Wake Forest Law Review
22Feb

When the Free Speech, Free Exercise, and Establishment Clauses Collide: Setting the Stage for Kennedy v. Bremerton School District and Its Potential Impact on Public Employees’ First Amendment Rights

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By Jonathon Beatty

What happens when a public-school employee’s free speech and free exercise rights run contrary to the Establishment Clause of the First Amendment?[1]  The Supreme Court will answer that question in Kennedy v. Bremerton School District[2] and shed light on the intersection of the Free Speech, Free Exercise, and Establishment Clauses.[3]  Specifically, the Court granted certiorari on two questions: (1) “[w]hether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection”; and (2) “whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.”[4]

Bremerton School District (“BSD”) employed Kennedy as a football coach.[5]  A practicing Christian, he felt an obligation to “give thanks through prayer, at the end of each game.”[6]  He would kneel on the 50-yard line, where spectators could observe, and say a prayer alone.[7]  Over time, students began to join him, eventually growing to “include the majority of the team.”[8]  Although he never explicitly or implicitly required participation, BSD ordered Kennedy to stop for fear that, as a government employee, he was violating the Establishment Clause,[9] which requires government neutrality toward religion.[10]  This culminated in a recommendation against his rehiring due to his “fail[ure] to follow district policy.”[11]

Subsequently, Kennedy filed suit, arguing that BSD had violated his free speech and free exercise rights.[12]  The district court rejected his claims, holding that “BSD’s actions were justified due to the risk of an Establishment Clause violation.”[13]  The Ninth Circuit affirmed, agreeing “that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.”[14]

The free speech right of public employees is a complex legal issue.  As many questions in the law do, it requires striking a balance, this time between the right of the employee to be free from government censorship and the right of the government to ensure its employees act consistent with their duties, including constitutional requirements.  The Supreme Court has made clear, for example, that “[t]he problem . . . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[15]  Put differently, their employment necessarily curtails their First Amendment rights in order for them to do their job correctly.  It involves, like many aspects of life, a tradeoff. But striking the right balance is a difficult task.

Start with the free speech rights of public employees.  It is settled law that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”[16]  State employees have free speech rights, and the use of those rights may not form the basis for which he or she is terminated or otherwise denied employment.[17]  In Pickering v. Board of Education,[18] for example, the Court held unconstitutional the termination of a teacher who overtly criticized the school board for its allocation of funding.[19]  The basis for the teacher’s dismissal ran afoul of democratic norms  epitomizing self-government for which “free and open debate is vital.”[20]  Teachers do not forfeit their rights “at the schoolhouse gate.”[21]

The extent of an employee’s “interest in freedom of expression,” however, is far from absolute and depends on the context in which the right was exercised.  In Garcetti v. Ceballos, for instance, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[22]  As any private employer could, a government employer can mandate or prohibit certain expression within reason.[23]

The idea is that the required or forbidden expression is the product of the employment, not of the employee’s private life and thus the liberties that attach.[24]  As the Court puts it, “It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”[25]  The crucial question is whether the public employee is acting as a citizen or in his or her official capacity.  If the former, the Court has “unequivocally rejected” the notion “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens.”[26]  And if the latter, employers of all kinds may control the speech of “an employee in his or her professional capacity,” because “[o]fficial communications have official consequences” that impact “the employer’s mission.”[27]

Moreover, the free exercise rights of public employees are equally complex and involve a similar tradeoff between citizen liberty and employer interest.  This time, however, the conflict lies directly in the First Amendment, which prohibits the government’s “respecting an establishment of religion” while simultaneously guaranteeing to citizens “the free exercise thereof.”[28]  The question is at which point a government employee’s “free exercise” constitutes the government’s “respecting an establishment of religion.”

The Court has held “that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”[29]  Religion may not excuse citizens from complying with a neutral law that applies generally to everyone.[30]  Otherwise, “professed doctrines of religious belief [would become] superior to the law of the land . . . and . . . permit every citizen to become a law unto himself.”[31]  The Free Exercise Clause, therefore, applies to a non-neutral law that targets expression because it is religious, not simply because the expression falls within the law’s purview.[32]

Even when the government targets religious expression because it is religious, a Free Exercise claim does not necessarily prevail.  The Court has held that “a state interest in avoiding an Establishment Clause violation ‘may be characterized as compelling,’ and therefore may justify content-based discrimination.”[33]  As BSD argued in Kennedy, allowing Kennedy’s prayers to continue as is would constitute government action sufficient to violate the Establishment Clause and thus justify the prohibition on Kennedy’s conduct.[34]  Nonetheless, the Court has underscored on numerous occasions that the mere presence of religious conduct on public-school property is not under all circumstances sufficient to violate the Establishment Clause.[35]

Therefore, the stage is set for the Court.  It will decide (1) whether the speech falls within Kennedy’s “professional capacity” and thus lacks First Amendment protection; and (2) whether, assuming it does not, BSD nevertheless has satisfied strict scrutiny in avoiding an Establishment Clause violation by means “narrowly tailored to advance that [compelling] interest.”[36]  Perhaps Kennedy was acting as a citizen.  And if he was, perhaps this is one of those circumstances where there was no state action sufficient to constitute an Establishment Clause violation.  The Court will soon settle the issue.

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”).

[2] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021), cert. granted, 142 S. Ct. 857 (2022).

[3] U.S. Const. amend. I.

[4] Kennedy v. Bremerton School District, SCOTUSblog, https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/ (last visited Feb. 22, 2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 857 (2022) (granting certiorari).

[5] Kennedy, 991 F.3d at 1010.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 1011.

[10] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (“[W]e have held that ‘a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.’” (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995))) (alteration in original).

[11] Kennedy, 991 F.3d at 1014.

[12] Id.

[13] Id.

[14] Id. at 1022–23.

[15] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[16] Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)).

[17] Id.

[18] 391 U.S. 563.

[19] Id. at 566–67.

[20] Pickering, 391 U.S. at 571–72; see Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“For speech concerning public affairs is more than self-expression; it is the essence of self-government.”).

[21] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[22] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[23] Id. at 418 (“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”).

[24] Id. at 421–22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”).

[25] Id. at 422.

[26] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[27] Garcetti, 547 U.S. at 422–23.

[28] U.S. Const. amend. I.

[29] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Emp. Div. v. Smith, 494 U.S. 872 (1990)).

[30] See Smith, 494 U.S at 878–79 (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”).

