Tag: First Amendment

Even Little Platoons Have First Amendment Rights

Nathan Worley and three friends hold a weekly political discussion group in their hometown of Sarasota, Florida. In 2010, a ballot initiative for a proposed amendment to the Florida constitution prompted the group to pull together $600 and exercise their First Amendment rights. They soon found, however, that doing so wasn’t going to be quite so easy.

Under Florida’s campaign finance law, it’s illegal for two or more people to join together and spend more than $500 supporting or opposing a state ballot issue. Instead, the state forces even small groups like Worley’s to register and speak through a political committee, which is then subject to a vast catalog of vague, inscrutable regulations that are enforced by thousands of dollars in fines. To speak publicly about the ballot issue, Worley’s informal coterie would have to hire a specialized lawyer and accountant and include “disclosures” in their planned radio ads that would take up about 20 percent of the airtime.

Instead of remaining silent like most small groups do when faced with this type of prohibitive regime, the Worley crew joined with the Institute for Justice to challenge Florida’s laws and vindicate their right to free political speech in federal court. Despite the obvious speech-chilling effect of the regulations, however, the lower courts failed to rigorously scrutinize Florida’s laws. The U.S. Court of Appeals for the Eleventh Circuit in particular abdicated its judicial role in two ways.

First, instead of applying “strict scrutiny,” the court chose the more deferential “exacting” scrutiny, based on the notion that so-called “disclosure” requirements like Florida’s don’t prevent people from speaking. Second, the court hardly even applied the “exacting” standard — deciding, on its own, to all but ignore the facts of the case by analyzing it as a challenge to the entire campaign-finance regime rather than simply as-applied to small groups like Worley’s.

In light of the Eleventh Circuit’s refusal to meaningfully scrutinize Florida’s speech-restrictive laws, Worley and IJ have petitioned the Supreme Court to hear their case. Cato and the Center for Competitive Politics have filed a brief supporting that petition because rulings like the lower courts’ here demonstrate a clear need for the Supreme Court to clarify the correct standards to apply when evaluating campaign finance regimes like Florida’s.

Courts shouldn’t be able to get by without judging just because a state calls its speech regulation “disclosure,” or because the courts decide on their own to recharecterize the case as a “facial” challenge. A Supreme Court hearing would put needed pressure on the federal judiciary to actually scrutinize these types of speech regulations and hopefully prevent them from continuing to silence small groups with little funding — because even little platoons of politically interested citizens have First Amendment rights.

The Supreme Court will decide later this fall whether to hear Worley v. Florida Secretary of State.

This blogpost was co-authored by Cato legal associate Julio Colomba.

Protecting the Rights of Workers Against Forced Association

The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.

One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.

Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non-working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret-ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers.

Defending the Right to Public Presence

The essential distinction between “private” and “public” property is the egalitarian nature of the latter. There’s no true equality in private property: its owners are free to set whatever restrictions on its use they wish.

On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.

In 2008, however, Massachusetts turned this understanding on its head, declaring that in certain public spaces, some people are more equal than others. The state passed a law making it a crime to physically come within 35 feet of abortion clinics unless you’re a clinic patient, staff member, or government agent, or are using a public road or sidewalk to travel past the clinic. By the state’s own admission, the law was designed to prevent anti-abortion advocates from engaging in “sidewalk counseling.”

When a group of peaceful anti-abortion advocates challenged the law as a violation of their free speech rights, the district and circuit courts accepted the state’s argument that the law was valid as a content-neutral regulation of the time, place, and manner in which the public may engage in free speech. The Supreme Court has now taken up the case, and the petitioners argue that a law designed to target one type of speech, in one type of location, cannot be considered content- or viewpoint-neutral.

While this is indeed an important test-case for the First Amendment, Cato filed an amicus brief in support of the petitioners to present a separate point. The Fourteenth Amendment’s Due Process Clause protects certain fundamental rights against government infringement: rights that are essential to the enjoyment of the freedoms protected by the Bill of Rights, or that are part of the meaning of “ordered liberty,” or that are part of America’s history and traditions.Regardless of your preferred formulation for these protected rights, we argue that one of them is the right to public presence: the right to peacefully use public property in any manner that doesn’t harm others or unreasonably restrict their freedom to use that same public space.

