The Volokh Conspiracy

A very interesting analysis by Dr. Jogchum Vrielink (Institute for Constitutional Law at Leuven University in Belgium) of a recent Belgian court decision (though note that I haven’t read the decision myself):

“Tintin,” the brainchild of the late Belgian cartoonist Georges Remi (better known as Hergé) is experiencing new and exciting adventures these days. Not just in the cinema, but in Belgian courts as well. A Brussels court has rejected the suit of a Congolese student and a minority organization to obtain a ban on the comic book ‘Tintin in the Congo.’ The main conclusions about the case: One, despite this outcome, the reasoning of the court jeopardizes free speech. And two, as regards the applicants: offensive as the comic may be, their recourse to the law is both misdirected and counterproductive.

The basic outline: Bienvenu Mbuto Mondondo, a Congolese national studying in Brussels, filed suit to obtain an injunction against the continued publication, distribution and sale of the comic book ‘Tintin in the Congo’ (Tintin au Congo), as well as seeking to have the book withdrawn from bookshops and libraries in Belgium. Mondondo did so on the basis of alleged violations of the Belgian anti-racism legislation. In subsidiary order he demanded that a disclaimer be printed on the comic’s cover, warning of its offensive nature, along with the inclusion of an introduction of a similar nature. Mondondo was supported in his claims by an organization representing minorities, Conseil représentatif des associations noires (also known by its acronym, Cran).

On 10 February 2012, the Brussels Court of First Instance rejected all the applicants’ claims….

So holds Bland v. Roberts (E.D. Va. Apr. 24, 2012). Plaintiffs were fired from the Hampton, Virginia Sheriff’s Office, and they claim that this was because they backed the Sheriff’s opponent in an election, Jim Adams. In particular, two of the plaintiffs, Carter and McCoy, claim that they were fired for “liking” Adams’ page on Facebook.

Firing a government employee based on his speech on matters of public concern is generally unconstitutional. There are exceptions, for instance for speech by a high-level employee whose political affiliation is relevant to the job (such as the Sheriff’s top lieutenant), for speech that’s part of one’s job duties, or for speech that sufficiently disrupts the functioning of the office. But while the judge suggested that some of these exceptions might apply, he did not primarily rely on those exceptions.

Rather, the judge’s primary basis for his decision was that the firings couldn’t violate the First Amendment, because Facebook “likes” just didn’t qualify as potentially expressive for First Amendment purposes:

[Past First Amendment precedents] differ markedly from the case at hand in one crucial way: Both [precedents] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

That’s not right: A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. “[T]he First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection ….”

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point. (Thanks to James Ayden and Venkat Balasubramani and Eric Goldman (Ars Technica) for the pointer.)

This happened last month, but I just learned of the case because the trial court decision was just posted on Westlaw; Cline is appealing the removal. The decision is here; a newspaper article on the subject is here; the statute authorizing the removal, N.C. Gen. Stats. § 7A-66(6), provides that a D.A. may be removed by a court for “[c]onduct prejudicial to the administration of justice which brings the office into disrepute.” Here are some passages from the decision:

22. The statements of Tracey E. Cline, verbal and written, as set forth in this Order in the findings of fact paragraph numbers 19: “misconduct … involving moral turpitude, dishonesty and corruption,” paragraph 24: “kidnapping the rights of victims and their families,” paragraph 28: “intentional malicious conduct,” paragraph 39: “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct,” and paragraph 40: “the root of this contempt to be conceived in the womb of justice. a judge, … acknowledge that your hands are covered with the blood of justice, and be ashamed” are not protected by any guarantees of free speech under the First Amendment, nor did Tracey E Cline possess a qualified immunity to make those untruthful statements with reckless disregard for the truth. This false, malicious, direct attack on Judge Orlando F. Hudson, Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publically, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record. These specific statements were made with actual malice and with reckless disregard for the truth.

23. The statements of Tracey E. Cline, verbal and written, as set forth in the findings of fact paragraphs 19, 24, 28, 39 and 40 in this Order were made with actual malice, for which she has no qualified immunity and which are not protected speech under the First Amendment, constitute conduct by her that is prejudicial to the administration of justice which brings the office of the Durham County District Attorney into disrepute as set forth in N.C. Gen. Stat. § 7A-66(6).

