and often unconstitutional threat to free speech, whether in workplaces — where most people spend a third of their waking hours — or universities or places of public accommodation; this incident is just the latest example.

UPDATE: Hans Bader (Open Market) has more.

AB 2100, which passed an Assembly subcommittee last month by a 5-3 party-line vote, provides,

To ensure that individuals and entities licensed under this act observe common standards of decency, the commission shall, in consultation with the Association of Boxing Commissioners, establish a professional code of ethical conduct for mixed martial arts promoters and fighters. Notwithstanding any other provision of this code, upon receiving a complaint, the commission shall enforce the code of ethical conduct and may suspend, revoke, or refuse to issue or renew the license of any mixed martial arts promoter or fighter that it finds has violated this code of conduct. Violations of this code shall include, but not be limited to, the following:

(a) Engaging in actions or activities such as acts resulting in felony convictions or convictions for crimes involving moral turpitude, sexual assault, ethnic or religious slurs, hate speech, or obscene language, failing to respond to a subpoena, or incurring sanctions imposed by a judge or court of law.

I don’t think mixed martial arts fighters should be denied the right to compete — and denied it by law, not just by a private organization’s decision — simply because they have a criminal record. That’s especially so when the criminal record can involve relatively less significant offenses, such as contempt of court, or “crimes involving” “obscene language.”

But it seems to me especially wrong, and unconstitutional, to strip people of their livelihood based on viewpoint-based criteria such as whether their crimes involved “ethnic or religious slurs” or “hate speech.” To be sure, such conduct has to be independently a crime (e.g., disturbing the peace through trying to provoke a fight, or making loud noise, or what have you); ethnic slurs, religious slurs, and “hate speech” — whatever that vague term might mean — aren’t themselves crimes. But as R.A.V. v. City of St. Paul (1992) held, even if the government may outlaw certain kinds of speech (such as “fighting words”), it may not outlaw in ways that are viewpoint-based (or otherwise impermissibly content-based). Just as R.A.V. barred the imposition of greater penalties on bigoted fighting words than other fighting words, so it bars the loss of a license for crimes that involve “ethnic or religious slurs” or “hate speech” but not for comparable crimes that don’t involve such speech.

I recognize that hate crimes laws that increase the penalty for crimes based on the defendant’s discriminatory selection of a victim are constitutional, see the unanimous Wisconsin v. Mitchell (1993), and I think that decision is correct: The law has long allowed punishments to turn partly on the defendant’s motivation, and the selection of a victim based on particular criteria may indeed be a permissible basis for such distinctions (just as employment law may permissibly distinguish firing someone based on that person’s race or sex from firing the person based on something else). But R.A.V. makes clear that the law may not make the viewpoint of a person’s speech — as opposed to his victim selection decision — a basis for enhanced punishment.

And the same, I think, would apply to disqualification from the occupation of mixed martial arts fighting. Assemblyman Luis Alejo, the sponsor of the bill, and Assembly members Nora Campos, Betsy Butler, Mike Gatto, Tony Mendoza, and Bill Monning ought to know better, or at least seek out better counsel.

I blogged last month about the school district’s refusal to allow the shirt; “the message communicated by the student’s T-shirt,” the district argued, “was sexual in nature and therefore indecent and inappropriate in a school setting.” The student sued on First Amendment grounds, and Lambda Legal reports that the district has settled; here are the key terms:

2. The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….

4. Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

Thanks to my coblogger Jonathan Adler for the pointer.

I just ran across an interesting case, Memphis Pub. Co. v. Nichols (Tenn. 1978). The Memphis Press-Scimitar published the following article that mentioned Mrs. Ruth Ann Nichols:

WOMAN HURT BY GUNSHOT

Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

No charges had been placed.

Please think briefly about the story, and then click on the link before to learn what the court decided.