The First Amendment Is More than a Political Slogan

During the November 2010 election, a number of Minnesota voters were greeted at the polls with threats of criminal prosecution just for wearing hats, buttons, or shirts bearing the images, slogans, or logos of their favorite political causes (typically not relating to the Republican or Democratic parties).

Election officials cited Minnesota Statute § 211B.11, which makes it a misdemeanor to wear a “political badge, political button, or other political insignia” to the polls on election days. While there is no definition of “political” in the statute, an Election Day Policy distributed before the election explained that the statute bans any material “designed to influence or impact voting” or “promoting a group with recognizable political views.”

After several of their members were forced to cover up or remove clothing or accessories deemed to be political — in the sole discretion of an election official — a group of organizations and individuals brought suit to challenge the state law on the grounds that it unlawfully stifles core First Amendment-protected speech. The federal district court dismissed the suit, finding that § 211B.11 satisfied the lesser degree of judicial scrutiny to which viewpoint-neutral speech restrictions are subject. On appeal, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld the law’s constitutionality, citing precedent permitting bans on active campaigning at polling sites and extending that reasoning to allow prohibitions even on passive political expression.

Those challenging the law have now asked the Supreme Court to review their case. Cato joined the Rutherford Institute on a brief supporting them, arguing that the Minnesota law’s absolute ban on “political” materials at polling sites is an unconstitutional restriction of core First Amendment speech.

Protecting the right of the people to advocate political causes is one of the primary purposes of our constitutional protections for the freedom of speech, so government restrictions in this area must be narrowly drawn and for a truly compelling reason, regardless of the type of forum where the ban applies. While the Eighth Circuit relied on precedent permitting bans on campaigning at polling sites, prohibiting inert political expression at these locations doesn’t serve a similar interest; passive expression simply doesn’t pose the same threats to elections — intimidation and chilling of voters — that active campaigning can. Accordingly, § 211B.11 cannot pass strict scrutiny; in legal terms, the restrictions it imposes are simultaneously under-inclusive, over-inclusive, and overly broad.

The Supreme Court will decide whether to take the case of Minnesota Majority v. Mansky late this fall.

Curbing Class Action Settlement Abuses

In 2007, Facebook launched the controversial “Beacon” program, which automatically broadcast purchases made by Facebook users. The disclosures revealed embarrassing movie choices, indulgent spending habits, and even ruined the purchase of a young couple’s engagement ring.

In the subsequent class action lawsuit, a $9.5 million settlement was reached in which Facebook would pay $3 million to cover attorneys’ fees and a remaining $6.5 million would be used to set up a new charitable organization—controlled by Facebook—whose mission would be to educate the public about Internet privacy. The millions of class members, however, would get nothing.

This redistribution of settlement money from the victims to other uses is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

Accordingly, class members objected to the Facebook settlement, arguing that the district court abused its discretion in approving the agreement and failed to engage in the required rigorous analysis to determine whether the settlement was “fair, reasonable, and adequate.” The San Francisco-based U.S. Court of Appeals for the Ninth Circuit affirmed the settlement, however, and expressed its unwillingness to inquire into the nature of the award because to do so would be “an intrusion into the parties’ negotiations.”

Now that the objecting class members have asked the Supreme Court to review the case, Cato filed an amicus brief arguing that the use of cy pres awards in class actions violates the Fifth Amendment’s Due Process Clause and the First Amendment’s Free Speech Clause. Specifically, due process requires—at a minimum—an opportunity for an absent plaintiff to remove himself, or “opt out,” from the class. Class members have little incentive or opportunity to learn of the existence of a class action in which they may have a legal interest, while class counsel is able to make settlement agreements that are unencumbered by an informed and participating class.

In addition, when a court approves a cy pres award as part of a class action settlement, it forces class members to endorse certain ideas, compelling speech in violation of the First Amendment. When Facebook receives money—essentially from itself—to create a privacy-oriented charity, the victim class members surrender the value of their legal claims in support of a charity controlled by the defendant. Class members are left uncompensated, while Facebook is shielded from any future claims of liability.

The Supreme Court will decide this fall whether to take the case of Marek v. Lane.

New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe

On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.

The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.

A hundred years later, however, the Court held that such power exists under the Commerce Clause – even where the business is confined to a single state. This is just one more instance of Commerce Clause abuse, something Cato has fought on numerous occasions, including the successful Commerce Clause challenge to Obamacare’s individual mandate.           