24. Tracey E. Cline has lost the confidence of the attorneys and the public necessary to continue as an effective District Attorney for Durham County. Her statements in findings of fact paragraphs 19, 24, 28, 39 and 40 of this Order, when viewed with objective reasonableness, confirm a lack of sound judgment on her part, and a total failure on her part to give the Judicial Standards Commission time to consider her complaints. As a licensed attorney, she knew that she could seek remedies in the Judicial Standards Commission and the appellate courts. In fact, she has a complaint pending before the Judicial Standards Commission and a case on appeal with respect to the rulings by Judge Hudson. By recklessly making blatantly false allegations against Judge Hudson in the public record, totally lacking in factual support, attacking his morality, honesty and asserting that he is corrupt, Tracey E. Cline has crossed the line of protected speech under the First Amendment.

25. Both Cline and Judge Hudson are public employees. Both are elected by the citizens of Durham County to constitutional offices. The speech involved in this case was on a matter of public concern, notwithstanding the testimony of Durham attorney Bill Cotter that it sounded like a spat or dispute between two people that might be best settled by the North Carolina State Bar. The content, form, and context of Ms. Cline’s speech related to her analysis of the job performance of Judge Hudson. Since this is a matter of public concern, the Court must apply a balancing test as set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) as quoted in Corum v. UNC Board of Governors, 330 NC 761, 775 (1992). A government employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. A significant factor to consider is whether the speech impairs and impedes the speaker’s performance of her duties and interferes with the regular operation of the office of the District Attorney in the Superior Courts of Durham County. Unquestionably, the statements of Tracey Cline in findings of facts paragraphs 19, 24, 28, 39 and 40 of this Order has impeded the efficient flow of work in the Superior Courts of Durham County. The falsity of the statements and the reckless manner in which they were made without regard to their truth afford no constitutional free speech protection to Tracey Cline for their utterance.

26. Based on the Findings of Fact established by clear, cogent and convincing evidence in paragraphs 19, 24, 28, 39 and 40 and the Conclusions of law in this Order, grounds exist for removal of Tracey Cline from the office of Durham County District Attorney pursuant to N.C. Gen. Stat. § 7A-66(6).

I can’t speak to the merits of the case, but I thought it was worth noting, partly because it comes on the heels of the ouster of D.A. Nifong — Cline was the first D.A. elected following Nifong’s ouster, and had worked for Nifong — and partly because it’s pretty unusual for elected officials to be removed from office by judges for criticism of other judges. I’d love to hear from people who know more about this case.

UPDATE: Prof K.C. Johnson (Durham-in-Wonderland) has been following this matter closely, and has many posts on the subject.

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

Unfortunately, this dangerous result is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.

Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.

UPDATE: Before writing this post, I had not noticed that Eugene had made some of the same points in this April 20 post. I apologize for any excessive duplication.

I blogged last week about the People’s Rights Amendment, which has been introduced by Congressman Jim McGovern. Among other things, I argued, the Amendment would mean that Congress and state and local legislatures would be free to restrict what’s printed by newspapers that are organized as corporations. The National Review Online took the same view. Now the backers of the Amendment are arguing that the National Review say that’s a “false claim[]” (thanks to Opher Banarie for the pointer):

Your editorial also makes false claims that the People’s Rights Amendment would adversely impact freedom of the press. These claims are clearly contradicted by section 3 of the amendment, which reads:

Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

Well, let’s look at the whole text of the suggested Amendment:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So under section 1, all constitutional rights, including the First Amendment, are limited to “natural persons.” Under section 2, that doesn’t include corporations. And section 3 preserves the “people‘s rights of freedom of speech, freedom of the press, [and] free exercise of religion” (emphasis added), which — given section 2 — excludes the rights of newspapers (and similar organizations) organized as corporations. So if the People’s Rights Amendment were enacted, Congress would have an entirely free hand to censor what is published in newspapers organized as corporations, what is published by book publishers organized as corporations, what is created by movie studios that are organized as corporations, what is distributed by music companies that are organized as corporations, and so on.

Now this would have two effects.