Continue reading ‘An Interesting Defamation Case’ »

The U.S. Justice Department opined May 14 that the First Amendment does secure such a right, reaffirming a January letter that I had missed. “Recording governmental officers engaged in public duties,” the letter reasons, “is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”

The letter, addressed to the Baltimore Police Department based on the Department’s past interference with such recording, is consistent with the Seventh Circuit’s May 8 decision in ACLU v. Alvarez (which it doesn’t cite) and the First Circuit’s decision in Glik v. Cunliffe (which it does cite, together with some other cases).

Yesterday’s Wall Street Journal reports:

Iranian rapper Shahin Najafi … is now being dubbed the Salman Rushdie of music after two influential clerics in Iran issued fatwas — religious edicts — justifying his murder on grounds of blasphemy [based on a song in which Najafi calls on a Shiite saint, Ali an-Naqi, to save Iran] ….

Mr. Najafi … lives [in Germany] and, since last week, has been in hiding under the protection of German police….

The senior clerics empowered to issue fatwas act independently of the government — but anyone who carries out a death fatwa is granted impunity under Iranian law….

An Iranian website, Shia-Online, [has] put a $100,000 bounty on Mr. Najafi’s head ….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The L.A. CBS station reports:

Pacquiao was scheduled for an interview on Wednesday afternoon with Mario Lopez of TV’s “Extra” at The Grove in Los Angeles, but … Grove VP of corporate affairs Bill Reich … [issued a statement that] read, “Based on news reports of statements made by Mr. Pacquiao we have made it be known that he is not welcome at The Grove and will not be interviewed here now or in the future. The Grove is a gathering place for all Angelenos and not a place for intolerance[.]“

According to the CBS piece, Pacquaio — who is also a congressman in the Philippines — “told the National Conservative Examiner that he believes the Bible is very clear on the issue of homosexuality and that the President’s comments are in direct contradiction to Scripture,” saying “God’s words first”; “Obey God’s law first before considering the laws of man.” Then the writer of the article quoted the Leviticus passage stating, “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.” Pacquaio now denies having quoted Leviticus on this or otherwise “stat[ing] that anyone in the gay community ‘deserved death,’” but it’s possible that the Grove VP believed that Pacquaio had indeed made such a statement.

In any event, it appears that the Grove, as a pretty large open-air shopping mall, is barred by the California Constitution, as interpreted by the California Supreme Court in Robins v. PruneYard Shopping Center (1979) and Fashion Valley Mall v. NLRB (2007), from excluding Pacquaio. The California courts have held that speech is just as protected against content-based restrictions by these large shopping mall owners as it is against content-based restrictions by the government in its role as owner of sidewalks and parks; and this is true even when the content of the speech may undermine the shopping center’s (and its tenants’) business interests (e.g., when it calls for a boycott of some of the tenants). I think that likewise the shopping center can’t restrict speech based on its moral disapproval of the speaker’s political views, or its perception that other patrons might find those views offensive.

To be sure, here the restriction is imposed based on the content and viewpoint of the speaker’s outside speech, and not necessarily the content of the likely speech in the mall. But I think that, one way or the other, the Grove’s restriction would be treated as content-based and violative of the California Constitution (though it seems unlikely that Pacquaio or his prospective interviewer will sue the Grove over this).

I say this just as a description of California law; I don’t think that the California Supreme Court’s decision in Robins was a sound interpretation of the California Constitution, and I’m pleased that only about half a dozen state courts, when I last checked, have taken a similar view of their state constitutions. Thanks to Daniel Watts for the pointer.

The Wisconsin State Journal reports:

A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old.

Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church’s literal interpretation of the Bible.

The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom.

Circuit Judge Maryann Sumi found that Caminiti had “a sincerely held religious belief” as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state’s child abuse statute “places a burden on his sincerely held religious belief.”

“Scripture doesn’t specify how and when the rod should be used,” Sumi said, adding that Caminiti also was willing to modify the church’s practices to comply with the law….

If Caminiti had simply preached the propriety of such behavior in the abstract, I think such a conviction would likely be unconstitutional under the Free Speech Clause without regard to any special religious freedom claim, given Brandenburg v. Ohio (1969), even if the hitting of the children would indeed be a crime. (It probably would be; note that, according to the sheriff’s department, “the dowels were described as being 12-18 inches long with a diameter about the size of a quarter.”)