[31] Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166–67 (1879)).

[32] Church of Lukumi Babalu Aye, 508 U.S. at 532 (“[T]he protections of the Free Exercise Clause pertain if the law at issue . . . regulates . . . conduct because it is undertaken for religious reasons.”).

[33] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)).

[34] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1009 (2021).

[35] See Good News Club, 533 U.S. at 115 (“[W]e have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises . . . .”).

[36] Church of Lukumi Babalu Aye, 508 U.S. at 531–32.

Post image by Phil Roeder on Flickr

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18Jan

Michelle Carter and Inyoung You: Massachusetts Paving the Way for Criminal Liability in Encouraging Suicide

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By Morgan Kleinhandler

There is no doubt that the advance of modern technology has allowed for an increase in the interconnected nature of American society.[1]  Specifically, the popularity of smartphones has allowed for a new level of immediate interconnectedness that was previously impossible. [2] With this rise in technology has come a new form of human interaction that can lead to dangerous and irreparable consequences[3]—for example, encouraging the suicide of another through text messaging.  A new legal precedent has been set in Massachusetts to deter this type of encouragement, making it a criminally punishable offense to encourage suicide through texting.[4]  In many states, it is illegal to assist in the suicide of another, and being found guilty of doing so will result in criminal liability.[5]  As technology has evolved, the state of Massachusetts has made national headlines for including the encouragement of suicide through text message as an illegal and punishable form of assisting in a suicide.[6]

In 2017, Michelle Carter was found guilty in Massachusetts state court for encouraging her boyfriend, Conrad Roy, to commit suicide through thousands of text messages.[7]  Similarly, this past month, on December 23, 2021, Inyoung You pleaded guilty in Massachusetts to assisting in the suicide of her boyfriend, Alexander Urtula, through about 47,000 text messages.[8]  Both cases have grabbed national attention[9] and have opened Americans’ eyes to the way that communication through technology can lead to dire consequences.

The Supreme Court has established that the right to suicide is not a fundamental or liberty interest protected by the Constitution, and governmental impairment to the right to suicide will receive the lowest level of scrutiny from the courts.[10]  However, the First Amendment establishes the right to free speech for all citizens,[11] which the Supreme Court has long interpreted.[12]  The Supreme Court has held that the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,”[13] establishes a “fundamental personal right[]”[14] to free speech which can only be impaired by the government if such impairment survives strict scrutiny.[15]  Because the right to suicide is not constitutionally protected and receives minimal scrutiny[16] whereas government impairment on freedom of speech receives the highest level,[17] some courts have held that encouraging another’s suicide will be punishable only if strict scrutiny for such punishment is met.[18]  For these reasons, the Minnesota Supreme Court held that verbal encouragement to another person before that person’s suicide is constitutionally protected speech that could not be criminally punishable because it does not survive strict scrutiny.[19]

The State of Massachusetts interpreted the situation differently, however, finding that when speech constitutes the crime of involuntary manslaughter, First Amendment rights are not affected.[20]  In the case of Michelle Carter, the court clarified that it was not simply Carter’s words that were being punished; it was “reckless or wanton words causing death” that constituted a crime.[21]  The court held that even though Carter committed the crime of involuntary manslaughter using just words, she could not “escape liability” through First Amendment protection.[22]  Thus, because Carter’s illegal conduct was being punished, and not Carter’s speech alone, her First Amendment right to free speech was not violated.[23] 

Massachusetts also concluded restriction of verbal encouragement of suicide could pass strict scrutiny even if the First Amendment applied because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.”[24]  On appeal, the court affirmed that the state had a justifiable reason to restrict Carter’s speech, holding that the state has a “compelling interest in preserving life.”[25]  Through Massachusetts’s reasoning, because states have a compelling interest in deterring citizens from committing suicide, especially with the encouragement of others leading to the suicide,[26] the constitutional protections provided by the First Amendment may be overcome in cases like Michelle Carter and Inyoung You.

The Massachusetts court in Carter did point out, however, that the elements of involuntary manslaughter charges must be met on a case-by-case basis to rightfully prove that charge in the case of encouraging suicide through text message.[27]  In Massachusetts specifically, in order to prove involuntary manslaughter, the state must prove that the defendant caused the death of another through wanton or reckless behavior or failure to act.[28]  These elements align with many other states’ laws on involuntary manslaughter.[29] In Carter’s case, the court found that her text messages were enough to prove she committed involuntary manslaughter.[30]  The court reasoned that because Carter had such a close relationship with her boyfriend and because her text messages were so supportive and temporally close to Roy’s suicide that they were a probable cause of his suicide.[31]  Carter’s case was appealed to the United States Supreme Court, but the Court denied the petition for writ of certiorari,[32] suggesting that the Court may agree with Massachusetts’s analysis on the matter.

Michelle Carter’s sentence was the first time an American has been punished for encouraging the suicide of another using only text messaging.[33]  A few years later, Inyoung You’s sentencing following a guilty plea for a near-identical situation shows a trend in punishing text messages which explicitly encourage the suicide of another.[34]  Although both Carter and You’s cases occurred in Massachusetts, this trend of punishing those who actively encourage and contribute to the suicide of another using technological communication could very well become a trend throughout the states.

[1] Ray Zinn, The Interconnectedness of Things, Forbes (Dec. 15, 2017, 9:00 AM), https://www.forbes.com/sites/forbestechcouncil/2017/12/15/the-interconnectedness-of-things/?sh=18e1245865d1.

[2] Christian Jarrett, How Are Smartphones Affecting Our Relationships?, World Econ. Forum (Nov. 3, 2015), https://www.weforum.org/agenda/2015/11/how-are-smart-phones-affecting-our-relationships/.

[3] See generally Melissa Locker, Two Young Women Have Been Accused of Persuading Their Boyfriends to Kill Themselves—but Why?, Health (Jan. 24, 2020), https://www.health.com/mind-body/inyoung-you-case-commit-suicide (discussing how texting can lead to more detached feelings and judgments).

[4] Commonwealth v. Carter, 115 N.E.3d 559 (2019), cert. denied 140 S. Ct. 910 (2020).

[5] Sierra Taylor, Comment, Kill Me Through the Phone: The Legality of Encouraging Suicide in an Increasingly Digital World, 2019 BYU L. Rev. 613, 627 (2020).

[6] Locker, supra note 3.

[7] Carter, 115 N.E.3d at 561–62, 574.

