Eugene Volokh's Blog, page 2730
August 14, 2011
Distinguishing Wickard
Another interesting portion of the Eleventh Circuit's decision striking down the individual mandate is its discussion of Wickard v. Filburn. As the court's opinion notes, the Supreme Court (in Lopez) characterized Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity." As a consequence, the Eleventh Circuit concluded, Wickard "provides perhaps the best perspective on an economic mandate" and would need to be distinguished were the mandate to be struck down. With this in mind, below the jump are portions of the Eleventh Circuit's discussion of Wickard.
Wickard is striking not for its similarity to our present case, but in how different it is. Although Wickard represents the zenith of Congress's powers under the Commerce Clause, the wheat regulation therein is remarkably less intrusive than the individual mandate.
Despite the fact that Filburn was a commercial farmer and thus far more amenable to Congress's commerce power than an ordinary citizen, the legislative act did not require him to purchase more wheat. Instead, Filburn had any number of other options open to him. He could have decided to make do with the amount of wheat he was allowed to grow. He could have redirected his efforts to agricultural endeavors that required less wheat. He could have even ceased part of his farming operations. The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act's economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching.
Although this distinction appears, at first blush, to implicate liberty concerns not at issue on appeal, in truth it strikes at the heart of whether Congress has acted within its enumerated power. Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government. This suggests that they are removed from the traditional subjects of Congress's commerce authority, in the same manner that the regulated actors in Lopez and Morrison were removed from the traditional subjects of Congress's commerce authority by virtue of the noneconomic cast of their activity.
This departure from commerce power norms is made all the more salient when we consider principles of aggregation, the chief addition of Wickard to the Commerce Clause canon. Aggregation may suffice to bring otherwise nonregulable, "trivial" instances of intrastate activity within Congress's reach if the cumulative effect of this class of activity (i.e., the intrastate activity "taken together with that of many others similarly situated") substantially affects interstate commerce. Wickard, 317 U.S. at 127–28, 63 S. Ct. at 90. Aggregation is a doctrine that allows Congress to apply an otherwise valid regulation to a class of intrastate activity it might not be able to reach in isolation. . . .
The question before us is whether Congress may regulate individuals outside the stream of commerce, on the theory that those "economic and financial decisions" to avoid commerce themselves substantially affect interstate commerce. Applying aggregation principles to an individual's decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. Given the economic reality of our national marketplace, any person's decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good. From a doctrinal standpoint, we see no way to cabin the government's theory only to decisions not to purchase health insurance. If an
individual's mere decision not to purchase insurance were subject to Wickard's aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.96 Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause. See [Lopez] at 580, 115 S. Ct. at 1640 (Kennedy, J., concurring) ("In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.").Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation. See, e.g., Morrison, 529 U.S. at 617, 120 S. Ct. at 1754 ("We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." (emphasis added)). Instead, what matters is the regulated subject matter's connection to interstate commerce. That nexus is lacking here. It is immaterial whether we perceive Congress to be regulating inactivity or a financial decision to forego insurance. Under any framing, the regulated conduct is defined by the absence of both commerce or even the "the production, distribution, and consumption of commodities"—the broad definition of economics in Raich. 545 U.S. at 25, 125 S. Ct. at 2211. To connect this conduct to interstate commerce would require a "but-for causal chain" that the Supreme Court has rejected, as it would allow Congress to regulate anything. Morrison, 529 U.S. at 615, 120 S. Ct. at 1752.
August 13, 2011
The Reasoning of the Eleventh Circuit's Mandate Opinion
When a court hands down a 207-page majority opinion on a Friday afternoon in August, close scrutiny of its reasoning in the blogosphere generally waits for Monday. But I've given a quick read to the Eleventh Circuit's majority opinion in the mandate case, and I thought it might be helpful to offer a tentative overview of the Eleventh Circuit's reasoning. The opinion has a lot of background, and then the real analytical work starts around page 100.
1) The majority significantly downplays the proposed activity/inactivity distinction. As the Court says on page 109, "we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case." The majority opinion is ultimately more focused on the idea that if the Affordable Care Act is upheld, then Congress has almost plenary authority in the area of economics and purchases relating markets — something the majority says Commerce Clause jurisprudence doesn't allow.
2) Although the Eleventh Circuit agrees that cases like Wickard and Raich were based on the "aggregation" principle of how to assess a link with interstate commerce that Congress can regulate, the court concludes that it cannot apply the same methodology here because it would lead to the federal government having too much power:
Applying aggregation principles to an individual's decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. Given the economic reality of our national marketplace, any person's decision not to purchase a good would, when aggregated, substantially affect interstate ommerce in that good. From a doctrinal standpoint, we see no way to cabin the government's theory only to decisions not to purchase health insurance. If an individual's mere decision not to purchase insurance were subject to Wickard's aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument. Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause. . . . Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation.