Teaching that it’s proper or even obligatory to commit a crime is generally constitutionally protected unless it’s intended to and likely to yield imminent crime, which is to say crime some time in the immediate future, likely within a few hours or at most days, and not “at some indefinite future time.” That’s why it’s not a crime to teach that it’s proper or even religiously obligatory to use marijuana, or to refuse to register for the draft, or to engage in jihad. And it sounds from news accounts that the minister’s teachings were not intended to yield such imminent conduct, but instead were meant as guidance for “some indefinite future time.”

But if Caminiti had specifically counseled particular parents about what to do with their particular children in particular contexts — “minister, my child did this-as-such; should I beat him tonight for it?” — this might qualify as either incitement of imminent criminal conduct, or as constitutionally unprotected solicitation of crime (see United States v. Williams (2008)). The line between solicitation, which is unprotected even when it calls for action in the indefinite future (e.g., “please send me some child pornography, whenever you happen to have some”) and incitement, which is protected unless it calls for imminent action, is unclear. Urging people that some general course of action is morally obligatory, without reference to a particular proposed action dealing with a particular person or a particular item, would be a classic example of material covered under Brandenburg (general advocacy) rather than Williams (solicitation). But the more specific the advocacy, the more likely it is to be seen as unprotected solicitation (or as unprotected incitement, if it’s advocacy of what the parent is to do right away).

Note that Wisconsin courts have interpreted the Wisconsin Constitution to require, in some situations, religious exemptions from generally applicable laws, under the Sherbert/Yoder regime. But it’s not clear to me that, even so, the best argument for the minister is a religious freedom argument. The protection offered by free speech law in such cases should, I think, be rather greater than the protect offered by religious exemptions law. And if the pastor’s speech is unprotected by the Free Speech Clause, I doubt that courts would find it protected even under the state constitution’s religious freedom guarantee, even using the Sherbert/Yoder test.

If anyone can point me to any reasoned opinions on the judge’s part in this case — or to more facts on the subject — I’d love to see them. All I could find myself online is the docket sheet, which doesn’t have the documents. Note that “Caminiti was not charged with having committed any abuse himself.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Guardian (UK) reports (see also MSNBC Cartoon Blog and other sources):

Mahmoud Shokraye was put on trial after an Iranian MP, Ahmad Lotfi Ashtiani, took offence to a cartoon he drew of the parliamentarian in Nameye Amir, a city newspaper in Arak, the capital of Iran’s central province of Markazi….

In the cartoon, Ashtiani is depicted in a football stadium, dressed as a footballer, with a congratulatory letter in one hand and his foot resting on the ball. The MP’s forehead has a dark mark, said to be the sign of a pious Shia Muslim, caused (supposedly) by frequent prostration during prayer. The cartoon contains little exaggeration and Ashtiani’s forehead has a prayer mark in reality.

Shokraye drew Ashtiani following widespread criticism in Iranian society towards a number of politicians who have been accused of interfering in the country’s sports….

Speaking to an Iranian journalist, Esmail Kowsari, a member of the parliamentary committee on national security, defended the sentence: “[A cartoonist] should be persecuted if the cartoon is not ordinary and ridicules someone … Any crime has its own punishment, including lashing, imprisonment or being fined.”

Note that “persecuted” might (or might not) be a mistranslation. Thanks to Opher Banarie for the pointer.

The trouble is that it appears that he does indeed have a criminal record. The complaint, in Richey v. Walker (Ga. Super. Ct. May 3, 2012) is based on these statements on the Georgia Politics Unfiltered blog:

1. “Rashad Richey, the person in charge of making political decisions for Georgia Democratic Party, has a history of making poor personal decisions.”
2. “The money raised from this event will help keep Rashad Richey the Recidivist on the Democratic payroll for a long time.”
3. “We now know what Ali Rashad Richie used all that cash for … Bail money.”
4. “So, a criminal is in charge of directing Democratic politics across Georgia.”
5. “Ali Rashad Richie, political director for Georgia’s Democratic Party is a jail bird. Rashad Richie is a recidivist.”