First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will drive most non-corporate-owned large media organizations out of business (or at least will make them much smaller and less effective at producing the sort of speech that requires a good deal of money), and will give corporate-owned large media organizations the overwhelming majority of the market share. And then Congress and state and local legislatures would have a free hand to censor those organizations as much as they can (at least up to the point where the economic cost of the censorship would be large enough to outweigh the economic benefit of the corporate form).

Would that “adversely impact freedom of the press”? Or was that just a “false claim[]” on the National Review Online’s part (and on my part)?

The National reported, in February:

JT, a Briton who works in the parks and recreation section at Abu Dhabi Municipality, … was reported to police by colleagues after he lost his temper during a meeting over delays to a project he was working on designing mosque gardens.

“When will we finish with the damn mosques?” he was reported as saying.

Yesterday’s Al Arabiya reports that the case is on appeal, and the decision is scheduled to be announced April 30. Thanks to Louis Offen for the pointer.

Al Arabiya reports (see also BBC and Agence France Press):

A Cairo court upholds a three-month jail sentence for Egyptian film star and the Arab world’s most famous comedian, Adel Imam, on charges of insulting Islam, Al Arabiya TV reported on Monday….

The 71-year-old celebrity said that among the works criticized are the 1994 production “al-Irhabi” (The Terrorist), in which he portrays an Islamic fundamentalist and the play “al-Zaeem” (The Leader), a comedy in which Imam pokes fun at the region’s autocratic leaders.

Another prominent Egyptian, Christian businessman and politician Naguib Sawiris, “is facing similar charges of defaming Islam after he posted pictures of Mickey and Minnie Mouse dressed in Muslim attire on Twitter” — the picture appears to be this one:

Thanks to Opher Banarie for the pointer.

That’s the People’s Rights Amendment, introduced by Congressman Jim McGovern:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.”

Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: “My ‘People’s Rights Amendment’ is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.”) Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.

State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights. Quite a proposal; I blogged more generally about this issue here, but it seems to me that simply listing the consequences of Congressman McGovern’s proposal largely suffices to explain its flaws.

The bill, signed by the Governor on April 13, is here; Colorado’s old criminal libel law had apparently been ““used seven times in Colorado in the last two years,” though “in some cases, the original charge [was] changed to something else, like harassment.” Thanks to Ross Kaminsky for the pointer.

So argue two lawyers in a recent Chronicle of Higher Education article, warning of legal liability if colleges don’t take suitable steps to suppress such speech. The article is short on definitions of cyber-bullying, but calls for colleges to update their “anti-bullying and social-media policies to take into account the immediate and significant harm that can be inflicted when bullying behavior leaves the dormitory or the quad and goes online,” and to have administrative processes to “foster a safe and supportive” (and “more inclusive”) “environment for all of its students” by “[m]anaging the recent and exponential growth of social-media sites and digital forms of communication.”

This sounds to me like more than just a call for punishing constitutionally unprotected speech, such as threats of violence — though how much more is hard to tell. It will be interesting to see what new university speech codes aimed at preventing “cyber-bullying” are going to spring up in the coming years.

From Reuters (thanks to Victor Steinbok for the pointer):

A movie telling the story of [a soccer game] 70 years ago between Nazi soldiers and Ukrainians in occupied Kiev has puzzled Ukrainian regulators who need to decide whether it can be released ahead of the Euro soccer championship.

Ukraine’s State Cinema Agency was due to make a ruling on “Match”, a joint Russian and Ukrainian production, by April 6. But it has delayed a decision until May 1 ….

Ukrainian media are linking the authorities’ apparent hesitancy to national sensitivities ahead of the Euro-2012 soccer tournament which Ukraine will host together with Poland in June.

The German national team will take part in the championship.

According to Ukrainian media reports, the movie could also upset local audiences because it depicts several Ukrainian Nazi collaborators….

An interesting decision in People v. Nunez (N.Y. Crim. Ct. Apr. 6, 2012, just posted today on Westlaw). The introduction plus the conclusion:

The defendant, a “member” of the “Occupy Wall Street Movement” is charged with Trespass (PL § 140.00[5] ), Disorderly Conduct (PL § 240.20[6] ) and Obstructing Governmental Administration in the Second Degree (PL § 195.05) as a result of the alleged incidents that occurred on November 15, 2011 during the “eviction” of the occupiers from Zuccotti Park….