3) The Eleventh Circuit also reasons that the Affordable Care Act is constitutionally suspect because it delves into a subject of traditional state regulation, namely the provision of health care:
The health care industry also falls within the sphere of traditional state regulation. A state's role in safeguarding the health of its citizens is a quintessential component of its sovereign powers. The Supreme Court has declared that the "structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." Gonzales v. Oregon, 546 U.S. 243, 270, 126 S. Ct. 904, 923 (2006) (quotation marks and citation omitted). Numerous Supreme Court decisions have identified the regulation of health matters as a core facet of a state's police powers. See, e.g., Hill v. Colorado, 530 U.S. 703, 715, 120 S. Ct. 2480, 2489 (2000) ("It is a traditional exercise of the States' police powers to protect the health and safety of their citizens." (quotation marks and citation omitted). . . .
. . . Here, it is undisputed that the individual mandate supersedes a multitude of the states' policy choices in these key areas of traditional state concern. Congress's encroachment upon these areas of traditional state concern is yet another factor that weighs in the plaintiffs' favor, and strengthens the inference that the individual mandate exceeds constitutional boundaries
4) The majority then rejects the argument that the individual mandate is part of an "essential part of a larger regulation of economic activity," which Lopez indicates would allow regulation. The Court suggests in a passing statement that this is the work done by the Necessary and Proper Clause. (See top of 163–164) The problem, the majority reasons, is that the individual mandate is not trying to help Congress regulate insurance but rather to limit costs of that regulation:
An individual's uninsured status in no way interferes with Congress's ability to regulate insurance companies. The uninsured and the individual mandate also do not prevent insurance companies' regulatory compliance with the Act's insurance reforms. At best, the individual mandate is designed not to enable the execution of the Act's regulations, but to counteract the significant regulatory costs on insurance companies and adverse consequences stemming from the fully executed reforms. That may be a relevant political consideration, but it does not convert an unconstitutional regulation (of an individual's decision to forego purchasing an expensive product) into a constitutional means to ameliorate adverse cost consequences on private insurance companies engendered by Congress's broader regulatory reform of their health insurance products.
5) Although the majority opinion offers a summary of the Necessary and Proper clause jurisprudence in its preliminary section, see pages 93–99, it does not return much to the Necessary and Proper clause afterwards in its analysis of why the majority thinks the mandate exceeds the Commerce Clause power. As far as I can tell, that is because the court treats the Commerce Clause cases as being essentially about the Necessary and Proper Clause, too. As a result, covering the Commerce Clause power implicitly covers the Necessary and Proper clause power. (Cf. Scalia's concurring opinion in Raich). Based on a quick read, it seems the majority's view is that the only other work done by the Necessary and Proper Clause in the Commerce Clause setting is to allow regulation outside interstate commerce that is an "essential part of a larger regulation of economic activity." This view largely circumvents the deferential standard of the Supreme Court's caselaw on the Necessary and Proper Clause such as Comstock, replacing it it with a question that triggers more careful judicial scrutiny: whether the regulation is an "essential" part of a larger regulation of economic activity. And the Court concludes that it's not "essential," and therefore not permitted within the Commerce Clause.
Anyway, that's my quick read, and it's entirely possible that I've missed something along the way. Corrections most welcome in the comment thread, of course.
Has TSA Learned Its Lesson?
Noah Shachtman suggests the Transportation Security Administration may (finally) be adopting a more rational approach to airport security. Let's hope so.
The Eleventh Circuit on the "Unprecedented" Mandate
One of the more interesting passages of the Eleventh Circuit' decision striking down the individual mandate concerns the "unprecedented" nature of the mandate – a subject that has been much discussed on this blog (see, e.g., here). After cataloging some of the uses to which Congress has put the commerce power, the court observes the conspicuous lack of any analog to the individual mandate in the nation's history, and notes that both the CBO and CRS commented on the "unprecedented" and potentially problematic nature of a health insurance mandate as early as 1994. The court continues (below the jump):
The fact that Congress has never before exercised this supposed authority is telling. As the Supreme Court has noted, "the utter lack of statutes imposing obligations on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power." Printz, 521 U.S. at 907–08; see also Va. Office for Prot. & Advocacy v. Stewart , 563 U.S. __, __, 131 S. Ct. 1632, 1641 (2011) ("Lack of historical precedent can indicate a constitutional infirmity.") . . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle. See Printz, 521 U.S. at 905, 117 S. Ct. at 2370 ("[I]f . . . earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.").