The complaint seems to be arguing that this is false because “recidivist” means someone who has committed more than one felony, and “Plaintiff is not a convicted Felon.”

But WSB-TV reports that, “Richey had a series of misdemeanor convictions for criminal trespass and simple battery. Channel 2 Action News has now learned Richey also had a felony conviction for aggravated assault in 1998 but was sentenced as a first-time offender. When he completed his sentence, the felony was wiped from his record.” GPB News reports that Richey’s “attorneys confirm that Richey has been arrested for a variety of misdemeanor charges, including driving with a revoked license, battery, obstructing an officer and family violence.” (Note that this is confirmation of the arrest record, and not of a conviction record, but the WSB-TV story states there was a conviction record, and nothing in the GPB News story denies that.) A quick criminal history search of my own revealed Richey’s aggravated assault conviction, and another site posts a 2007 arrest report based on a separate incident. Nor have I seen any indication that WSB-TV is mistaken about the series of misdemeanor convictions.

So Richey’s only argument seems to be that calling someone with several misdemeanor conviction and one felony conviction that was expunged (just because it was a first offense, and not on the grounds that Richey had been exonerated) a “recidivist” is recklessly or knowingly false because “recidivist” is reserved for people with multiple felony convictions. But I don’t think that the term is limited to felonies in ordinary language, and I don’t think reasonable readers of the blog would have so understood the word; rather, a typical lay reader would likely see it as simply accusation of multiple criminal offenses — an accusation that appears to be true.

I should note that if the statement “[w]e now know what Ali Rashad Richie used all that cash for … Bail money” would have reasonably been seen as a charge of embezzlement of funds, that might be libelous. But I didn’t see any reference to that in the Complaint, which suggests that in context it was likely seen just as a dig at his criminal record, rather than a serious accusation of misappropriation of funds.

Oh, and according to WSB-TV, “Richey’s attorneys believe the series of blogs are borderline harassment and constitute a form of cyberbullying.”

From ACLU v. Alvarez (7th Cir. May 8, 2012) (Judge Sykes joined by Judge Hamilton, with Judge Posner dissenting):

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the re cording is open or surreptitious.

Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.

I’m just beginning to read the opinions, but I wanted to flag the key holding. [UPDATE: Sorry, meant to also say that this decision reaches pretty much the same result as Glik v. Cunliffe (1st Cir. 2011), which I blogged about last year.]

UPDATE: A few follow-up thoughts:

1. The opinion specifically sets aside the question whether state law could (1) ban surreptitious interception even of public communications, and (2) ban surreptitious interception of communications that the parties would reasonably expect to remain private. (“[T]his case has nothing to do with private conversations or surreptitious interceptions.” “We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). For an example of a state high court decision that affirmed a citizen’s conviction for surreptitiously recording his encounter with the police, see Commonwealth v. Hyde (Mass. 2001), though the court did not discuss the First Amendment.

But I think the Seventh Circuit’s reasoning should apply to a person’s surreptitious recording of his interactions with the police in the course of their jobs, and not just to open recordings. Among other things, even content-neutral restrictions are immune from strict scrutiny only if they are narrowly tailored to an important government interest and leave open adequate alternative channels for speech (or, here, for gathering the information needed to speak). The Seventh Circuit didn’t decide whether this adequate alternative channels requirement was satisfied here (because it found the law to be overinclusive with respect to any privacy interests that might justify a narrower law), and wasn’t certain that the factor applies to information gathering restrictions, though I think it should so apply given that information gathering restrictions may burden the ability to speak much like direct speech restrictions would. Yet it did suggest that bans on recording information don’t leave open adequate alternative channels:

We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.