[8] Marisa Sarnoff, Inyoung You Pleads Guilty in Boston Manslaughter-by-text Case, Can’t Profit from Story, Bos. Herald, https://www.bostonherald.com/2021/12/23/inyoung-you-pleads-guilty-in-boston-manslaughter-by-text-case-cant-profit-from-story/ (Dec. 23, 2021, 8:11 PM); Locker, supra note 3.

[9] Sarnoff, supra note 8; Locker, supra note 3.

[10] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] U.S. Const. amend. I.

[12] See, e.g., Gitlow v. New York, 268 U.S. 652, 666–69 (1925); Cohen v. California, 403 U.S. 15, 23–26 (1971); Reno v. Am. C.L. Union, 521 U.S. 844, 870–74 (1997).

[13] U.S. Const. amend. I.

[14] Gitlow, 268 U.S. at 666.

[15] Id.

[16] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[17] Gitlow, 268 U.S. at 666.

[18] State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014); cf. Commonwealth v. Carter, 115 N.E.3d 559, 572 (Mass. 2019), cert. denied 140 S. Ct. 910 (2020).

[19] Melchert-Dinkel, 844 N.W.2d at 24.

[20] Carter, 115 N.E.3d at 572.

[21] Id.

[22] Id. at 570.

[23] Id. at 571.

[24] Commonwealth v. Carter, 52 N.E.3d 1054, 1064 n.17 (Mass. 2016), aff’d, Carter, 115 N.E.3d 559.

[25] Carter, 115 N.E.3d at 572.

[26] Id.

[27] Carter, 52 N.E.3d at 1063.

[28] Carter, 115 N.E.3d at 569.

[29] See 40 C.J.S. Homicide § 127 (2021) (describing broad elements of involuntary manslaughter statutes).

[30] Id.at 568.

[31] Id.

[32] Carter v. Massachusetts, 140 S. Ct. 910 (2020).

[33] Locker, supra note 3.

[34] Id.

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14Oct

Constitutional Cussing

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By: Joseph C. Johnson

On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1]  Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2]  Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3]  However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4]  On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment.  So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?

In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5]  There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6]  He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7]  In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8]  The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9]  This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]

To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11]  Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12]  Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13]  Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14]  This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15]  The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16]  This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17]  The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18] 

The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19]  On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20]  As such, a rule regarding public displays of expletives is further illuminated.  So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.

[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).

[2] Id. at *4, *19–21.

[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).

[4] Id. at 26.

[5] Id. at 19–21.

[6] Id. at 16.

[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).

[8] Id. at 20.

[9] Id. at 26. 

[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM),  https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.

[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).

[12] Id. at *2.  See Fla. Stat. § 847.011.

[13] Webb v. English, 2021 U.S. Dist.  LEXIS 181927, at *3.

[14] Id. at *4.

[15] Id. at *14–21.

[16] Id. at *18.

[17] Id. at *19–22.

[18] Id. at *18–26.

[19] Id. at *26.

[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).

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27Sep

Shedding Their Rights at the Schoolhouse Gate: How a North Carolina Cheer Team is Renewing a Decades-Old Debate

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By Kyle Brady

Known for clever cheers and creative school spirit, high school cheerleaders rarely garner national attention, spark protests, or tap into the highly polarized political fabric of our country. One North Carolina squad, however, managed to accomplish this incredible feat with one photo. What was so scandalous and controversial about this photo? The North Stanly County High School cheer team was pictured posing with a flag that read: “Trump 2020 Make America Great Again.”[1]

Putting aside the modern reality that student participation in the political process can cause such a reaction, the school district faced a PR nightmare after the photo was posted online forcing it to toe the line between respecting student speech and enforcing school policy.[2] The day after the photo surfaced on Facebook, the school released a statement claiming that the photo “was not . . . planned or endorsed by the school or its staff” and that “[t]he picture was taken prior to the event starting.”[3] Nevertheless, the North Carolina High School Athletic Association (NCHSAA) placed the cheer team on probation for violating a district policy prohibiting the distribution of political campaign materials at school events.[4] The probation prompted a group of citizens to organize a protest, and elicited a response from U.S. Congressman Rich Hudson (R-NC) who wrote the NCHSAA to voice his discontent over students being punished for “exercising their First Amendment right to free speech.”[5] North Stanly High School even cancelled its next home game due to unspecified student safety concerns.[6]

In a time where the spark of our polarized politics so often meets the jet fuel of social media addiction, a review of First Amendment jurisprudence as it applies to public schools may be in order. First Amendment issues in schools often emerge in times of increased attention to hyper-polarized issues,[7] so naturally this issue has reemerged in the age of Trump. Unsurprisingly, there have been other controversial topics in our Nation’s history that have led to student protests in our schools. In fact, students’ First Amendment rights have been at issue for several decades.

Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969)

In December of 1965, three students decided to wear black armbands to school to protest U.S. involvement in the Vietnam War.[8] A few days before the students participated in the demonstration, administrators discovered their plan and adopted a policy to suspend any student who refused to remove their armband after being asked.[9] The students wore the armbands anyways, did not remove them when asked, and were suspended from school.[10] Eventually, the students sued. The result? Justice Fortas and the Supreme Court authored a landmark opinion addressing the question of student symbolic speech.[11]

The Court held that “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.”[12] It reasoned that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[13] In subsequent cases, lower courts have used Tinker’s language to bar actual or potentially disruptive student speech from the classroom.[14] Such an analysis seems simple enough, but as time progressed, the Supreme Court added several exceptions to the Tinker doctrine to give schools more control over speech.[15]

Bethel Sch. Dist. No. 403 v. Fraser (1986)

The Supreme Court’s first deviation from the Tinker doctrine came in Fraser. In Fraser, a student was suspended after delivering a sexually charged speech supporting a candidate for student government at a school gathering.[16] The student sued the school under the First Amendment. The Court limited its ruling in Tinker by allowing schools to regulate “offensively lewd and indecent speech.”[17] It held that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct. . . .” Lower courts have struggled to apply this rule consistently.[18] Some courts find its language to apply narrowly to sexually charged speech, while others take the opposite approach and apply the rule broadly.

However the rule is applied, display of a flag supporting the President reelection is not “offensively lewd and indecent speech” because the Fraser court recognized a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.”[19] This brings us to the next exception the Supreme Court adopted.