Traditionally, Congress has sought to encourage commercial activity it favors while discouraging what it does not. This is instructive. Not only have prior congressional actions not asserted the power now claimed, they "contain some indication of precisely the opposite assumption." Id. at 910, 117 S. Ct. at 2372. Instead of requiring action, Congress has sought to encourage it. The instances of such encouragement are ubiquitous, but the example of flood insurance provides a particularly relevant illustration of how the individual mandate departs from conventional exercises of congressional power.
In passing the National Flood Insurance Act of 1968, Congress recognized that "from time to time flood disasters have created personal hardships and economic distress which have required unforeseen disaster relief measures and have placed an increasing burden on the Nation's resources." 42 U.S.C. § 4001(a)(1). Despite considerable expenditures on public programs designed to prevent floods, those programs had "not been sufficient to protect adequately against growing exposure to future flood losses." Id. § 4001(a)(2). In response to this problem, however, Congress did not require everyone who owns a house in a flood plain to purchase flood insurance. In fact, Congress did not even require anyone who chooses to build a new house in a flood plain to buy insurance. Rather, Congress created a series of incentives designed to encourage voluntary purchase of flood insurance. These incentives included requiring flood insurance before the home owner could receive federal financial assistance or federally
regulated loans. See id. § 4012a(a), (b)(1).Without an "individual mandate," the flood insurance program has largely been a failure. . . . Nevertheless, despite the unpredictability of flooding, the inevitability that floods will strike flood plains, and the cost shifting inherent in uninsured property owners seeking disaster relief funds, Congress has never taken the obvious and expedient step of invoking the power the government now argues it has and forcing all property owners in flood plains to purchase insurance.
Contrast flood insurance with the very few instances of activity in which Congress has compelled Americans to engage solely as a consequence of being citizens living in the United States. Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census. These mandates are in the nature of duties owed to the government attendant to citizenship, and they contain clear foundations in the constitutional text. Additionally, all these mandates involve a citizen directly interacting with the government, whereas the individual mandate requires an individual to enter into a compulsory contract with a private company. In these respects, the individual mandate is a sharp departure from all prior exercises of federal power.
The draft is an excellent example of this sort of duty, particularly as it is one upon which the Supreme Court has spoken. In the Selective Draft Law Cases, the Supreme Court reviewed challenges to the draft instituted in 1917 upon the entry of the United States into World War I. 245 U.S. 366, 38 S. Ct. 159 (1918). The Court rejected these challenges on several grounds, primarily based on the long history of the draft both in the United States and other nations. Id. at 379–87, 38 S. Ct. at 162–64. But it also pointed to the relationship between citizens and government: "It may not be doubted that the very [c]onception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it." Id. at 378, 38 S. Ct. at 161.
It is striking by comparison how very different this economic mandate is from the draft. First, it does not represent the solution to a duty owed to the government as a condition of citizenship. Moreover, unlike the draft, it has no basis in the history of our nation, much less a long and storied one. Until Congress passed the Act, the power to regulate commerce had not included the authority to issue an economic mandate. Now Congress seeks not only the power to reach a new class of "activity"—financial decisions whose effects are felt some time in the future—but it wishes to do so through a heretofore untested power: an economic mandate.
Having established the unprecedented nature of the individual mandate and the lack of any Supreme Court case addressing this issue, we are left to apply some basic Commerce Clause principles derived largely from Wickard, Lopez, Morrison, and Raich.
Three Judges, Four Opinions
Yesterday, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Estate of Mark Parsons v. Palestinian Authority. The case is interesting in its own right, concerning whether the Palestinian Authority can be held liable for Mark Parsons death under the Anti-Terrorism Act of 1991, but so is the disposition. The three judges on the panel wrote four opinions. Judge Tatel wrote for the court, but also wrote a concurring opinion. Judges Henderson and Brown each wrote opinions concurring-in-part and dissenting-in-part as well.
For a taste of the case, here's how Judge Tatel's opinion for the court begins:
While providing security for a U.S. State Department convoy in the Gaza Strip, Mark Parsons was killed by a roadside bomb. Parsons's estate and his family sued the Palestinian Authority under the AntiTerrorism Act of 1991, alleging that the Authority had provided material support for and conspired with the terrorist or terrorists who detonated the bomb. Concluding that the Parsons family had produced insufficient evidence to create genuine disputes of material fact on these Anti-Terrorism Act claims, the district court granted summary judgment to the Palestinian Authority. Although we agree with the district court that the family's conspiracy claim theories are too speculative to survive summary judgment, we believe a reasonable juror could conclude that Palestinian Authority employees provided material support to the bomber. Accordingly, we affirm with respect to the conspiracy claim but reverse as to material support.