And this is also true of surreptitious recording, since often surreptitious recording will yield more accurate information about how police officers actually behave in ordinary interactions with citizens (as opposed to how they behave when they know that their statements could be heard that day on the evening news).

2. Here’s the heart of the majority’s argument for why the First Amendment at least presumptively protects audiorecording, though subject to possible content-neutral restrictions that are narrowly tailored to an important government interest (perhaps only if they leave open adequate alternative channels):

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.

Continue reading ‘Seventh Circuit: Ban on Audio Recording of Police Officers Likely Unconstitutional’ »

Minnesota law defines “harassment” to include,

repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?

Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident[] of intrusive or wanted … words … that ha[s] a substantial adverse effect on the [ex's] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.

Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute).

Check out this 2009 D.C. law that purports to ban “stalking” (D.C. Code §§ 22-3132, -3133), and that provides, among other things:

“Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling….

“To engage in a course of conduct” means directly or indirectly, or through one or more third persons, in person or by any means, on 2 or more occasions, to:
(A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual;
(B) Interfere with, damage, take, or unlawfully enter an individual’s real or personal property or threaten or attempt to do so; or
(C) Use another individual’s personal identifying information [defined to include a person's name]….

(a) It is [a crime] for a person to purposefully engage in a course of conduct directed at a specific individual [to intentionally, knowingly, or negligently] cause that individual to … [s]uffer emotional distress….

(b) This section does not apply to constitutionally protected activity.

So if you twice say something about someone, where a reasonable person should have known that this would cause the subject “significant mental suffering or distress,” you’re guilty of a misdemeanor — or a felony if the subject is under 18, and you are four or more years older than the subject — unless the court finds your speech to be “constitutionally protected activity.”

But what is constitutionally protected activity? For instance, is telling some friends about an acquaintance’s medical history or sex life constitutionally protected? The Court has had no occasion to decide this, partly because such private revelation is usually not even tortious under state law (in most states, the “disclosure of private facts” tort only covers speech to the public at large, or under circumstances where it’s likely to reach the public) and thus the matter rarely comes to court. How about marketing T-shirts or video games or comic books that contain a celebrity’s name or likeness? Lower courts are split on that. What about saying something that violates a promise not to say it? That’s constitutionally unprotected against a breach of contract lawsuit, but the Court has never decided it whether it can generally be criminalized.

Or how about residential picketing? Such speech is unprotected against a sufficiently narrow content-neutral residential picketing ban, but protected against content-based bans, and protected against even content-neutral bans that are too broad (e.g., apply to all picketing within 300 feet of a residence, rather than just picketing right in front of a residence). More broadly, the same speech is often protected against some sorts of restrictions but unprotected against others that are sufficiently narrowly tailored to some government interest.

To be sure, some courts have upheld laws that have such supposed “savings clauses,” but others have struck them down. And it seems that the latter view is the correct one; in the words of Long v. State (Tex. Ct. Crim. App. 1996) (paragraph break added):

While the provision would permit the defendant to introduce evidence before the jury regarding the constitutional nature of his conduct, it would relegate the First Amendment issue to a “case-by-case adjudication,” creating another vagueness problem. In essence, (a)(7)(A) [the Texas provision involved in Long -EV], as modified by the affirmative defense, would read something like “it is a crime to intentionally annoy someone unless by that conduct the actor engages in activity protected by the First Amendment.” Application of the affirmative defense to subsection (a)(7)(A) on a case-by-case basis would require people of ordinary intelligence — and law enforcement officials — to be First Amendment scholars. Arguably, people are always “on notice” that constitutionally protected conduct is exempt from prosecution, and law enforcement officials could always look to the First Amendment to determine when a law should not be enforced because it would interfere with constitutionally protected activity. But, the mere existence of the First Amendment has never been held automatically to cure vagueness problems implicating First Amendment freedoms.