While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one’s obligations to work within the lawful process allowed in our democratic society. The “99%” is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the “1%” on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.

Accordingly, it is hereby:

ORDERED, that the defendant’s motion to dismiss the charge of Trespass (PL § 140.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, that the defendant’s motion to dismiss the charge of Disorderly Conduct (P.L. § 240.20[6] ) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, the defendant’s motion to dismiss the charge of Obstructing Governmental Administration in the Second Degree (P.L. § 195.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, that all other aspects of the defendant’s motion not addressed are likewise denied, including an inferred motion to dismiss the accusatory instrument in the furtherance of justice.

So holds Moss v. United States Secret Service (9th Cir. Apr. 9, 2012). The protesters claim that the Secret Service required them to move further (on public streets) from where the President was staying, ostensibly for security reasons, but did not require this of a similar group of pro-President-Bush demonstrators. The Ninth Circuit holds that the lawsuit can go forward, because if the facts are as claimed, the Secret Service’s action would be unconstitutional.

That sounds quite right to me. When a government official — or anyone else — is speaking on private property, or even public property that’s temporarily rented out to a private organization, the managers of the property may choose to allow some speech on the property but not other speech. But in a traditional public forum, like a public sidewalk, such content- and viewpoint-based restrictions are impermissible (though content-neutral restrictions justified by security concerns sometimes might be, if they are narrow enough).

The court also allows the protesters (again, I think correctly) to go forward with their Fourth Amendment excessive force claim. “There is little doubt that …, the force alleged here was excessive.” (Of course, recall that at this stage in the lawsuit, the court is discussing allegations and not factual findings.) “The protestors allege that without ensuring that they heard the police warning that instructed them to move, and without giving them time to move of their own accord, the police, ‘including officers clad in riot gear, forced the anti-Bush demonstrators to move …, in some cases by violently shoving’ them, ‘striking them with clubs and firing pepper spray bullets at them.’ Once on the east side of Fifth Street, the police ‘divided the [anti-Bush protestors] into two groups, encircling each group,’ and ‘separat[ing]‘ families, ‘including children, some of whom were lost, frightened and traumatized.’ Although some protestors attempted to leave the area, they were prevented from doing so.”

Thanks to How Appealing for the pointer.

From today’s Wyoming Supreme Court decision in Operation Save America v. Town of Jackson (Wyo. Apr. 10, 2012); the result seems quite correct to me:

Because the TRO imposes content-based restrictions on OSA’s speech in a traditional public forum, the TRO is subject to strict scrutiny.

The Town cites the need to protect children attending the Boy Scout Elk Fest from disturbing images of aborted and dismembered fetuses as its compelling government interest in support of the TRO. It further asserts an interest in preserving the peace, order, safety and tranquility of the Boy Scout Elk Fest.

The need to protect the psychological well being of children has been recognized as a compelling government interest. Sable Communications, 492 U.S. at 126; Ginsberg, 390 U.S. at 638, 88 S.Ct. at 1280. The Supreme Court, however, has declared that that interest is not without boundary [citing Brown v. Entertainment Merchants Ass’n, the violent video games case –EV]….

Our concern in the present case is not with the general proposition that protecting youth is a compelling government interest, but is instead with the record. The record contains no evidence concerning the injury or potential injury to children from viewing the images displayed by OSA, and of particular importance in the context of the request for injunctive relief, evidence of irreparable harm to the children. The affidavit of Lt. Gilliam describes the contact OSA had with youth in the community and describes the materials OSA showed to the young audience, but it does not describe how those materials impacted them, or could impact them. In the absence of such evidence, the government has not made its required showing of an “actual problem” in need of solving. Brown, 131 S.Ct. at 2738; Playboy, 529 U.S. at 816.

We turn then to the Town’s concerns with a breach of the peace. While a government does have a recognized interest in maintaining peace in its community and at its events, the Supreme Court has held that this is not a basis to proscribe speech, unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Texas v. Johnson, 491 U.S. 397, 409 (1989); see also Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969)….