(Hat tip: How Appealing)
An Unusual (But Likely Constitutional) Speech Restriction
From BART, a San Francisco-area public transportation agency:
Organizers planning to disrupt BART service on August 11, 2011 stated they would use mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police. A civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions for BART customers, employees and demonstrators. BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform.
Cell phone service was not interrupted outside BART stations. In addition, numerous BART Police officers and other BART personnel with radios were present during the planned protest, and train intercoms and white courtesy telephones remained available for customers seeking assistance or reporting suspicious activity.
BART's primary purpose is to provide, safe, secure, efficient, reliable, and clean transportation services. BART accommodates expressive activities that are constitutionally protected by the First Amendment to the United States Constitution and the Liberty of Speech Clause of the California Constitution (expressive activity), and has made available certain areas of its property for expressive activity.
Paid areas of BART stations are reserved for ticketed passengers who are boarding, exiting or waiting for BART cars and trains, or for authorized BART personnel. No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.
I'm inclined to say that this is constitutional, because BART is government property that's not a "traditional public forum." (Likewise, I think it's constitutional for a university to block wireless reception in classrooms, in order to diminish distraction, something that some public universities do.)
The restriction is facially content-neutral, but the justification is related to the content of the speech — the government isn't just trying to prevent physical disruption caused by the noncommunicative effects of cell phones, as with the restrictions on cell phones on airplanes, but physical disruption caused by what people communicate to each other using cell phones — and I think that it should suffice to make it content-based. But on government property (outside traditional public fora such as sidewalks and parks), the government has a good deal of authority to impose content-based but viewpoint-neutral and reasonable restrictions. And the restriction here did seem to be both viewpoint-neutral and reasonable.
Still, it was an unusual restriction, which struck me as worth noting. Thanks to Ben Snyder for the pointer.
The 50th Anniversary of the Erection of the Berlin Wall
Today is the 50th anniversary of the erection of the Berlin Wall. In November 2009, I wrote a post on the 20th anniversary of the Wall's destruction. What I said then is also appropriate to today's less happy anniversary:
n several ways, the Wall and its collapse are fitting symbols of communism. They demonstrate several truths about that system that we would be wise not to lose sight of.
First and foremost, Cold War-era Berlin was the most visible demonstration of the superiority of capitalism and democracy over communism and dictatorship. Despite the fact that East Germany had one of the highest standards of living in the Soviet bloc, it had to build a wall to keep its people from fleeing to the capitalist West. By contrast, West Germans and other westerners were free to move to the communist world anytime they wanted. Yet only a tiny handful ever did so. Decisions to "vote with your feet" are often even better indicators of peoples' true preferences than ballot box voting, since foot voters have better incentives to become well-informed about the alternatives before them. Even more powerful evidence is the reality that many East Germans and others fled from communism even when doing so meant risking their lives.
Second, the Berlin Wall was an important symbol of the way in which communist governments violated the human right to freedom of movement, one of the most important attributes of a free society. If people are forcibly trapped under the rule of the government in whose territory they happen to be born, they are not truly free; rather, they are hostages of their rulers.
Finally, the sudden collapse of the Berlin Wall in 1989 vividly demonstrated the extent to which communist totalitarianism relied on coercion to maintain its rule. Some Western scholars and leftists contended that most Russians and Eastern Europeans actually supported communism or at least preferred it to the available alternatives. The events of 1989 gave the lie to this notion, though a few writers still defend it today.....
Despite all of the above, I am somewhat conflicted about the status of the Berlin Wall as the symbol of communist oppression in the popular imagination. My reservations have to do with the underappreciated fact that the Wall was actually one of communism's smaller crimes. Between 1961 and 1989, about 100 East Germans were killed trying to escape to the West through Wall. The Wall also trapped several million more Germans in a repressive totalitarian society. These are grave atrocities. But they pale in comparison to the millions slaughtered in gulags, deliberately created famines in the USSR, China, and Ethiopia, and mass executions of kulaks and "class enemies." The Berlin Wall wasn't even the worst communist atrocity in East Germany.....
It is important to remember the Berlin Wall and the lessons it teaches. But doing so is only one small part of the task of rectifying the longstanding neglect of communist crimes.