Hazelwood Sch. Dist. v. Kuhlmeier (1988)

In Hazelwood, student members of a student-run newspaper brought suit after the school deleted two pages exploring student struggles with the issues of pregnancy and divorce from the paper.[20] The school disapproved of the articles because they would potentially allow affected students to be identified and the school thought the topics were inappropriate for some of the younger students.[21] The Court differentiated its decision from Tinker by exploring “whether the First Amendment requires a school affirmatively to promote particular student speech” rather than “whether the First Amendment requires a school to tolerate particular student speech.”[22] The Court found that schools are entitled to greater control over “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”[23] Additionally, the Court ruled that “[a] school must also retain the authority to refuse . . . to associate the school with any position other than neutrality on matters of political controversy.”[24] The Court reasoned that such control is necessary so that schools may fulfill their duties to the students.[25] The Court employed similar reasoning to create the next, and final, exception to the Tinker doctrine 19 years later.

Morse v. Frederick (2007)

In Morse, a school principal permitted students to watch the 2002 Winter Olympic Torch Relay when it passed by a road in front of the high school.[26] During the event, a student was suspended for unfurling a large banner that read “BONG HiTS 4 JESUS.”[27] The Court held that a school may restrict student speech at a school event that is reasonably viewed as promoting illegal drug use.[28] It reasoned that because of the seriousness of the issue of drug abuse, the government has a compelling interest to regulate its promotion within schools.[29] While such a bright line rule is refreshing in First Amendment jurisprudence, the Court did little to clear up the ambiguities and confusion left in the wake of its former opinions. In fact, the Court refused to extend Fraser “too far” and claimed that “[t]he concern here is not that [the student]’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.”[30]

  • Considering these cases, how would the current situation play out?

Since the cheerleaders were not promoting the use of illegal drugs and a flag supporting the President of the United States is not “offensively lewd and indecent speech,” Morse and Fraser will not come into play. That leaves Tinker, which broadly protects political speech as long as it is not disruptive, and Hazelwood, which expressly limits speech which can reasonably be interpreted as being sponsored by the school.

Clearly, Hazelwood lends the most support for NCHSAA’s decision to place the North Stanly High School cheer team on probation. Presumably recognizing this, the school district even incorporated the Hazelwood analysis into its public statements.[31] If the circumstances were different and the cheerleaders were not wearing school uniforms as representatives of the school, Tinker would most likely apply to protect their First Amendment rights to political expression. However, since students, parents, and members of the public could certainly “reasonably perceive” that the expression “bears the imprimatur of the school,” and since the photo was taken at a school event, it would seem that the NCHSAA operated within its authority to put the students on probation.[32] Currently, there is no indication that this incident will result in litigation. For now, it acts as a small reminder of a decades-old debate that will not be resolved any time soon.

[1] Caitlin O’Kane, Cheerleaders Held Up a “Trump 2020” Sign During a Football Game. They Were Put on “Probation” for the Rest of the Season, CBS News (Sept. 17, 2019), https://www.cbsnews.com/news/cheerleaders-put-on-probation-for-trump-2020-sign-during-north-stanly-high-school-football-game-north-carolina/.

[2] See Marc Nathanson, North Carolina School Officials Cancel Football Game After Cheerleaders’ Trump 2020 Banner, ABC News (Sept. 21, 2019), https://abcnews.go.com/US/north-carolina-school-officials-cancel-football-game-cheerleaders/story?id=65765969.

[3] Kristy Kepley-Steward, North Carolina Cheerleading Squad on Probation for ‘Political Message’ at Game, WLOS (Sept. 16, 2019), https://wlos.com/news/local/north-carolina-cheerleading-squad-on-probation-for-political-message-at-game.

[4] O’Kane, supra note 1.

[5] Andrea Blanford (@AndreaABC11), Twitter, (Sept. 17, 2019, 1:05 PM), https://twitter.com/AndreaABC11/status/1174006406753783808.

[6] Nathanson, supra note 2.

[7] See generally Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[8] Tinker, 393 U.S. at 504.

[9] Id.

[10] Id.

[11] Ronna G. Schneider, General Restrictions on Freedom of Speech in Schools, 1 Educ. L. § 2:3 (2018).

[12] Tinker, 393 U.S. at 509.

[13] Id. at 508.

[14] See Matthew M. Pagett, A Tinker’s Damn: Reflections on Student Speech, 2 Wake Forest J.L. & Pol’y 1, 19 (2012).

[15] See id. at 4.

[16] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677–78 (1986).

[17] Id. at 685.

[18] Pagett, supra note 14, at 10.

[19] Fraser, 478 U.S. at 680.

[20] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 263 (1988).

[21] Id.

[22] Id. at 270–71 (emphasis added).

[23] Id. at 273.

[24] Id. at 271.

[25] Id.

[26] Morse v. Frederick, 551 U.S. 393, 397 (2007).

[27] Id. at 397–98.

[28] Id. at 403.

[29] Id. at 407.

[30] Id. at 409.

[31] See O’Kane, supra note 1.

[32] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

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6Sep

Of Subtweets and Bedbugs: Libel in the Age of Social Media

Categories: Current Issues Blog
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By Greg Berman

Controversy erupted last week after a George Washington University professor, Dave Karpf, tweeted a joke at New York Times columnist Bret Stephens’s expense.  Quoting an 8-word post about a bedbug infestation in the Times’ newsroom, Karpf joked that “[t]he bedbugs are a metaphor.  The bedbugs are Bret Stephens.”[1]  Although this tweet did not initially gain much traction, it later went viral when Stephens personally emailed Karpf, as well as the George Washington University provost, demanding an apology for the insult.[2]  After several more tweets and an off-scheduled column post by Stephens with visible references to the controversy, both sides of the feud seem to be slowing down.[3]  Although this back and forth is just one isolated incident between two individuals, it highlights a growing trend in our discourse.  With the growing usage of social media in our society, these sorts of ideological clashes have seemingly become more prevalent than ever.[4]  And even though these virtual arguments tend to be more of an annoyance than a liability, reputation-damaging attacks (even those made on the internet) still can run the risk of triggering a costly libel lawsuit.[5] 