The evidence the Town submitted concerning the potential for a breach of peace as a result of the OSA demonstrations was an incident in which a counter-protestor tried to run over an OSA member with his vehicle. Lt. Gilliam’s affidavit reported that this individual was arrested and charged. The record contains no evidence that OSA engages in speech that is directed at inciting violence or is likely to produce imminent lawless action, and in the absence of such evidence, we conclude that prohibiting OSA’s speech is not supported.

For a similar case, see Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep’t (9th Cir. 2008); for a case that upheld such a restriction (in my view, incorrectly), see Bering v. Share (Wash. 1986)

Gazeta.ru reports on this; the protesters were arrested for violating a recently enacted St. Petersburg law that bans “propaganda of homosexuality among minors,” which apparently covers any pro-homosexuality messages in a public place where minors may be present. For more, in Russian, see here and here.

I’m writing a short article on state laws that restrict private employers (as well as government employers) from discriminating against employees based on the employees’ speech or political activity. There are more such laws than many think, and while I’m ambivalent about the laws, I thought they were worth flagging for people to consider.

In the process, I came across a federal law — an aspect of the Civil Rights Act of 1871, 42 U.S.C. § 1985 — that might do the same as to retaliation for employee speech that supports a federal candidate, at least in some circuits and in situations where at least two people are involved in the firing decision. But I’m not an expert on § 1985 law, which is quite complicated, so I thought I’d post a very rough draft of this section of my article, and see what readers who do know this area have to say. Please note that the article is descriptive and analytical, not normative: I’m not looking for arguments about what the law should be, but rather about what the reasonable interpretation of the law is, given the text and the existing Supreme Court precedents.

(Note that I discuss in another part of the article the possibility that such laws may be unconstitutional in some situations, for instance if they purport to limit a newspaper’s ability to fire a columnist for the columnist’s speech. Note also that publicly urging people to fire someone for his speech, even when the firing would be illegal, is likely constitutionally protected under Brandenburg v. Ohio and NAACP v. Claiborne Hardware, though actually doing the firing, in concert with one or more other people, would be actionable.)

The Civil Rights Act of 1871 may prohibit some kinds of employer retaliation based on an employee’s speech supporting or advocating for a federal candidate. Section 2 of the Act, now codified at 42 U.S.C. § 1985, provides in relevant part, that it is civilly actionable for “two or more persons” to “conspire” (and to act pursuant to the conspiracy)

to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy ….

In interpreting a closely analogous portion of the same statute, the Court has held that “injur[ing] any citizen in person or property” includes getting the person fired from his job,[1] and that an agreement among two or more managers of a company to get the employee fired from the company may constitute an actionable “conspir[acy].” It thus follows that it is civilly actionable (and likely criminal[2]) for two or more managers to have an employee fired for supporting or advocating for the election of a federal candidate.

In several circuits, this conclusion may usually be blocked by the “intra-corporate conspiracy” doctrine, under which a conspiracy is not actionable if the conspirators consist of employees of the same corporation (plus perhaps the corporation itself) who are conspiring to have the corporation perform an action, such as firing someone.[3] But in the Third and the Tenth Circuits,[4] and possibly also in the D.C., First, and Ninth Circuits,[5] this doctrine doesn’t apply to § 1985 claims, so when two or more managers conspire to get an employee fired based on his support or advocacy of a federal candidate, § 1985 offers a remedy.

Continue reading ‘Federal Law (Sometimes) Restricting Private Employers from Firing Employees Based on Employees’ Advocacy for Federal Candidate’ »

So holds Stand Up For America Now v. City of Dearborn (E.D. Mich. Apr. 5, 2012). Plaintiffs (including Terry Jones, the Koran-burning pastor) asked for a permit to “speak[] to the public from the grassy across from the Dearborn Islamic Center on Saturday, April 7, 2012 [the day before Easter] regarding the dangers of Sharia law and how it threatens American freedoms,” and “to distribute a flyer which includes Stand Up America Now’s contact information and a quotation from the Holy Bible: ‘Jesus answered, ‘I am the way and the truth and the life. No one comes to the Father except through me.’ John 14:6.’” They “estimate approximately 20-25 people will attend the event” (I take it they refer to attendance by their sympathizers, and don’t include any possible critics or counterdemonstrators).