August 12, 2011
"Not Much Good Takes Place at Slumber Parties for High School Kids, and This Case Proves the Point"
So begins T.V. v. Smith-Green Community School Corp. (N.D. Ind. Aug. 10), which (1) holds that a high school violated plaintiffs' First Amendment rights when it suspended them from the volleyball team because they had posted a raunchy video of themselves on the Internet, and (2) holds that the school's code of conduct allowing suspensions for "act[ing] in a manner in school or out of school that brings discredit or dishonor upon yourself or your school" is unconstitutionally vague and overbroad. (Both holdings, I think, are correct, given the Court's precedents; I briefly explain my thinking at the end of the post.) Here are the relevant facts about the speech involved:
[D]uring the summer of 2009, T.V. and M.K. were both entering the 10th grade at Churubusco High School, a public high school of approximately 400 students. Both T.V. and M.K. were members of the high school's volleyball team, an extracurricular activity, and M.K. was also a member of the cheerleading squad, also an extracurricular activity, as well as the show choir, which is a cocurricular activity. [Obligatory Glee reference.-EV] Cocurricular activities provide for academic credit but also involve activities that take place outside the normal school day.
Try-outs for the volleyball team for the coming year would occur in July. A couple of weeks prior to the tryouts, T.V., M.K. and a number of their friends had sleepovers at M.K.'s house. Prior to the first sleepover, the girls bought phallic-shaped rainbow colored lollipops. During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption "Wanna suck on my cock." In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. is pretending to suck on it.
During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie and the other girls in pajamas. One of these pictures shows M.K. standing talking on the phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident as if protruding from her crotch and pointing between M.K.'s legs. In another, T.V. is shown bent over with M.K. poking the trident between her buttocks. A third picture shows T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture, M.K. poses with money stuck into her lingerie — stripper-style.
T.V. posted most of the pictures on her MySpace or Facebook accounts, where they were accessible to persons she had granted "Friend" status. Some of the photos involving the lollipops were also posted on Photo Bucket, where a password is necessary for viewing. None of the images identify the girls as students at Churubusco High School. Neither T.V. nor M.K. ever brought the images to school either in digital or any other format. In their depositions, both T.V. and M.K. characterized what they did as "just joking around" and disclaimed that the images conveyed any scientific, literary or artistic value or message, but testified that the photos were taken and were shared on the internet because the girls thought what they had done was funny and "wanted to share with [their] friends how funny it was."
The school got wind of this, and suspended the girls "from extracurricular and cocurricular activities for a calendar year," though the punishment was later reduced to a six-game suspension for T.V., and a suspension from "five games and a show choir performance" for M.K. The girls sued, claiming the suspension violated the First Amendment. Here's what the court held:
1. The video and the conduct that it depicted was presumptively constitutionally protected, because the conduct was a performance and the video a record of the performance. "The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images. In fact, the humor (such as it is) derives from the fact that the conduct, featuring toy props and 'joke' lollipops, is juvenile and silly and provocative. No message of lofty social or political importance was conveyed, but none is required.... Ridiculousness and inappropriateness are often the very foundation of humor. The provocative context of these young girls horsing around with objects representing sex organs was intended to contribute to the humorous effect in the minds of the intended teenage audience.... [T]he Supreme Court has said that 'a narrow, succinctly articulable message is not a condition of constitutional protection.' The sexual tableau created by the plaintiffs was obviously staged with the intention to entertain themselves (and the later audience of their peers who viewed the pictures) with what they considered silly lighthearted humor."
2. The material didn't fit within the First Amendment exception for obscenity, because it didn't depict sexual conduct specified by state law (such as "an act involving ... a sex organ of one person and the mouth or anus of another person" or "the penetration of the sex organ or anus of a person by an object"). Nor did it fit within the First Amendment exception for child pornography, because it didn't depict an actual sex act or even a realistic impression of an actual sex act.
3. The Supreme Court's decision in Bethel School Dist. No. 403 v. Fraser, which held that the state acting as K-12 educator has extra authority to discipline students for vulgar speech, even speech that's protected against criminal punishment or civil liability, doesn't apply to off-campus speech.
4. The Supreme Court's decision in Tinker v. Des Moines Indep. Cmty. School Dist., which held that the state acting as K-12 educator has extra authority to discipline students for speech that is likely to substantially disrupt the activities of the school, doesn't apply here, because there wasn't enough showing of such substantial disruption. (The court assumed without deciding that Tinker applied to off-campus speech that had effects on-campus, because it held that Tinker wouldn't justify the school's actions even if it did apply to off-campus speech.) Here's the court's analysis:
Tinker says, ["]in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.... In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.["]
Defendants' showing of actual disruption is extremely weak. Petty disagreements among players on a team — or participants in clubs for that matter — is utterly routine.... [S]chool officials cannot point to any students creating or experiencing actual disruption during any school activity. Instead, the officials merely responded to the complaints of parents (two in all), and the complaints do not appear to have been confirmed with any students or coaches. As was true of the armbands in Tinker, the photos in this case could be said, at best, to have "caused discussion outside of the classrooms, but no interference with work and no disorder." Certainly no evidence has been presented of the kind of serious issues enumerated recently by the Seventh Circuit as indicative of substantial disruption: "[s]uch facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school."