The tort of libel is defined by Black’s Law Dictionary as “[a] defamatory statement expressed in a fixed medium, esp[ecially] writing but also a picture, sign, or electronic broadcast.”[6]  The enforcement of libel laws in the United States dates predates the ratification of the Constitution, most notably with the trial of John Peter Zenger, whose 1735 jury acquittal established the idea that someone cannot be charged with libel if the remark is true.[7]  Even today, the accuracy of the allegedly libelous statements continues to be one of key factors for courts to consider in libel cases, with each state setting their own standards for liability.[8]  Another key consideration for courts comes from New York Times v. Sullivan, where the Supreme Court differentiated defamation claims involving public figures and private individuals, holding that any libel suit against a public figure requires the inaccurate statement to be made with “actual malice.”[9]  Actual malice has been defined by the Court as “knowledge that (the statement) was false or with reckless disregard of whether it was false or not.”[10]  Additional protections against libel claims were enacted nine years later, when the Supreme Court limited libel laws to apply only to intentionally false statements of fact, even if a trial court is presented with baseless opinions that are similarly incorrect.[11]

Our ever-increasing move toward a digitalized world raises the question of how these libel laws can be applied to internet publications.  To start, no claim for libel can be made against any social media site, such as Facebook or Twitter, for content posted by a user of that social media site.[12]  This is primarily due to the expansive legal protections given to these “interactive computer services” by Section 230 of the Communications Decency Act of 1996.[13]  That being said, individuals may still be held liable for content that they post on the internet, with each state continuing to apply its own standards for libelous conduct even as information crosses state lines.[14]  When it comes to the question of jurisdiction, the Supreme Court clarified in Keeton v. Hustler Magazine, Inc. that a state can claim jurisdiction over a non-resident when injurious information is intentionally disseminated to its citizens.[15]  Specifically, the Court cited each state’s interest in protecting its citizens from intentional falsehoods as a key consideration in its decision.[16] While online information is disseminated in a different manner than the magazines from Keeton, courts have begun allow jurisdiction for internet libel cases when the online post directly targets one or more residents of the state.[17]

When applying libel laws to online statements, courts have used similar substantive principles to those used for print publications.  In 2009, former musician Courtney Love was sued by her former attorney after tweeting allegedly libelous remarks.[18]  As this was the first reported case to go to a jury decision for remarks made over Twitter, the trial court was left with a case of first impression.[19]  In a landmark decision, the court opted to apply traditional libel laws.  A jury found that Love did not know that the statements were false at the time they were made; she therefore lacked the actual malice required to be considered libel.[20]  

There have also been other cases involving libelous comments made over Twitter.[21]  For example, one such case took place after a tenant complained on her personal Twitter account about her “moldy apartment.”[22]  After seeing the post, the landlord sued the tenant under Illinois libel laws; the case was later dismissed with prejudice because the tweet was too vague to meet the requisite legal standards for libel.[23]  Another lawsuit took place after a mid-game conversation between an NBA coach and a referee was overheard and tweeted out by an AP reporter.[24]  The referee insisted that the reported conversation never took place, and the subsequent lawsuit ultimately resulted in a $20,000 settlement.[25]  Each of these cases present factually unique scenarios, but all together indicate a growing trend: even as the medium for public discourse has been rapidly shifting towards the digital sphere, traditional libel laws still continue to apply.

In addition to substantive treatment, there also remain unresolved legal questions stemming from courts’ application of the single publication rule.  The single publication rule provides that “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication” and therefore “only one action for damages can be maintained.”[26]  The justification behind this rule is simple: by aggregating all damages allegedly caused by a publication to a single action, a party would not be perpetually bombarded with litigation long after their active role in publication has ended.[27]  This rule has already been adopted in “the great majority of states” and was implemented within the 4th Circuit in Morrissey v. William Morrow & Co.[28]  However, some academics have proposed that the single publication rule should not always be applied to social media posts, citing the possibility that a publisher could personally solicit shares or retweets and thereby maintain an active role in republishing libelous information.[29]  The issue of continual dissemination by means of retweeting seems primed to be raised in later litigation, but thus far has not been brought before any court.[30]  Still, many circuits have already begun the process of implementing the single publication rule to online posts in general (so far these cases have been litigated over personal blogs rather than Facebook or Twitter posts), so it will be interesting to see how courts handle the issue if eventually raised by litigants down the road.[31]

As the social media presence in our society grows stronger each day, only time will tell if courts will craft separate libel principles for online publications.  There are arguments to be made on both sides, especially now that online mediums are increasingly taking over many of the informational functions previously held by their print counterparts.[32]  For now, at least, courts are continuing to use the same traditional libel laws that have been evolving and changing since John Peter Zenger’s 1735 acquittal. [33]  And while the jury is still out on whether Dave Karpf actually thinks Bret Stephens is a metaphorical bedbug, he can likely rest easy knowing that current libel laws will protect his joke from any future legal trouble.

1. Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 5:07 PM), https://twitter.com/davekarpf/status/1166094950024515584.

[2] See Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 9:22 PM), https://twitter.com/davekarpf/status/1166159027589570566; Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 10:13 PM) https://twitter.com/davekarpf/status/1166171837082079232; see also Tim Efrink & Morgan Krakow, A Professor Called Bret Stephens a ‘Bedbug.’ The New York Times Columnist Complained to the Professor’s Boss, Wash. Post (Aug. 27, 2019), https://www.washingtonpost.com/nation/2019/08/27/bret-stephens-bedbug-david-karpf-twitter/ (summarizing the context of Korpf’s tweet and the resulting controversy).

[3] See Dave Korpf (@davekorpf), Twitter (Aug. 30, 2019, 7:58 PM), https://twitter.com/davekarpf/status/1167587392292892672; Bret Stephens, Opinion, World War II and the Ingredients of Slaughter, N.Y. Times (Aug. 30, 2019), https://www.nytimes.com/2019/08/30/opinion/world-war-ii-anniversary.html.

[4] Jasmine Garsd, In An Increasingly Polarized America, Is It Possible To Be Civil On Social Media?, NPR (Mar. 31, 2019) https://www.npr.org/2019/03/31/708039892/in-an-increasingly-polarized-america-is-it-possible-to-be-civil-on-social-media.

[5] See id.; Adeline A. Allen, Twibel Retweeted: Twitter Libel and the Single Publication Rule,15 J. High Tech. L. 63, 81 n.99 (2014).

[6]  Libel, Black’s Law Dictionary (11th ed. 2019).

[7] Michael Kent Curtis, J. Wilson Parker, William G. Ross, Davison M. Douglas & Paul Finkelman, Constitutional Law in Context 1038 (4th ed. 2018).