A Dearborn ordinance “requires the sponsor of an event to sign an indemnification agreement with terms established by the legal department,” and “leaves unfettered discretion with the legal department” as to the terms. In this instance, the legal department said it would grant a demonstration permit, but only if the group signed a release that said,

In consideration for the right to utilize City of Dearborn property, Standup America! and Wayne Sapp, their employees, representatives, agents, and participants agree to RELEASE AND FOREVER DISCHARGE the City of Dearborn, a municipal corporation, and its officers, employees, and agents, from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property.

The opinion did not say whether this was the standard agreement used for all demonstration permits, or whether other groups were given permits without having to sign such a broad waiver. In any case, the court said requiring the waiver was unconstitutional:

The clause encompasses not only liability for physical harm to the permittees, but also for deprivation of permittees’ constitutional rights. “We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.” Long Beach Area Peace Network, 574 F.3d at 1040. The clause also requires permittees to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City. Id. The ordinance requiring the indemnity agreement and the “Hold and Harmless” presented to Plaintiffs are unconditional [likely a typo for "unconstitutional" -EV] and violate the First Amendment to the United States Constitution as to Plaintiffs and others who wish to exercise their rights to speak and assemble in the public fora.

The court thus granted a temporary restraining order allowing the demonstration without plaintiffs’ having to sign the release. Seems correct to me. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was “a highly charged atmosphere” in the school, a justification that’s insufficient under Tinker.)

So this strikes me as pretty clearly unconstitutional, at least absent some showing of material disruption caused or likely to be caused by the T-shirt. An application for a temporary restraining order, aimed at setting aside the principal’s decision, was filed yesterday in federal district court, and is now pending (Couch v. Wayne Local School Dist., No. 1:12-cv-00265-MRB). For more, see this Cincinnati Enquirer article. Thanks to Prof. Howard Friedman (Religion Clause) and Thomas Riebs for the pointer.

That’s the question brewing in Lexington, Kentucky. The Gay and Lesbian Services Organization has filed the following complaint with the Lexington Human Rights Commission (paragraph breaks added):

The Pride Festival committee of the Gay and Lesbian Services Organization (GLSO) received a quote from Hands On Originals in December by phone (from an employee named Kaleb) to produce t-shirts for the 5th annual Pride Festival in Lexington. The quote from Hands On Originals was the lowest bid from a local company, and the committee intended to move forward with having them produce shirts. However, a committee member first called the business with the intention of finding out whether any lower price could be negotiated. He reached someone there who asked who he had previously talked to. At that moment, he could not remember their name, and when the name “Blaine” was suggested, he agreed. Numerous phone messages back and forth were exchanged before the committee member was finally able to speak with Blaine, who represented himself as an owner of Hands On Originals.

His inquiries were related to what the GLSO was, what our mission was, and what we were promoting. The committee member explained, including that the t-shirt would only contain a stylized number “5″ on the front and the name of the festival, and sponsors on the rear.

When Blaine learned that it was a gay pride festival, he asked, “You know we’re a Christian organization, don’t you?” He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival. He suggested that he could refer us to a different business who would print the shirts. Our committee member told them he would take that offer to the board, but that he felt that we would not want to do business with anyone who did business with Hands On Originals, based on their discrimination.

On March 25th, the GLSO board met in emergency session and agreed to file a complaint with the HRC under the Lexington Fairness Ordinance.

Here, by the way, is Blaine Adamson’s side of the story, which seems factually consistent with the GLSO’s allegations.

1. It seems to me that Hands On Originals didn’t violate the ordinance. The ordinance does, among other things, ban public accommodations discrimination based on sexual orientation (cf. Ky. Rev. Stat. § 344.120 and Ky. Rev. Stat. § 344.130, which it incorporates by reference), and Kentucky public accommodations discrimination law would cover T-shirt shops (since it covers “any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public”). But it defines “sexual orientation” to “mean an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality.”

