Tag: First Amendment

Sebelius Shakes Down Companies She Regulates for Cash to Implement ObamaCare

Secretary of Health and Human Services Kathleen Sebelius’ latest abuse of power has strengthened the case for her removal from office. Before discussing her latest misconduct, let’s review some of Sebelius’ past abuses of power.

  • In 2010, Sebelius described anonymous political speech as “dangerous.” Ironically, Sebelius’ lashing out at her political opponents’ free-speech rights is dangerous because it is the sort of rhetoric that might encourage agencies like the IRS to target groups that “criticize how the country is being run.” That’s exactly what the IRS has admitted doing – which in turn is a good argument for protecting anonymous political speech.
  • So too is Sebelius’ 2010 threat to put health insurance companies out of business. Shortly after ObamaCare became law, insurers began telling their customers how much it was going to increase their premiums. In a September 2010 letter to insurers, Sebelius shot back that premiums would rise no more than 2 percent, even as her department predicted increases as high as 7 percent. Insurers that didn’t toe the party line “may be excluded from health insurance Exchanges in 2014.” That was no idle threat, I wrote at the time. Since “Medicare’s chief actuary predicts that in the future, ‘essentially all‘ Americans will get their health insurance through those exchanges,” Sebelius was essentially threatening to put insurers out of business if they disagreed with her.
  • In 2011, Sebelius approved her department issuing hundreds of billions of dollars in subsidies to private health insurance companies under the rubric of ObamaCare that the statute expressly forbids HHS to issue.
  • In 2012, the U.S. Office of Special Counsel concluded that Sebelius violated the Hatch Act by campaigning for President Obama and other political candidates while traveling on official business, an offense for which other federal workers are fired.
  • In a July 2012 letter to the nation’s governors, Sebelius arbitrarily rewrote and narrowed the Supreme Court’s ruling in NFIB v. Sebelius to allow HHS to continue coercing states into implementing parts of ObamaCare’s Medicaid expansion.
  • When it became apparent that two-thirds of states would not implement one of ObamaCare’s health insurance “exchanges,” Sebelius dismissed the idea that a lack of congressionally authorized funding for federal Exchanges would stop her department from implementing them. “We are going to get it done,” she said. Now we learn she substituted her own judgment for Congress’ by raiding ObamaCare’s Prevention and Public Health Fund to the tune of $454 million to fund federal Exchanges. But even that wasn’t enough.

Now we learn, from the Washington Post’s Sarah Kliff, “Sebelius has, over the past three months, made multiple phone calls to health industry executives, community organizations and church groups and directly asked that they contribute to non-profits that are working to enroll uninsured Americans and increase awareness of the law.”

This too appears to be unlawful:

Government Can’t Condition Federal Contracts on Giving Up Constitutional Rights

Under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, the government requires groups receiving federal funding for overseas HIV/AIDS programs to adopt policies explicitly opposing prostitution. Several nonprofit organizations receiving federal funds claim that this “policy requirement” violates their First Amendment rights.

The groups don’t seek to advocate for prostitution (or its legalization), but would rather not speak on the issue at all. Successful efforts to fight AIDS often involve working cooperatively with marginalized groups, so adopting a policy statement that explicitly renounces prostitution could frustrate outreach efforts to disseminate public health information. The government, however, requires funding recipients to espouse such an anti-prostitution policy even when they spend private funds.

The district court ruled in the nonprofit groups’ favor, holding that the policy requirement violates the First Amendment. The U.S. Court of Appeals for the Second Circuit affirmed, concluding that the government may not condition the receipt of public funds on giving up First Amendment rights. Indeed, were the government’s position accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights.

This week, Cato filed an amicus brief arguing that the policy requirement significantly burdens political speech, the constitutional protection of which lies at the very heart of the First Amendment. The Supreme Court has made clear that Congress may not condition participation in federal programs on speech limitations that are outside the scope of the program being funded: the Court has never given Congress carte blanche to give federal contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. It should thus continue to adhere to the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.