[8] James L. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 384 (1985).

[9] 376 U.S. 254, 279–80 (1964); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (defining a public figure as either “an individual achiev[ing] such pervasive fame or notoriety” or an individual who “voluntarily injects himself or is drawn into a particular public controversy”).

[10] Sullivan, 376 U.S. at 280.

[11] See Gertz, 418 U.S. at 339 (“[u]nder the First Amendment, there is no such thing as a false idea.”).

[12] See Allen, supra note 5, at 82.  Of course, Facebook and Twitter are not immunized against suits for content that they post on their own platforms.  Cf. Force v. Facebook, Inc., ___ F.3d ___, No. 18-397, 2019 WL 3432818, slip op. at 41 (2d Cir. July 31, 2019), http://www.ca2.uscourts.gov/decisions/isysquery/a9011811-1969-4f97-bef7-7eb025d7d66c/1/doc/18-397_complete_opn.pdf (“If Facebook was a creator or developer, even ‘in part,’ of the terrorism-related content upon which plaintiffs’ claims rely, then Facebook is an ‘information content provider’ of that content and is not protected by Section 230(c)(1) immunity.”).

[13] 47 U.S.C. §230(c)(1) (2017) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).  “Interactive computer service” is defined by the act as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”). Id. at §230(f)(2); see also Allen, supra note 5, at 82 n.100 (describing additional protections provided by the Communications Decency Act, including how Twitter falls under its definition of “interactive computer service”).

[14] See Allen, supra note 5, at 84; Pielemeier, supra note 8, at 384.

[15] 465 U.S. 770, 777 (1984); see also Calder v. Jones, 465 U.S. 783, 791 (1984) (holding that personal jurisdiction is proper over defendants who purposefully directed libelous information at the plaintiff’s home state with the intent of causing harm).

[16] Keeton, 465 U.S. at 777.

[17] See, e.g.,Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997); Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002); Tamburo v. Dworkin, 601 F.3d 693, 707 (7th Cir. 2010) (each applying traditional libel tests for personal jurisdiction to online publications, requiring the publication to be intentionally targeted towards citizens of the state). 

[18] Gordon v. Love, No. B256367, 2016 WL 374950, at *2 (Cal. Ct. App. Feb. 1, 2016). The exact language of the tweet in question was “I was fucking devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote.”  Id.  The tweet was deleted five to seven minutes after it was posted.  Id. at *3.  This was Love’s second time being sued for defamation over comments made on her Twitter account, although the first lawsuit resulted in a $430,000 settlement before trial. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter Case, Reuters (Mar. 3, 2011), https://www.reuters.com/article/us-courtneylove/courtney-love-to-pay-430000-in-twitter-case-idUSTRE7230F820110304.

[19] See Allen, supra note 5, at 81 n.99.

[20] Love, 2016 WL 374950, at *3.  The reason actual malice was required in the case is because Love’s attorney had gained public figure status, which was not disputed at trial. Id.

[21] See Joe Trevino, From Tweets to Twibel*: Why the Current Defamation Law Does Not Provide for Jay Cutler’s Feelings, 19 Sports Law J. 49, 61–63 (2012) (describing a series of libel lawsuits stemming from social media posts).

[22] Id. at 61.

[23] Andrew L. Wang, Twitter Apartment Mold Libel Suit Dismissed, Chi. Trib. (Jan. 22, 2010), https://www.chicagotribune.com/news/ct-xpm-2010-01-22-1001210830-story.html.

[24] Trevino, supra note 21, at 63. 

[25] Lauren Dugan, The AP Settles Over NBA Twitter Lawsuit, Pays $20,000 Fine, Adweek (Dec. 8, 2011), https://www.adweek.com/digital/the-ap-settles-over-nba-twitter-lawsuit-pays-20000-fine/.

[26] Restatement (Second) of Torts § 577A(3–4) (Am. Law Inst. 1977).

[27] Id. at § 577A cmt. b.

[28] 739 F.2d 962, 967 (4th Cir. 1984) (quoting Keeton, 465 U.S. at 777 n.8).

[29] Allen, supra note 5, at 87–88.

[30] See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. Rev. 895, 915 (2001) (calling for courts to define “republication” in the context of internet publications).

[31] See, e.g., Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130–31 (9th Cir. 2006); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144 (5th Cir. 2007).  But see Swafford v. Memphis Individual Prac. Ass’n, 1998 Tenn. App. LEXIS 361, at *38 (Tenn. App. 1998).

[32] See Allen, supra note 5, at 91 n.157.

[33] See Trevino, supra note 19, at 69.

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9Apr

4th Circuit: Lessons on Islam Don’t Violate Christian Student’s Rights

Categories: 4th Cir. Blog Civil Cases Issues in the 4th Circuit
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By Caroline Hamilton and Alex Prunka

During the 2014­–15 school year, Caleigh Wood was an eleventh grade student at La Plata High School in Charles County, Maryland.[1]  Wood was required to take a world history course as a part of the school’s curriculum, featuring a small, five-day unit entitled “The Muslim World.”[2]  This unit was designed to “explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.”[3]  Wood took issue with two aspects of the Muslim World unit: (1) the PowerPoint slide which stated “most Muslim’s [sic] faith is stronger than the average Christian [sic]” and (2) a worksheet summarizing the lesson that required her to complete certain information about the Islamic faith.[4]

Wood sued the defendants Evelyn Arnold, Shannon Davis, the Board of Education of Charles County, and the Charles County Public Schools.  In Wood v. Arnold,[5] she asserted two claims: (1) the defendants violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion;” and (2) that defendants violated the Free Speech Clause of the First Amendment by requiring her to complete the shahada assignment thereby depriving her “of the right to be free from government compelled speech.”[6]  The United States District Court for the District of Maryland granted summary judgment to the defendants on all claims, and Wood appealed.