Hands On Originals was apparently discriminating based on the message on the T-shirt (“He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival”), not based on the sexual orientation of the individual who called in the order, or of other individuals in GLSO. That doesn’t seem to be discrimination based on “an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality,” and is thus not barred by the Ordinance.

2. But even if the Ordinance does prohibit what Hands On Originals did (for instance, if it’s interpreted the way Massachusetts courts interpreted the public accommodations ordinance in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)), then the Ordinance unconstitutionally compels speech, because it requires printers to print material that they do not want to print. Abood v. Detroit Bd. of Ed. (1977) and Keller v. State Bar (1990) reaffirmed that the government generally may not compel someone to give over money to a private or even quasi-public entity when that money will be used for political or ideological speech. (There is an exception for when the government is acting as employer or regulator of the bar, and the compulsory payments are germane to the collective bargaining functions of a union or a bar association, but that does not apply here.) If so, then requiring someone to actually physically print political or ideological speech is an even clearer First Amendment violation.

Indeed, speech on T-shirts is as protected as speech in books. Under the GLSO’s view, a book publisher that is opposed to (say) Scientology could be required to print pro-Scientology books. Likewise, a printer that hates Nazi ideology could be required to print pro-Nazi leaflets in those jurisdictions — such as Washington, D.C. and Seattle — that ban public accommodations discrimination based on political affiliation. That, it seems to me, can’t be constitutional: Though the publishers (or the T-shirt printer) would be required to produce speech, rather than utter or display it himself, the creation of speech is itself speech, and compelled creation of speech is a speech compulsion.

Readers of the blog might recognize this as much the same issue involved in Elane Photography v. Willock, the New Mexico wedding photographer case that is still pending before the New Mexico Court of Appeals. There, though, some people argued that such photographs aren’t sufficiently ideologically significant, and that therefore there isn’t a First Amendment problem with requiring a wedding photographer to photograph same-sex commitment ceremonies. Here, the printer is being required to produce T-shirts — or, as I said, it could just as well be books or leaflets — that express support for a clearly ideological event. I think both the photographer and the T-shirt printer should win, but in any event the T-shirt printer’s case strikes me as especially strong.

3. What about the free exercise of religion, assuming that Blaine Adamson sincerely believes that it would violate his religious obligations to print T-shirts that promote a gay pride event?

Continue reading ‘May the Government Force You to Print Ideological Materials You Don’t Want to Print?’ »

The AP reports:

A Greek court dismissed defamation charges Tuesday against a German magazine that had illustrated an article on Greece’s economic crisis with a doctored photo of the Venus de Milo statue [draped in a Greek flag and raising her middle finger].

The 2010 Focus magazine article, headlined “Cheats in the European family,” appeared after Greece admitted it had falsified data to hide its acute economic woes, problems that ignited the whole European debt crisis.

A Greek prosecutor had charged the magazine with defamation and insulting a national symbol ….

But the Athens court ruled that Focus had referred to acts by Greek politicians and not the country’s population in general….

There is apparently a separate case progressing against six other employees of the magazine.

That’s what Arizona HB 2549, which was just passed by both houses (though not yet signed by the Governor) provides, in relevant part:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

I take it that this refers only to speech intended to offend someone who receives it, and not someone who hears about it indirectly. But note the significance of the shift from a telephone to “any electronic or digital device”: Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would be unconstitutional as well.)

The same would be true if someone posts something lewd in one of these places in order to annoy or offend someone, for instance if he posts a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And note that, given that case, the speech need not even be about one of the recipients, so long as it’s intended to annoy or offend one of the recipients.

Naturally, readers of this blog know that I am no fan of using obscene, lewd, or profane language with intent to annoy or offend people. But, given the First Amendment, the government may not restrict such speech on blogs, e-mail discussion lists, and newspaper Web sites. If the Arizona Legislature wants to apply the ban on telephone harassment to other one-to-one devices, such as text messaging or e-mails sent directly to a recipient, it may well be free to do so. (For more on this, see Volokh, Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. Chi. Legal Forum 377, parts II.B-.C (1996).) But the just-passed bill has no such limitation, and thus poses the danger of restricting a great deal of speech that is protected by the First Amendment. Thanks to Alan Solot for the pointer.