Because First Amendment doctrines are often intricate and/or amorphous, people should not be charged with notice of First Amendment jurisprudence, and a First Amendment defense cannot by itself provide adequate guidelines for law enforcement. [Footnote: Charging ordinary citizens and law enforcement officials with knowledge of constitutional law seems especially inappropriate in an area of law, such as stalking, that is relatively new.] Moreover, an attempt to charge people with notice of First Amendment caselaw would undoubtedly serve to chill free expression.

UPDATE: I should note that I think the Texas court’s argument is correct whether or not the “constitutionally protected activity” proviso creates an affirmative defense as to which the defendant must introduce evidence, or creates an element of the crime (the lack of constitutional protection for the activity) that the prosecution must prove. Even if the prosecution must prove that the activity is constitutionally unprotected, the provision remains so unclear that it’s unconstitutional, either under the void-for-vagueness doctrine as such or (as in Reno v. ACLU) because the vagueness of the law leads it to deter even constitutionally protected speech.

Karen Lugo (National Review Online) has the most thorough English-language account that I’ve seen:

While deciding to acquit Lars Hedegaard [on April 20], president of the Danish Free Press Society, of intending to speak hatefully for public dissemination, the [Danish Supreme Court] emphatically affirmed a statute according to which anyone who “publicly or with the intent of public dissemination issues a pronouncement or other communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation is liable to a fine or incarceration for up to two years.”

The prosecution of Hedegaard resulted from remarks that he made during an interview and contends were electronically distributed without his permission. Although Hedegaard explained that he did not intend to accuse the majority of Muslim men of abusive behavior, Denmark’s Office of Public Prosecutions deemed his reflections on the incidence of family rape and the commonness of misogyny in Muslim-dominated areas to be criminally insulting.

The trial-court judge did not find that the prosecution met its burden to demonstrate that Hedegaard meant his comments for public distribution. But the Office of Public Prosecutions appealed to the Copenhagen Eastern Superior Court, in which Hedegaard was convicted. This reversal was based upon the elastic legal standard that Hedegaard “ought to have known” of the potential for dissemination of his remarks….

[T]he seven-member supreme court declined to apply the lower court’s “ought to know” standard, but affirmed the statute under which Hedegaard had been prosecuted, with its many ambiguities and invitations to abuse. As Hedegaard has said, the result still logically means that one can be criminally liable for speech deemed racist or offensive if one does not “demand written guarantees that nothing be passed on without express approval.” … [Among other things,] truth is not a defense. In fact, sociological data that would substantiate his observations were not admissible in court. As Hedegaard complained, “the defendant is not allowed to present evidence or call witnesses who might confirm his contention that the Islamic treatment of women is incompatible with the norms of a civilised society.”

[Also], the highly general categories of legal offense do not merely seek to protect races of people — hard enough to define — but now cover beliefs, dogmas, and doctrines. Destructive ideologies that cry out for inspection are thus invited to propagate behind a veil….

I’d be glad to quote more from a straight news account, rather than an opinion piece, but I couldn’t find any. The opinion is here in Danish; if any Danish speakers can translate the key material (from Google Translate, it appears that the Court’s legal analysis is all on just one page, page 3), I’d love to see it. Thanks to Walter Olson (Secular Right) for the pointer.

The Mumbai Mirror reports:

CR 61/2012, Juhu Police Station, has been filed against miracle-buster Sanal Edamaruku, who is also founder-president of the Rationalist International, which has scientists such as Richard Dawkins in it.

The FIR [apparently a First Information Report -EV] has been filed under IPC Sec 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs….

The whole story began on March 5, when during a TV programme in Delhi, Sanal dismissed reports that the “dripping cross” outside Vile Parle’s Velankanni church was a miracle….

Later on March 10, Sanal attributed the water dripping from the Jesus statue to capillary action of underground water near the cross. His photographs, displayed on TV-9, showed seepage on the wall behind the cross and on the ground near its base. “I removed one of the stones covering a canal for dirty water nearby, and found that water had been blocked there. Once water is blocked, it will find an outlet, if not downwards, then upwards. Every student knows that trees get water through capillary action.”