In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds. This can't be what the Supreme Court had in mind when it enunciated the "substantial disruption" standard in Tinker. To find otherwise would be to read the word "substantial" out of "substantial disruption." See e.g. J.C., 711 F.Supp.2d at 1119 (for Tinker "to have any reasonable limits, the word 'substantial' must equate to something more than the ordinary personality conflicts among middle school students that may leave one student feeling hurt or insecure"); Scoville v. Bd. of Educ. of Joliet Township, 425 F.2d 10, 14 (7th Cir.1970) (protected speech that "undoubtedly offended and displeased the dean" but is not shown to have substantially disrupted or materially interfered with school activities cannot be punished).
As for the forecast of substantial disruption from the "publication" of the photographs on the internet, the school defendants assert rather summarily that the Tinker standard is met. But they offer little, either in evidence or argument, as to the nature of the feared disruption.... This thin record does not support a determination as a matter of law that the school officials made a reasonable forecast of substantial disruption.
5. The school's actions violate the First Amendment even though they only involved suspension from noncurricular activities, and not from school generally. "The constitutional right at issue is freedom of expression, not that of participation in extracurricular activities. That there is no constitutional right to participate in athletics or other extracurricular activities may be pertinent to an analysis of other sorts of constitutional claims, such as a Due Process claim, a Privileges and Immunities claim, or an Equal Protection claim, but as Tinker itself notes, not to a freedom of expression claim."
6. The school's code of conduct, "If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year," is unconstitutionally overbroad, as applied to speech. The code "may ... reach a [broad] variety of speech or expressive conduct that would be protected by the First Amendment. Examples could include marching for or against certain political or social causes, or publicly speaking out on topics school authorities deem taboo. And much of such speech or expressive conduct, as in this case, would not meet Tinker's substantial disruption standard so as to render it subject to school discipline."
7. The code of conduct is also unconstitutionally vague, as applied to speech, even though the vagueness doctrine doesn't apply as stringently to the government as K-12 educator as it does when the government is acting as sovereign (for instance, imposing criminal liability for speech). "The notion of good character inherent in [the terms 'discredit' and 'dishonor'] introduces a nebulous degree of value judgment. Issues of character and values involve such a broad spectrum of reasonable interpretation (but also strongly-held disagreement) as to be insufficiently conclusive for a disciplinary standard. In other words, the meaning of the terms may be readily understood by persons of ordinary intelligence, but ready agreement about all the conduct and circumstances they apply to cannot reasonably be expected."
8. "To sum up: no reasonable jury could conclude that the photos of [T.V.] and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption. And while the crass foolishness that is the subject of the protected speech in this case makes one long for important substantive expressions like the black armbands of Tinker, such a distinction between the worthwhile and the unworthy is exactly what the First Amendment does not permit. With all respect to the important and valuable function of public school authorities, and the considerable deference to their judgment that is so often due, '[i]t would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.' Layshock v. Hermitage School District, –– F.3d ––, 2011 WL 2305970, *9 (3rd Cir. June 13, 2011)."
9. My conclusion: I think this ruling is correct, given Tinker and Fraser. What children did as home is subject to discipline by those with authority of the home — the parents — if those authorities think that the behavior is improper. But government-run schools don't have, and shouldn't have, authority to control students' speech 24/7, even when the students are outside school. And while it's possible that they may discipline students for such speech when it truly substantially disrupts behavior inside the school, there has to be a pretty high bar for that, a bar that the school's arguments didn't clear.
Discussion of the Mohammed Cartoons Not "Speech Involv[ing] Matters of Public Interest or Concern"?