The Supreme Court will hear oral argument in Agency for International Development v. Alliance for Open Society International on April 22.

The First Amendment Is a Sweet Emotion

Hawaii, no longer content to trample on the Fourteenth Amendment alone, is about to bid a sorry aloha (farewell) to the First Amendment. In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii’s Senate is poised to pass the “Steven Tyler Act.”

The bill, named after – indeed, written by – the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of an aging rocker, or perhaps the Obama family. Specifically, the bill would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech. As my frequent co-author, law professor Josh Blackman explains,  there are several constitutional defects here:

First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.

Second, the proposed statute is purposely vague. It offers no guidance of what “personal or familiar activity” means.

Third, courts would have the authority not only to stop the initial publication of a photograph, but allows for restraining orders for future, subsequent reproductions of the same photograph. This type of authority is called “prior restraint” – highly suspect in First Amendment jurisprudence – with nary a compelling government interest at stake.

Fourth, the penalties are severe, and include compensatory damages, treble punitive damages, and disgorgement of profits. Such penalties on a vague statute would easily chill speech far beyond the worst kind of paparazzi any celebrity can imagine.

Fifth, this standard applies not only to the person who takes the photograph, but potentially to anyone who uses the photographs in any capacity.  The only existing publication-related laws even approaching such a strict liability standard involve child pornography. As Josh notes based on one of his law review articles, many of these constitutional defects could be fixed by adding a newsworthiness exception to the law and limiting the scope and nature of damages that can be awarded. These tweaks would bring the law more in line with existing privacy law, while still respecting the Constitution. Protecting privacy in public is a laudable goal that in our constitutional jurisprudence dates back at least to the seminal article “The Right to Privacy” by Samuel Warren and Louis Brandeis. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (viz., Princess Diana). The Steven Tyler Act, however, misses a very important thing – that privacy and the First Amendment can coexist.

Hawaii shouldn’t walk this way, instead promoting the right of privacy that our society should strive for while ensuring the freedom of speech. Let’s not be jaded by the costs of freedom. Anything else is just crazy.

Students Have Free Speech and Due Process Rights Too

This past Friday, a federal jury in Atlanta sent a powerful message to university administrators across the nation: you cannot violate students’ free speech and due process rights with impunity. The jury found Valdosta State University president Ronald Zaccari personally liable for $50,000 in damages for expelling former VSU student Hayden Barnes, who peacefully protested a planned $30-million campus parking garage. The trial and award followed a ruling last year by the U.S. Court of Appeals for the Eleventh Circuit that Zaccarri could not claim the immunity given to public officials acting in their official capacities because he should have known that Barnes was entitled to notice and a hearing before being expelled.

Barnes’s saga began in 2007, when Zaccarri announced, and Barnes protested, the proposed garage construction.  Barnes’s activities included sending emails to student and faculty governing bodies, writing letters to the editor of the VSU student newspaper, and composing a satirical collage on Facebook. In retaliation for these acts, Zaccari ordered that Barnes be “administratively withdrawn” from VSU, without any hearing before his expulsion in May 2007.

Barnes sued Zaccarri in 2010, and the federal district court quickly ruled that that Zaccarri had violated Barnes’ constitutional right to due process and that the administrator could not avail himself of qualified immunity because he had ignored “clearly established” law. When Zaccarri appealed to the Eleventh Circuit, Cato joined an amicus brief filed on behalf of 15 organizations, successfully asking the court to affirm on both First Amendment and due process grounds.

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 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. 

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.  In this case, Zaccarri even rejected the advice of in-house counsel concerning the process required before Barnes could be deprived of his enrollment at VSU and neglected to abide by the procedures set forth in the VSU Student Handbook.

This verdict is cause for celebration for those concerned with individual rights.  It will encourage students to exercise and defend their freedom of speech and due process, serving as a warning to administrators that they may not willfully disregard those rights. Perhaps most importantly, it vindicates Hayden Barnes, who has endured a grueling three years of litigation in order to earn, in his own words, “a victory for students everywhere.”