The legislation at issue in Elane Photography didn’t come from Congress, so the question of federal power doesn’t arise. But even if a state legislature has the authority to act in a specific area, that authority can’t be exercised in a manner that violates the constitutional rights of the those subject to it. Yet the New Mexico high court disagreed with the position we took in our amicus brief and held that compelling someone to engage in artistic photography somehow doesn’t violate the freedom of speech if they aren’t forced to broadcast a government-sponsored message (for more on the inadequacy of the court’s ruling see comments by Dale Carpenter and Hans Bader). 

Even if you agree with the court that New Mexico’s law doesn’t violate Elane Photography’s speech rights, however, it clearly violates the company’s freedom of association and freedom of contract – two rights which, while not explicitly named in the Constitution, are clearly implicit in our understanding of “liberty.” The right to freely associate and contract with others must include a negative right not to do so – or the right is meaningless. This isn’t a defense of bigoted business practices, but a defense of choice, and it applies across the board: I don’t like homophobia, or racism, or any other number of irrational or even deplorable attitudes, but as I said on 20/20 earlier this month, being a jerk isn’t illegal.

If a restaurant doesn’t like how you’re dressed, it has the right not to serve you. No shirt, no shoes, no service, no problem – or, at least that’s the way it should be. My property is my property and my time is my time. I have the right to sell or rent both to anyone I want – or not to, as the case may be. We don’t need a government forcing businesses to serve people because the market will do that for us: refusing customers – refusing to make a profit – over something as irrelevant as a customer’s skin color or sexual orientation is a losing business strategy. 

Unfortunately, the Supreme Court has been hostile to freedom of association and contract since the 1930s, notably in the 1984 case of Roberts v. U.S. Jaycees, where the Court upheld a law that required the Jaycees, a private self-help and leadership training group, to begin admitting women, over the membership’s objections. More recently, Christian Legal Society v Martinez, (in which Cato also filed a brief), the Court ruled that a Christian student group couldn’t restrict candidacy for leadership and ministerial positions to students who shared the group’s faith. (Accordingly, Democrats apparently have to admit Republicans, PETA has to admit meat-lovers, and so forth.) In these cases, the Supreme Court, like the New Mexico court, held that the government’s interest in equality and “non-discrimination” allows it to run roughshod over individual liberties.

While the last few terms at the Court have included numerous important victories for freedom – and we may be living what I like to call the Court’s “libertarian moment” – the Court’s protection of individual liberty is patchy. The rights of criminal suspects, the religious, property owners, businesses, and many others, are all occasionally sacrificed in the name of “progress”.

Pro-Marriage-Equality, Pro-Religious Liberty

Ryan T. Anderson, one of the most articulate advocates for the “traditional” view of marriage, points out at NRO that extending marriage to same-sex couples potentially endangers the religious liberty of those who disagree with such a policy. Particularly given a Supreme Court ruling stating that the only purpose and effect of differing treatment of same-sex relationships is to “degrade,” “demean,” “disparage,” and “injure” them, those who believe in “traditional” marriage–let alone those who think homosexuality is morally wrong–may rightly fear legal marginalization.

While I obviously disagree with Anderson’s views on gay marriage, his concerns about a slippery slope from equal protection to an enforced political correctness are not unfounded. It wouldn’t be the first time that overzealous “equality” advocates invaded individual liberty.  Senator Ted Cruz recently alluded to severe consequences from other countries’ thought police.  “Christian pastors who decline to perform gay marriages,” he warned, “who speak out and preach Biblical truths on marriage” may be prosecuted for hate speech. We don’t have to look far to see such trends; take Canada’s human rights commissions (please!).

And even in these United States, Anderson notes:

The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.” Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed-and-breakfast in Illinois who declined to rent their facility for a same-sex civil-union ceremony and reception were sued for violating the state nondiscrimination law.

This is absurd. Neither the federal nor state governments have any business punishing or rewarding Americans based on their beliefs, and private individuals should not be forced to behave in a way that violates their constitutional rights – or to have to choose between, say, their medical license and their conscience. Even if you hold, as I do, that states, if they’re involved in the marriage business, should be required to grant marriage licenses to same-sex couples, not only should clergymen not be required to perform same-sex marriages but private businesses shouldn’t be forced to be involved in them either.