Today's Kentucky Court of Appeals decision in Mendez v. Univ. of Kentucky Bd. of Trustees contained an odd bit of analysis that I thought I'd mention. Here's the fact pattern:
The precipitating event leading up to the cessation of [Fullmer] Mendez's employment at the College of Health Sciences occurred on March 27, 2006. One morning he was assigned to work on the computer of Dr. Susan Effgen, a professor at the College. She had experienced repeated problems with her computer. After looking at the computer, Mendez decided that he could not fix it until the next day. He informed her and went to lunch. When he returned from lunch, [Bambang] Sutardjo, as his supervisor, asked about the repair of the computer. After Mendez told him that the computer would not be fixed until the next day, Sutardjo told him to finish the work on the computer now because Mendez did not have the authority to determine turnaround time. Mendez replied that he was not trying to create new policy. Then, Sutardjo said he did not want Mendez to work in the department any longer.
But Mendez proffers a different reason for his dismissal. He maintains that the reason for his termination was not based on his failure to work on Effgen's computer in a timely fashion, but rather, his termination resulted from a disagreement with Sutardjo, which Mendez believes was the cause of his termination. The parties' religious backgrounds are as follows: Mendez was born and raised Catholic, and Sutardjo was a member of the Islamic religion. Mendez knew Sutardjo's religion because at one time he had been invited to Sutardjo's home for dinner at the conclusion of Ramadan. Sutardjo intimated that while he was not sure of Mendez's religious beliefs, he thought that he was Christian or Catholic.
According to Mendez's testimony, although he does not cite to the record in providing these details, a few weeks before his assignment ended, Sutardjo and Dr. Maria Boosalis, the Director of the Department of Clinical Nutrition, were having a discussion concerning the publication of cartoons about the prophet Mohammed in the Danish press, and the protests in Europe that occurred after the publication of the cartoons. Mendez claims that Sutardjo asked his opinion about it. Mendez says that he responded that the Danish press was free to publish what they wished. Mendez then describes Sutardjo as being upset during the conversation, but he acknowledged that no mention of either party's religion was made, nor did either party attack the other during the conversation. After the discussion, again without citation to the record, Mendez stated that the relationship between them soured, and their interactions were only about business. Yet, Sutardjo did not increase Mendez's workload, although he required Mendez to complete his work assignments within a strict time period. Mendez, however, did not find the requirement to be unreasonable.
Now there's obviously a factual dispute as to the motivation for Mendez's firing, and it may well be that he was fired for reasons quite unrelated to the discussion of the cartoons. (Recall the following cautionary joke sometimes said among us Jews: A Jew goes to an interview for a job as a radio announcer. Later in the day, a friend asks whether he got the job; the interviewee shakes his head. "Why not?," the friend asks. "An-an-an-ti-se-se-se-mitism," the man responds.) And it's also possible that Mendez's claims, brought not under 42 U.S.C. § 1983 — which is generally used for claims that the plaintiff was fired because of his First-Amendment-protected speech — but under Kentucky's tort of wrongful discharge in violation of public policy, would be legal losers. The court suggests this might be so, though its analysis is not entirely clear.
But what puzzles me is this passage:
["]In order to state a retaliation claim under the First Amendment ... a public employee plaintiff must demonstrate that the speech involved matters of public interest or concern. Second, the plaintiff must show that her interest in addressing these matters of public concern outweighs the interest of her employer
'in promoting the efficiency of the public services it performs through its employees.'"Mendez has not provided any support that the conversation, the nature of which is disputed, was constitutionally protected, or that it caused an adverse employment action, or even that it was a substantial and motivating factor in his termination. This factor is bolstered even more by the fact that he has not shown that the conversation in question concerned matters of public interest or that the interest in addressing these matters outweighs the interest of his employer in providing public service through its employees....
It seems to me quite clear that a discussion of the Mohammed cartoons, and the protests surrounding them, "concern[s] matters of public interest" and is thus potentially protected by the First Amendment against employer retaliation. (Recall that speech on matters of purely private concern is generally protected against the government as sovereign, but not against the government as employer.) By way of comparison, see Rankin v. McPherson (1987), which held that an employee's saying to a coworker, right after hearing that President Reagan had been shot, that "If they go for him again, I hope they get him," is speech on a matter of public concern. To be presumptively protected against government employer retaliation, speech needn't be said to the public at large, nor need it be expressly political in nature. Discussions of public issues with coworkers qualify for presumptive constitutional protection (unless they're said pursuant to the coworkers' duties, which this wasn't), though this presumption could be rebutted under the "Pickering balancing test" if the tendency of the speech to disrupt the workplace exceeds its constitutional value.
So I think the court of appeals was wrong to express doubt on this score. Again, perhaps Mendez should lose at trial on his claim, or perhaps there's some other legal reason why he shouldn't even get to trial. But the claim that Mendez "has not shown that the conversation in question concerned matters of public interest" strikes me as unsound — the articulation of the conversation, as Mendez reports it to be, strikes me as sufficient on that score.