Thanks to the Foundation for Individual Rights in Education for orchestrating this case, including finding longtime Cato ally Robert Corn-Revere to be Barnes’s counsel and asking Cato to join its amicus brief.  Read FIRE’s press release on Barnes v. Zaccari.

French President Demands and Gets Firing of Opposition Editor

According to the New York Times, French Socialist president François Hollande demanded and received the dismissal of the editor of Le Figaro, the country’s leading conservative newspaper. If that sounds impossibly high-handed, consider the background, as reported in the Times:

The publisher, Serge Dassault, is a senator from [ousted President Nicolas] Sarkozy’s political party [and thus opposed to Hollande]. But Mr. Dassault also heads a major military contractor, and there was widespread speculation that [Figaro editor Étienne] Mougeotte’s ouster was meant to put the Dassault group in good stead with the new president.

For an American reader, it would be natural to turn the page with a murmur of thanks that such things don’t go on in our country. Don’t be so sure:

[Since-convicted Illinois Gov. Rod] Blagojevich, Harris and others are also alleged [in the federal indictment] to have withheld state assistance to the Tribune Company in connection with the sale of Wrigley Field. The statement says this was done to induce the firing of Chicago Tribune editorial board members who were critical of Blagojevich.

And in 1987, at the secret behest of the late Sen. Edward Kennedy (D-MA), Sen. Ernest Hollings (D-SC) inserted a legislative rider aimed at preventing Rupert Murdoch from simultaneously owning broadcast and newspaper properties in Boston and New York. The idea was to force him to sell the Boston Herald, the most persistent editorial voice criticizing Kennedy in his home state. Kennedy’s and Hollings’s actions drew criticism in places like the Harvard Crimson and from syndicated columnist R. Emmett Tyrrell, but no national furor developed.

One moral is that we cannot expect our First Amendment to do the whole job of protecting freedom of the press. Yes, it repels some kinds of incursions against press liberty, but it does not by its nature ward off the danger of entanglement between publishers and closely regulated industries, stadium operators, and others dependent on state sufferance. That’s one reason there’s such a difference in practice between a relatively free economy, where most lines of business do not require cultivating the good will of the state, and an economy deeply penetrated by government direction, in which nearly everyone is subject to (often implicit) pressure from the authorities. France has been unable to avoid the perils of the latter sort of economy. Can we?

We Support Gay Marriage but Oppose Forcing People to Support It

Elane Photography, a Christian-identified business in Albuquerque, N.M., declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal beliefs. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission.  She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law.

The commission found against Elane and ordered it to pay $6,600 in attorney fees.  Elane Photography’s owners appealed the ruling, arguing that they are being denied their First Amendment right to the free exercise of religion (and a similar provision in the state constitution).  Furthermore, New Mexico’s Religious Freedom Restoration Act defines “free exercise” as “an act or a refusal to act that is substantially motivated by religious belief” and forbids government from abridging that right except to “further a compelling government interest.”

The state trial and appellate courts affirmed the commission’s order.  Elane Photography v. Willock is now before the New Mexico Supreme Court, where Cato has joined UCLA law professor Eugene Volokh and University of Minnesota law professor Dale Carpenter—who, like Cato, support gay marriage—in filing an amicus brief siding with Elane Photography on free speech grounds.

Our brief explains that photography is an art form protected by the First Amendment because clients seek out the photographer’s method of staging, posing, lighting, and editing.  Photography is thus a form of expression subject to the First Amendment’s protection, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers).

The U.S. Supreme Court has already ruled in Wooly v. Maynard that photography is protected speech—even if it’s not political and even if the photos are used for commercial value—and that speech compulsions (forcing people to speak) are just as unconstitutional as speech restrictions.  The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.”  Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

The New Mexico Supreme Court should thus reverse the lower court’s ruling and allow Elane Photography to be free to choose the work it desires.