Sanal said that when he reached the spot, a priest was leading a prayer on the road near the cross; water from the cross had been collected in a bucket and was being distributed to those gathered there. He was given a photograph of the statue dripping water with the word ‘miracle’ written on it….

During the subsequent TV discussions in Delhi and Mumbai, Sanal accused the Catholic Church of “miracle mongering.” Interestingly, in Mumbai, Archbishop Agnelo Gracias, who joined the discussion, categorically stated that the Church had not described the event as a miracle and would do so only after conducting investigations. The Archbishop also claimed that the Church was not anti-science and, in fact, it had established the Pontifical Academy of Sciences, of which Galileo had been a member.

At that point, Sanal pointed out that the Church had imprisoned Galileo, and burnt scientist Giordano Bruno at the stake, and Pope John Paul II had even apologised for it. He also asked the Archbishop what he had to say about the Vatican indulging in exorcism, to which the Archbishop replied that though he had not come across any case of “possession,” he could not rule it out.

All through the discussion, the other panelists kept warning Sanal that they would file FIRs against him if he didn’t apologise for his allegations against the Church.

The discussion ended with Sanal declaring that the Church’s intolerance had resulted in the Dark Ages in Europe. “Don’t try to bring the Dark Ages to India,” he said….

The Times of India reports that the complaints were filed by “[t]he Organisation of Concerned Catholics (OCC) and the Catholic Secular Forum (CSF)…. OCC members said they were not upset with Sanal for saying the phenomenon was not a miracle. They were hurt by statements he allegedly made against the Pope and Catholic clergy.”

Prof. Stephen Law has more; see also this opinion piece in The Hindu. Thanks to Walter Olson (Secular Right) for the pointer.

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of

worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.

My one disagreement with the Eighth Circuit’s decision in Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) has to do with the Circuit’s description of Board of Ed. v. Pico:

TCA relies on [Pico], in which secondary school students challenged a school board’s removal of certain books from school libraries. In Pico, the Supreme Court, citing the “right to receive ideas,” id. at 867, ruled that the First Amendment was violated if the school board members “intended by their removal decision to deny [students] access to ideas with which [the school board] disagreed, and if this intent was the decisive factor in [the] decision,” id. at 871.

This, I think, misdescribes Pico, in which a majority of the Court actually didn’t rule on the subject.

1. All nine Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books’ target age group.
2. Four Justices (Brennan, Marshall, Stevens, and Blackmun) took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals.
3. But the same number of Justices — four (Burger, Powell, Rehnquist, and O’Connor) — took the view that a government’s removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.
4. That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group. Rather, he voted to send the case down to the lower courts for further factfinding, without deciding whether a finding of viewpoint discrimination by the school board would indeed qualify as a First Amendment violation.

Here is Justice White’s reasoning:

The District Court found that the books were removed from the school library because the school board believed them “to be, in essence, vulgar.” Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board’s removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals’ judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

“We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

“Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions.”

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: “In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred.”

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

So Pico doesn’t stand for anything on the First Amendment question: The Justices split 4-4 on that question, and Justice Brennan announced the decision of the Court only because his procedural bottom line (send the case down to the lower court for application of his First Amendment test) was the same as Justice White’s (send the case down to the lower court for further factfinding, and wait to decide the First Amendment issue later). And this agreement on the procedural bottom line doesn’t give Justice Brennan’s four-Justice opinion any more precedential weight than the weight of Chief Justice Burger’s four-Justice opinion.

Note also that the Court’s fractured decision in United States v. American Library Ass’n — where there was also no majority opinion — doesn’t resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a “designated public forum” that’s generally open for a nearly limitless variety of speech, then the library wouldn’t be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There’s no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

I blogged about Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) when the district court decision came down, and yesterday the Eighth Circuit agreed with the district court’s bottom line (though disagreed with the district court’s decision about standing). I think the District Court and the Eighth Circuit both got it quite right — the defendant university’s labeling the Turkish Coalition’s site “unreliable” and advising students against relying on the site in their research papers doesn’t violate the Coalition’s First Amendment rights, and is also not actionable libel:

TCA alleges that the defendants defamed it by stating that TCA’s website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” …

With regard to the first challenged statement, TCA argues that the Center’s accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center’s statement under this interpretation is true and, thus, still not actionable….