Some of our readers have been following Obsidian Finance Group, LLC v. Cox, the libel case in which our local counsel Benjamin Souede and I are representing defendant Crystal Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections; that is one of the decisions that we are challenging with our motion for new trial. We filed a motion for a new trial in the district court, and on Tuesday the court denied the motion, issuing a long opinion on the subject. We will now be appealing to the Ninth Circuit.

If you’re interested, here are the trial court documents:

• Our Memorandum in Support of the Motion for New Trial.
• The Electronic Frontier Foundation’s Amicus Brief in Support of the Motion for New Trial.
• The plaintiffs’ Opposition.
• Our Reply.

Agence France Press reports (thanks to Ed Grinberg for the pointer):

A Paris court on Thursday found Jean-Paul Guerlain, the former “nose” behind the world-famous perfume brand, guilty of racial insults after televised remarks he made about “negroes” and fined him.

Asked in a 2010 interview about how he created the Samsara scent, Guerlain replied: “For once, I set to work like a negro. I don’t know if negroes have always worked like that, but anyway.”

The court judged that the second part of his reply was racist and fined him 6,000 euros ($8,000). The maximum it could have imposed was six months in prison and a 22,500-euro fine.

Guerlain was also ordered to pay 2,000 euros in damages to each of three anti-racist groups that were civil plaintiffs in the case….

Guerlain used the word “negre”, which is also commonly used in France in its other meaning signifying “ghost writer”.

Juan Carols Hidalgo (Cato@Liberty) writes:

The Argentine government has severely restricted the importation of books due to “human health concerns” [in Spanish]. That’s right. According to the government, it can be dangerous to “page through” a book that has high lead quantities in its ink. “If you put you finger in your mouth after paging through a book, that can be dangerous,” said Juan Carlos Sacco, the vice-president of an industrialist organization that supports the measure.

The government claims that this is not a ban. However, since each buyer has to demonstrate at the airport’s customs office that the ink in the purchased book has lead quantities no higher than 0.006% in its chemical composition, the result is that all book imports into the country are stalled….

Thanks to Opher Banarie for the pointer.

Texas Penal Code § 21.15(b)(1) makes it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.” (A separate provision applies to photographing people in bathrooms or private dressing rooms.) In Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011), a Texas appellate court upheld the statute reasoning that “[p]hotography” — apparently including the taking of photographs — “is a form of speech normally protected by the First Amendment,” but

The State argues that the statute is not a regulation of speech at all, but instead is a regulation of the photographer’s or videographer’s intent. Discussing a similar First-Amendment issue, the Court of Criminal Appeals concluded that a telephone-harassment statute does not implicate the free speech guarantee — even though the conduct may include spoken words — where the statute focuses on the actor’s intent to inflict emotional distress and not to legitimately communicate ideas, opinions or information. Scott, 322 S.W.3d at 669–70. In much the same way, Texas Penal Code section 21.15(b) regulates a person’s intent in creating a visual record and not the contents of the record itself. We thus conclude that the statute is not a regulation of speech and does not violate the First Amendment.

Today, the Texas Court of Criminal Appeals refused to review the case (though it did withdraw the lower court’s attempt to revise the opinion, because those revisions were seen as untimely). Two judges would have taken the case, and one wrote a dissent from the denial of review, arguing:

This statute is virtually unbounded in its potential application. The photographing of anyone, anywhere, and under any circumstances can be an offense so long as the photograph was taken without consent and the actor harbored the requisite sexual mental state. Photography has been recognized as a form of expression protected by the First Amendment. While conceding that, the court of appeals nevertheless concluded that the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.”

But that conclusion does not necessarily exempt the statute from the First Amendment’s protections. The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of “freedom of thought,” including the freedom to think sexual thoughts. It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment. There are limits to the freedom of thought protected by the First Amendment: the First Amendment does not, for example, protect the right to privately possess child pornography. But in the statute before us, the person photographed could be a fully-clothed adult walking down a public street. The breadth of this statute is breathtaking, and the type of intent that it regulates is not inherently exempt from First Amendment protection.

That sounds right to me. For some thoughts about the dangers of purpose tests in First Amendment law, see pp. 271-284 of this article.