Plaintiff’s Arguments

Wood’s first claim was based on the Establishment Clause. She argued that the defendants endorsed a view of Islam over Christianity, which violates the Establishment Clause[7] based on the comparative faith statement that read “Most Muslim’s faith is stronger than the average Christian.”[8]  Wood also believed that the assignment which required to fill in the blanks regarding the lesson plan impermissibly advanced Islam and compelled Wood to deny the existence of her God.[9]  Wood argued that the religious endorsement could not be overcome by the secular purposes alleged by the defendants.[10]

Regarding Wood’s Free Speech Clause challenge, she contended that the defendants violated her right to free speech by requiring her to fill in the sentence “There is no god but Allah and Muhammad is the messenger of Allah”[11] on the after lesson worksheet.  From her position, Wood believed that this worksheet forced her to confess, by written word and deed, her faith in Allah.[12]  Having been raised in a strong Christian household, Wood took offense to what she and her parents perceived as forced proclamation of Islamic beliefs.[13]

Defendant’s Arguments

In response to Wood’s Establishment Clause claim, defendants argued the unit satisfied the first prong of the Lemon test because the purpose of the Muslim unit was primarily secular and that the single statement made on the power point rose to a level of promoting Islam.[14]  In regards to the second prong of the Lemon test, the defendants emphasized the importance of analyzing whether the school was acting to promote a particular religion from an objective standpoint and that the District Court was correct in not taking into account specific, subjective statements made by certain school officials.[15]  Finally, the defendants patently rejected the theory that the comparative faith statement and the fill in the blank worksheet could lead a reasonable juror to find excessive entanglement between the school and religion.[16]  It simply does not rise to the level of requiring Wood to profess Islam or denounce Christianity, nor does it in any way bear resemblance to a statement made by an evangelical.

In response to Wood’s Free Speech Clause challenge, the defendants argue that the classroom is not a public forum worthy of the full battery of First Amendment protections.[17]  Additionally, defendants argue that Wood was never asked to profess her belief in Islam but rather, was asked to showcase her understanding of the Islamic religion in the context of a world history class.  Thus, the forum of the classroom in conjunction with the type of “compelled” speech indicate that the fill in the blank worksheet does not violated her First Amendment rights.[18]

The Court’s Opinion

The Court affirmed the District Court’s granting of summary judgement in favor of the defendants on both counts.  The court acknowledged that the proper analysis for an Establishment Clause issue is the Lemon test,[19] which asks (1) whether the challenged material has some secular purpose; (2) whether the principal effect of government action is to suggest government preference for a particular religious view or for religion in general; and (3) whether the government action created an excessive entanglement between government and religion.[20]  However, the court first had to decide the relevant scope of inquiry—whether the challenged materials should be considered in isolation or whether they should be considered within the broader context of the world history class.  Following circuit court precedent, the court held that it was proper to consider the challenged content in the context of the world history class.[21]  Here, the court found that the challenged religious content did not offend any of the three Lemon test prongs.

The first prong imposes a “fairly low hurdle,” merely requiring the government to show that it had a plausibly secular purpose.[22]  So long as the proffered secular purpose is genuine and not a sham, the purpose will satisfy the first prong of the Lemon test.  Here, the court determined that the purpose of the two pieces of challenged content did have a primarily secular purpose.  The court noted that the Supreme Court has recognized the value in studying religion on a comparative basis.[23]  Neither the comparative faith statement being challenged or the shahada worksheet indicate a religious purpose; rather, the school had a predominantly secular purpose in teaching world history, and the subsequent shahada worksheet was in line with the academic work to be expected after a lesson plan.[24]  Thus, the court was quickly satisfied that the school was acting with a predominantly secular purpose.

Turning to the second prong of the Lemon test, the court asked whether a reasonable, informed observer would conclude that by its actions, the government has endorsed a particular religion.[25]  In analyzing this prong, courts assume that the reasonable observer is aware of the context surrounding the government action.  The court found that neither of the challenged statements indicated that the school endorsed Islam or that the school was forcing its students to endorse and participate in Islamic practices.  It distinguished the challenged content from a situation in which a school forces students to pray, which would offend the Lemon test.[26]  In fact, the challenged content was integrated into the secular curriculum and only constituted a minor part of the Muslim unit, which was only a minor part of the world history class.  Thus, the court concluded that “common sense” indicates that the school was not endorsing any religious beliefs through either of the challenged content.[27]

In dealing with the third prong, the court examined whether the government action led to an excessive entanglement between government and religion.  The court determined that they “need not dwell long on the entanglement prong” because the comparative faith statement and shahada assignment neither advanced nor inhibited religion.[28]  The secular nature of the content, in conjunction with the minor role it played in the context of the world history class, led the court to quickly find there was no entanglement issues caused by the comparative faith statement or the shahada assignment. 

The court then turned to Wood’s Free Speech Clause challenge.  Although the court acknowledged that compelled speech usually gets rigorous scrutiny,[29] this presumption needs to be balanced with the reality that students’ rights in public schools are not “automatically coextensive with the rights of adults in other settings.”[30]  The court here agreed with the Third Circuit’s approach, which stated that, in the educational context, students sometimes are forced to speak when they would rather not and that does not offend the First Amendment.[31]  From this basis, the court went on to find that the shahada assignment did not require Wood to profess or accept the tenants of Islam or take part in any devotion practice related to Islam.  Therefore, Wood’s right against compelled speech was not violated.

Conclusion

The Court of Appeals for the Fourth Circuit, in a relatively short opinion, affirmed the granting of summary judgment in favor of the defendants.  The court did not find merit on either of Wood’s assertions that the comparative faith statement or the shahada worksheet violated the Establishment Clause or the Free Speech Clause.  The content in question was a minor part of a small unit about the Muslim world in the context of a world history class.  The purpose for this content is clearly secular in nature and would not have led a reasonable juror to find that Wood’s rights were violated.

[1] Wood v. Arnold, 915 F.3d 308, 312 (4th Cir. 2019).

[2] Id.

[3] Id.

[4] Id. at 312–13.

[5] 915 F.3d 308 (4th Cir. 2019).

[6] Id. at 313.

[7] The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I, cl. 1.

[8] Wood, 919 F.3d at 313.

[9] Id.

[10] Id.

[11] Id. at 318.

[12] Id. at 319.

[13] Plaintiff’s Amended Complaint ¶¶ 34–40, Wood v. Arnold, (No. 8:16-cv-00239-GJH), 2016 WL 6136525 (D. Md. Oct. 11, 2016).

[14] Corrected Brief for Defendants-Appellants at 13, Wood v. Arnold, 915 F.3d 308 (No. 18-1430) (4th Cir. 2019).

[15] Id. at 19–21.

[16] Id. at 22–24.

[17] Id. at 25–26.

[18] See id. at 31.

[19] Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019).

[20] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[21] Wood, 915 F.3d at 314–15 (citingLambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 271 (4th Cir. 2005)). 