The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts.

The Guardian (UK) reports:

When Alex Aan picked up a copy of Karen Armstrong’s Holy War from his local library in west Sumatra in 2005, he had little inkling of his own religious battle to come. But after posting “God doesn’t exist” on Facebook, the soft-spoken civil servant, 30, faces up to 11 years in jail for what is considered blasphemy in Indonesia.

His case has stoked a debate in the world’s most populous Muslim nation, whose 240 million citizens are technically guaranteed freedom of religion but protected by law only if they believe in one of six credos: Islam, Catholicism, Protestantism, Buddhism, Confucianism and Hinduism. Those who question any of those face five years in prison for “insulting a major religion”, plus an additional six years if they use the internet to spread such “blasphemy” to others.

Agence France-Press also reports that, “After writing the Facebook comment, Aan was beaten by a mob of dozens in his hometown in Pulau Punjung in western Sumatra.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Kuwait News Agency reports:

Minister of Justice and Minister of Awqaf and Islamic Affairs Jamal Ahmad Al-Shihab confirmed Thursday that the government would not reject the anti-blasphemy bill… “Freedom of expression does not mean defaming or offending sanctities of nations,” Al-Shihab said…. The first [provision, passed Thursday by the National Assembly,] makes insulting or mocking God and His Prophets and Messengers, Holy Quran, Prophet Mohammad and his wives punishable by death, if the offenders insisted on the crime and refused to declare his repentance. The same punishment is applied to those who describe themselves as new prophets or messengers from God.

For non-Muslims, the punishment would be up to 10 years in prison; for those who repent, the punishment would be up to 5 years or a fine of up to 10,000 Kuwaiti dinars. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From Neal v. Neal (Idaho 1994):

Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.

Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.

The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.

Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive.” The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal’s affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.

Note that the reasoning isn’t limited to married couples, but would also apply to other lovers who had an understanding of fidelity. Nor would it just apply to cheating on a relationship in which fidelity was understood: It could also apply to other situations where plaintiff argues that he or she wouldn’t have consented to sex with defendant had he or she known certain things about the defendant — e.g., that the defendant was already married, or that the defendant had been a prostitute at some point in the past, or that the defendant had lied about something in order to get plaintiff into bed, and so on. It’s a pretty broad theory that the Idaho Supreme Court adopted.

Now I should say that the court’s theory is not illogical: The principle that consent procured by lies, or by failure to disclosure something that plaintiff and a reasonable person would have likely found material, is not a valid consent is well-established in other contexts. The main objection, I think, is pragmatic: The theory would turn a vast range of relationship misconduct into a basis for litigation, with lots of opportunity for fraudulent claims. And the question is how to weigh this pragmatic objection with the argument that consent procured by deceit or nondisclosure of highly material facts is not consent (especially in a civil case).

The case is apparently unusual, at least outside cases of lies about sexually transmitted disease, or intentional concealment of such a disease. For the one case I know of involving a similar approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was infertile, see Barbara A. v. John G. (Cal. Ct. App. 1983) (2-to-1), disagreed with by Perry v. Atkinson (Cal. Ct. App. 1987). For a different approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was fertile, see Conley v. Romeri (Mass. App. Ct. 2004):

There is no indication that the defendant’s statement in July, 1996, after several dates, that he had been told by a fortune teller that he would have six children was made with the intent to induce the plaintiff to have sexual intercourse. At that stage of their relationship, such a statement may be seen only as an inducement to continue dating. There were no discussions between the parties about having children together, or of marriage. Moreover, the plaintiff’s feeling that she wasted time with the defendant because her biological clock was running does not constitute a battery. We conclude, as a matter of law, that the plaintiff’s consent was not vitiated, and that summary judgment properly was allowed for the defendant.