Note that I don't read the court's statement that "the nature of [the conversation] is disputed" as meaning that Mendez loses because it's not clear what, as a factual matter, was said. At this stage of the case — where the court is reviewing the trial court's grant of summary judgment to the university — the court needs to assume that the facts as claimed by Mendez are accurate.
The First Amendment and the Government as Employer
I'll be posting an item shortly on a particular dispute involving the First Amendment and the government as employer, and I thought it would be helpful to articulate the current legal rule on the subject. Here it is, quoted from my First Amendment textbook (and, yes, I know the legal rule is pretty vague):
Rule: The government may not fire an employee based on the employee's speech if
1. the speech is on a matter of public concern, and
2. the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and
3. the damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).
• Thus, if the speech is on a matter of private concern, or the speech is said as part of the employee's duties, the government can do what it pleases.
• Likewise, if the government prevails on the Pickering balance, it can do what it pleases.
Related rule: The government generally may not discriminate based in employment or contracting based on the employee's membership in an expressive association. Elrod v. Burns, 427 U.S. 347 (1976) (firing); Branti v. Finkel, 445 U.S. 507 (1980) (firing); Rutan v. Republican Party, 497 U.S. 62 (1990) (applying Elrod and Branti to hiring); O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (applying the government employee cases to government contracting decisions).
• But the interest in employees' political loyalty may justify such discrimination when "party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti.
More detail:
1. When is speech treated as being on a matter of public concern?
a. This is supposed to be determined "by the content, form, and context of a given statement."
b. Even speech that refers to things that might interest the public• for instance, maladministration of a government office• may be found not to be "of public concern." Connick.
c. Footnote 5 in Connick says that "The question of whether expression is of a kind that is of legitimate concern to the public is also the standard in ... a common-law action for invasion of privacy." See also City of San Diego v. Roe, 543 U.S. 77 (2004) (repeating this analogy). Query, though, whether this is right: If a local newspaper had simply published Myers' statements about her supervisors (statements that the Court found to be not of public concern), and even if the statements revealed personal facts about the supervisors (in the course of criticizing the supervisors' trustworthiness), could the newspaper have been held liable for invasion of privacy?
d. Speech that has been held not to be on a matter of public concern:
• Speech aimed at gathering ammunition for controversy with superiors, Connick.
• "Employee grievance[s] concerning internal office policy," id.
• Pornographic videos sold on the Web by a police officer, at least when the videos and the Web site "[were] linked to [the employee's] official status as a police officer[] and [were] designed to exploit his employer's image." City of San Diego v. Roe. (The videos starred Roe wearing a generic police uniform, the site identified Roe as a police officer, and the site sold the San Diego police department's official uniforms.)
e. Speech that has been held to be on a matter of public concern:
• Discussing with coworkers unlawful pressure to work in political campaigns, id.
• Complaining to one's boss about alleged discrimination by the employer, when this is "not tied to a personal employment dispute," Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979).
• Writing a letter to a newspaper about the allocation of government agency funds among various departments, Pickering v. Board of Ed., 391 U.S. 563 (1968).
• Testifying before the legislature about whether a college should be elevated to four-year status, Perry v. Sindermann, 408 U.S. 593 (1972).
• Publicizing a principal's memorandum about teacher dress and appearance, Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977).
• Saying to a coworker friend that one wishes the President had been assassinated, Rankin v. McPherson (1987) (p. 575).
• United States v. National Treasury Employees Union, 513 U.S. 454, 466 (1995), suggests that speech said "to a public audience, ... outside the workplace, and involv[ing] content largely unrelated to [the speaker's] government employment" should generally be treated as being on a matter of public concern.
f. Communication to the public at large is more likely to be seen as speech on matters of public concern than communication to one's coworkers. However, communication even to one person might be protected if the content is of sufficiently public concern, Givhan.
g. Connick suggested that the speaker's motive might be central to the public concern inquiry; consider its stress that Myers "did not seek to inform the public," and that "the focus of Myers' questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors." Some lower courts since Connick have at times focused largely on the speaker's motive, though others have not.
2. How are courts to do the obviously mushy Pickering balance?.
a. A court may consider the degree to which speech
• interferes with close working relationships (Connick),
• disrupts the office (id.),
• takes up work time (id.),
• threatens employer's authority (id.),
• or has the potential to do the above ("we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action," id.),
• or violates an explicit work rule (id. at n.14).
b. The more the speech is on a matter of public concern, the stronger the required showing of interference.
c. "Employee speech which transpires entirely on the employee's own time, and in non-work areas of the office ... might lead to a different conclusion" (id. at n.13).
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