[22] Id. at 315 (citing Glassman v. Arlington Cty., 628 F. 3d 140, 146 (4th Cir. 2010)).  

[23] Id. at 315 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255 (1963)).

[24] Id. at 317.

[25] Id. at 316 (citing Cty. of Alleghany v. ACLU, 492 U.S. 573, 592–94 (1989)).

[26] Id. at 317 (citingLee v. Weisman, 505 U.S. 577, 598–99 (1992)).

[27] Id. at 317–18.

[28] Id. at 318.

[29] Id. at 319 (citingGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F. 3d 101, 107 (4th Cir. 2018)).

[30] Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[31] Id. (citing C.N. v. Ridgewood Bd. of Educ., 430 F. 3d 159, 187 (3d Cir. 2005)).

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15Feb

Weekly Roundup – 2/11–2/15

Categories: 4th Cir. Blog Weekly Roundup
Comments Off on Weekly Roundup – 2/11–2/15

By Thomas Cain and Noah Hock

Wood v. Arnold

In this civil case, Appellant Wood claimed teaching and assessment materials from a high school world history class violated her First Amendment rights under either the Establishment Clause or the Free Speech Clause.  At issue were a statement comparing Islamic and Christian faiths and a worksheet requiring Wood to demonstrate her knowledge of some of the tenets of Islam.  Considering the challenged materials within the context of the world history curriculum, the Fourth Circuit found the materials did not violate the Establishment Clause because they did not impermissibly endorse any religion and did not violate the Free Speech Clause because they did not compel Wood to profess any religious belief.  As such, the Fourth Circuit affirmed the District Court’s ruling granting summary judgment in favor of the defendants.

Rodriguez-Arias v. Whitaker

In this case, Petitioner Rodriguez-Arias sought review of the final order of the Board of Immigration Appeals (BIA) which denied his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The Fourth Circuit joined the Ninth and Third circuits in holding that when deciding a CAT case, the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.  The Court held that the BIA failed to properly aggregate the risks of torture and failed to meaningfully engage with the documentary and additional evidence about the risk of torture that Petitioner faces in El Salvador.  Thus, the Court vacated the BIA’s order and remanded the case for further proceedings consistent with this opinion.

Norfolk Southern Railway Company v. City of Roanoke

In this civil case, Appellant Norfolk Southern Railway sought review of the district court’s order granting summary judgment for the City of Roanoke on Appellant’s claims of discriminatory taxation in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act).  The case hinged on the characterization of the “stormwater management charge” as either a tax or a fee.  After weighing the relevant factors, the Fourth Circuit ultimately held that the charge was a fee, as it was more so a part of a regulatory scheme with the purpose whose purpose is to remedy the environmental harms and to hold stormwater dischargers responsible.  Thus, the Fourth Circuit affirmed the district court’s decision granting summary judgement for the defendants because only taxes are subject to challenge under the 4-R Act.

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17Oct

Judges of the Fourth Circuit – Hon. Francis D. Murnaghan, Jr.

Categories: 4th Cir. Blog Judges of the 4th Cir.
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By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

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20Mar

Fourth Circuit Affirms Grant of Summary Judgment in Social Media Dispute

Categories: 4th Cir. Blog Archive Civil Cases
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By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

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16Feb

Fourth Circuit Reaffirms Principle That A Police Chief With Reasonable Belief That Detectives Are Acting Within Scope of Employment Is Entitled To Qualified Immunity from First Amendment Retaliation Claims

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By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

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13Mar

North Carolina Free to Reject Specialty Plate Designs it Disagrees With

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By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

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16Nov

Applying Reed v. Town of Gilbert to Strike Down South Carolina’s Anti-Robocall Statute as Unconstitutional Content-Based Regulation

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By Taylor Ey

On August 6, 2015, the Fourth Circuit issued its unanimous, published opinion in the civil case of Cahaly v. LaRosa.  This case involves Mr. Robert Cahaly’s (“Plaintiff”) constitutional challenge of South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446(A)), asserting that the statute violates the First Amendment.  After applying the Supreme Court’s 2015 test in Reed v. Town of Gilbert, the Fourth Circuit decided that South Carolina’s statute did not survive strict scrutiny.  However, it also decided that Cahaly lacked standing to bring his other constitutional challenges.  Cahaly also sought damages from law enforcement officials, Paul C. LaRosa, III, and Reginald I. Lloyd (“Defendants”), who arrested him.  The Court affirmed the district court’s grant of summary judgment in favor of defendants.

Applying Reed to Determine Content Neutrality

The Fourth Circuit applied the test in Reed to determine whether the statute’s restriction was content-neutral based restrictions on speech.  The statute prohibits robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.”

Under Reed, as a threshold inquiry, courts assess whether the law is content neutral on its face.  Next, if facially neutral, courts ask whether the law cannot be justified without reference to the content of the regulated speech or adopted by the government because of a disagreement with the message the speech conveys.

Applying Reed, the Fourth Circuit found that the statute is content based on its face.  The statute forbids calls with a consumer or political message and does not apply to calls made for any other purpose.

Because the Regulation Is Content Based, the Court Applied a Strict Scrutiny Analysis  

To survive strict scrutiny, the government must prove that the restriction furthers a compelling government interest and is narrowly tailored to further that interest.  In this case, South Carolina asserted its interest was to “protect residential privacy and tranquility from unwanted and intrusive robocalls.”  The Fourth Circuit assumed that it was a compelling interest.  However, it held that the statute was not the only way to serve this interest, and thus the statute was unconstitutional.  The Court further stated that the statute was underinclusive.

Plaintiff Lacked Standing to Assert Compelled-Speech Challenge

Additionally, Cahaly raised a compelled speech challenge, which the Defendants appealed.  Defendants argued that Calahy did not suffer an “injury in fact,” and therefore did not have standing to challenge the exceptions to the statute.  The Fourth Circuit agreed because Cahaly was not charged with a violation of the statute.  Because the district court ruled for Cahaly, stating that the exceptions were unconstitutional, the Fourth Circuit vacated the district court’s judgment on this issue.

The Fourth Circuit Affirmed the District Court’s Grant of Summary Judgment

The arresting officer had probable cause to arrest Cahaly for violating the anti-robocall statute.  Officer LaRosa had six witnesses who described the robocalls, a recording of a phone call, and an investigation that connected the phone number to Cahaly.  This evidence was sufficient to give probable cause, and therefore the Court affirmed.

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