Tag: First Amendment

Even University Presidents Are Bound by the Constitution

Few could imagine a more troubling free speech and due process case than that of Hayden Barnes. 

Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari.  A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators.  Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!

The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process.  As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.”  The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.

First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights.  Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them. 

The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer.  Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.

Surveillance, San Francisco-Style

San Francisco’s Entertainment Commission will soon be considering a jaw-dropping attack on privacy and free assembly. Here are some of the rules the Commission may adopt for any gathering of people expected to reach 100 or more:

3. All occupants of the premises shall be ID Scanned (including patrons, promoters, and performers, etc.). ID scanning data shall be maintained on a data storage system for no less than 15 days and shall be made available to local law enforcement upon request.

4. High visibility cameras shall be located at each entrance and exit point of the premises. Said cameras shall maintain a recorded data base for no less than fifteen (15 days) and made available to local law enforcement upon request.

Would you recognize a police state if you lived in one? How about a police city? The First Amendment right to peaceably assemble takes a big step back when your identity data and appearance are captured for law enforcement to use at whim simply because you showed up. (ht: PrivacyActivism.org)

Government Can Tax Your Income, But It Doesn’t Own It in the First Place

As Andrew and Adam have already explained, today’s decision in ACSTO v. Winn, though grounded in the technical legal doctrine of “standing,” is a big win for school choice and state flexibility in education reform.  Even more importantly, it makes clear that there is a difference between tax credits and government spending; to find that tax money was used for unconstitutional ends here would have assumed that all income is government property until the state allows taxpayers to keep a portion of it.  That is not, to put it mildly, how we think of private property.

Of course, even had the Court found that Arizona’s scholarship scheme involved the use of state funds, the program would have been insulated from Establishment Clause challenge because it offered the “genuine and independent choice” that the Court has long required in such cases (most notably the 2002 school voucher case of Zelman v. Simmons-Harris). Many layers of private, individual decisionmaking separate the alleged entanglement of taxpayer funds with religious activities: the choice to set up a scholarship tuition organization (STO), the choice by an STO to provide scholarships for use at religious schools, the choice to donate to such an STO, the choice to apply for a scholarship, and the choice to award a scholarship to a particular student.  

Far from being an impediment to parental control over their children’s education or an endorsement of religious schooling, the autonomy Arizona grants taxpayers and STOs ultimately expands freedom for all concerned.  For more on that, see Cato’s amicus brief.

Also interesting about the case is that it offers us Justice Elena Kagan’s first significant opinion, for the dissenting four justices.  While not surprising that she would be in dissent here, in a “conventional” 5-4 split – although the “conservatives” adopted the position advocated by the Obama administration – there do appear to be some eyebrow-raising turns of phrase.  I won’t comment until I finish reading the opinion, but Ed Whelan offers an initial reaction at NRO’s Bench Memos blog.

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

The First Amendment Protects All Speech

Vermont passed a law prohibiting the exchange of a variety of socially important information. Most notably, the law outlaws the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing — a practice known as “detailing” — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly.

Yet data collection and transfer are protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, Cato Policy Analysis No. 295, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (January 22, 1998). The First Circuit had earlier upheld a similar New Hampshire law, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.

When the Supreme Court declined to review that case (which cert petition Cato supported), Cato joined the Pacific Legal Foundation and a number of individuals on a brief asking the Second Circuit to split with its First Circuit brethren and reject this dangerous narrowing of protection for free expression. The Second Circuit did just that and ruled that statutes restricting commercial speech about prescription drug-related data gathering are unconstitutional. The court emphasized that the First Amendment protects “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression.”

Vermont filed a petition asking the Supreme Court to review the case, which its adversaries supported in order to more quickly resolve the circuit split. Cato, again joining PLF, filed a brief supporting the respondents, two companies that collect and sell health information and analysis. Our brief argues that the Second Circuit should be affirmed and the Court should abandon the unworkable distinction between commercial and noncommercial speech set out in a 1980 case called Central Hudson Gas & Electric v. Public Service Commission.  Specifically, the Central Hudson approach to commercial speech veers into viewpoint discrimination and should be abandoned in favor of strict scrutiny because innovative and valuable commercial expression deserves full First Amendment protection.

The Supreme Court will hear argument in this new case out of Vermont, Sorrell v. IMS Health, on April 26.  Thanks to legal associate Caitlyn McCarthy for her help with Cato’s brief and this blog post.

Corporations Aren’t People But They Are (Legal) Persons

Recently, activist and filmmaker Annie Leonard released a video titled “The Story of Citizens United v. FEC,” an eight-and-a-half-minute criticism of last year’s Supreme Court case of the same name.

Well, sort of.

Competitive Enterprise Institute’s Lee Doren made his own video critique in response to Ms. Leonard’s offering, and points out quite clearly that Ms. Leonard doesn’t really deal with any actual constitutional problems in her position—essentially ignoring the decision and its rationale—and instead spends most of her time corporation bashing.

Lee was kind enough to cite, inter alia, a blogpost I wrote last year about what “corporate personhood” does and does not mean. If Ms. Leonard was going to ignore the decision, it may have at least served her well to read that post before producing her video. As I pointed out, under the logic she puts forth, “individuals acting through corporations should be denied their freedom of speech because corporations are ‘state-created entities.’ The theory goes that if a state has the power to create corporations, then it has the power to define those entities’ rights.” Ms Leonard’s video was made by (or coordination with) Free Range Studios—a corporation—and thus she’s making the argument that Congress should be able to keep her from or punish her for making that video because Free Range Studios shouldn’t have rights.

Despite the misinformation in Ms. Leonard’s video, we believe she and Free Range Studios have every right to be wrong as publicly as they see fit, even if she doesn’t.

Please watch Lee’s full video below, and look for the Cato shout-out around the 12:20 mark. If you’re in the Chicagoland area, I’ll be speaking about corporate rights and corporate personhood at John Marshall Law School tomorrow at 10:15AM local time. Feel free to stop by and please introduce yourself. 


Defending the Undefendable

Freedom requires tolerance. That principle will be put to the test today as Americans respond to the Supreme Court decision in Snyder v. Phelps.

As Ilya Shapiro first noted below, Chief Justice John Roberts, writing for the Court, with a thoughtful dissent by Justice Samuel Alito, upheld the right of Rev. Fred Phelps and members of the Westboro Baptist Church to picket at military funerals, carrying signs that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.” It is a mark of our liberty that in most cases we defend even the most despicable speech. And in that we stand in stark contrast to much of the world.

In truth, we should also defend most (but not all) despicable actions — short of those that violate the rights of others. But at least we defend speech, even though the line between speech and action is not always clear. But here, the Court set forth the issues carefully and correctly, examining the content, form, and context of the speech as revealed by the whole record — none of which is to say that governments cannot regulate the time, place, and manner of speech under content-neutral provisions. But as Chief Justice Roberts concluded, “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

By contrast, just today the New York Times reports that Shahbaz Bhatti, the only Christian member of Pakistan’s cabinet, was shot dead as he left his home this morning. His sin? He opposed Pakistan’s blasphemy law, despite threats to his life by Islamist extremists. And only two months ago the governor of Pakistan’s Punjab province, Salman Taseer, was shot and killed by one of his guards for speaking out in defense of a Christian woman sentenced to death under Pakistan’s blasphemy law. Tolerance is all too rare around the world, but it is the foundation of liberty. We’re fortunate to live in a nation whose Founders implanted that principle in our Constitution.