Topic: Law and Civil Liberties

An Important but Limited Victory for Free Speech

On Thursday, the Supreme Court ruled in Expressions Hair Design v. Schneiderman that imposing restrictions on how merchants inform buyers about the prices they charge triggers First Amendment scrutiny. This would seem to be an obvious conclusion, but the decision is an important, although limited, victory for those who want to convey honest information to their customers, and for those who have a right to receive that information.

The case dealt with New York Business Law § 518, which prohibits merchants from imposing a “surcharge” on customers who use credit cards, but allows for a “cash discount.” To put it simply: the law allows stores to advertise “discounts” for paying cash, but makes it a crime to advertise an economically equivalent “surcharge” for paying with plastic.

Expressions Hair Design, along with several other merchants, sued the state, arguing that the law was vague and a violation of their First Amendment right to convey information to their customers. The federal district court agreed, but the U.S. Court of Appeals for the Second Circuit reversed that decision. The circuit court’s ruling held that the First Amendment wasn’t implicated because the law didn’t regulate speech but merely regulated prices. The Supreme Court granted review to determine two issues: The threshold question of whether the law regulated speech rather than conduct and, if so, whether the law violated the First Amendment.

Chief Justice John Roberts, writing for a majority of the Court, held that the New York law was not only a price regulation dealing with conduct, but also a speech regulation: “What the law does regulate is how sellers may communicate their prices.” As he explained:

A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10, with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation.  In regulating the communication of prices rather than prices themselves, Section 518 regulates speech.

While this part of the Court’s decision is an important victory for free speech, the Court also held that the law was not vague and did not decide whether the speech restriction amounted to a First Amendment violation under the commercial speech doctrine. In what has become a theme, the Court made a point of ruling as narrowly as possible and remanded the case to the Second Circuit to make that hard balls-and-strikes call that John Roberts discussed at his confirmation hearing. This means the merchants will have to continue to fight for their rights in the lower court.

Court Says Regulation of In-State, Noncommercial Activity Is Valid Regulation of Interstate Commerce. Somehow.

Once again, a court has refused to recognize any meaningful limit to Congress’s authority to regulate Americans’ private lives through the Commerce Clause. On Wednesday, after a long delay in considering the case, the U.S. Court of Appeals for the Tenth Circuit reversed a district court order that had declared the U.S. Fish and Wildlife Service (FWS)’s regulations prohibiting the “taking” of the Utah prairie dog (effectively, anything that may disrupt its habitat) unconstitutional. (This is a case in which Cato had filed a brief nearly two years ago.)

The court held that, since Congress had a rational basis to believe that protecting the prairie dog “constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce,” the FWS regulations are authorized under Article I, section 8. This, despite acknowledging that “taking” the prairie dogs—which exist solely within the borders of Utah and have no economic value—is a “noncommercial, purely intrastate activity.”

North Carolina Bids To Close the Door On Its Bathroom Wars

The North Carolina legislature has passed and sent to Democratic Gov. Roy Cooper H.B. 142, unveiled last night as a compromise intended to end the state’s acrimonious year-long battle over discrimination laws and transgender persons’ access to bathrooms and changing rooms. From what I can see, it’s a basically sound measure that gives both sides much of what they legitimately asked.

HB2, the bill passed last March, was a response to a successful push in the city of Charlotte to enact anti-discrimination laws going well beyond state law in numerous areas, including making LGBT persons a protected class and regulating private actors in various ways (including bathroom policies) through employment and public accommodations laws. Opponents went to the state legislature and – as has happened in other states lately as well – proposed yanking back those portions of home rule that allowed for local ordinances to go beyond state law. (How you feel about yanking back home rule powers probably has a lot to do with how you feel about the substantive laws involved, since neither libertarians nor most other thinkers hold to a rigid always-or-never view of municipal home rule powers. Should towns in your state have the power to jail people for using alcohol or medical marijuana? Enact rent control? Ban the construction of any residence worth less than $1 million?)  

One part of HB2, then, eliminated towns’ and cities’ power to go beyond state law in some areas of employment and public accommodations law. But HB2 went a fateful step further by enacting into law the idea of some organized social conservatives that transgender persons should use the bathroom of their sex at birth, unless they succeed in jumping over the legal hurdles needed to get a changed certificate. There are all sorts of things wrong with that approach, and I said some of them in a Wall Street Journal letter last year

[The relevant section] of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.

The new HB142 compromise retreats, and rightly so, from this worst portion of HB2, but it does not retreat (or at least not very much) from the other elements, including those that are not so bad. By repealing HB2, it abandons the wretched aim of trying to prohibit transgender-friendly bathrooms. But it also takes away local governments’ power to mandate them in the private sector. It provides that “State agencies, boards, offices, departments, institutions, branches of government, including The University of North Carolina and the North Carolina Community College System, and political subdivisions of the State, including local boards of education, are preempted from regulation of access to multiple occupancy restrooms, showers, or changing facilities, except in accordance with an act of the General Assembly.” 

“Regulation of access to” is not an entirely clear phrase in this context. Clearly, cities like Charlotte need to go on carrying on the “regulation of access to” their own city-run facilities. The debate in the legislature today, according to several sources, emphasized sound local discretion – Charlotte can run bathrooms in municipal buildings the way it sees fit. 

The bill further pre-empts municipalities temporarily from enacting discrimination laws that go beyond the states’. “No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations. That latter pre-emption expires in 2020.

The new compromise is being met with peals of outrage from some of the predictable ultras on both sides. But it looks to me like a more careful attempt to respect the legitimate rights of both sides than we’ve seen in this controversy up to now.

Jury Trial Comes Before Supreme Court

Yesterday morning the Supreme Court heard oral arguments in Lee v. United States, which concerns the right to counsel and the right to trial by jury.  Here is an excerpt from a piece I had published in The Hill:

Jae Lee came to the United States from South Korea in 1982. At the time, he was just a boy in the care of his parents. Now 48 years old, Lee has lived in the U.S. as a lawful permanent resident for decades. He went to school in New York, but eventually moved to Memphis and got into the restaurant business. According to federal prosecutors, Lee also became a small time drug dealer and, after his arrest, he was facing serious criminal charges.

Like many persons who are accused of a crime, the prosecution offered Lee some leniency in prison time if he would agree to surrender his constitutional right to trial by jury. Naturally, Lee wanted to know all of the legal consequences of accepting the government’s plea offer — so he asked his attorney whether he would be subject to deportation to South Korea. Lee’s attorney assured him that deportation would not be a problem and advised him to accept the plea bargain.

On that recommendation, Lee pled guilty.

As it turned out, Lee received bad legal advice. His conviction meant he was now subject to deportation under federal law. After serving several years in prison, he would eventually be deported to South Korea and essentially banished from the U.S.

On appeal, Lee argues that he only pled guilty because of the recommendation from his lawyer. He wants to take his case before a jury.

Federal prosecutors say there’s no need for a trial because the evidence against Lee is strong.  That’s a curious argument to make.  Our constitutional right to trial by jury doesn’t depend on the government’s assessment of its own case.  And, really, what kind of government would burden us with trillions of dollars of debt and then turn around and, in effect, say “Yes, this person was given incorrect legal advice, and yes, the Bill of Rights says we’re supposed to respect the accused’s right to trial by jury, but this is a situation in which we have to be mindful of the costs related to trials.  Let’s deny a trial to Mr. Lee because it would just be a waste of time and money. He should be grateful for the way his case was handled, for his prison food, and that we’re sending him to South Korea instead of North Korea.”

Here’s a link to the Cato amicus brief in the case.  And if you’d rather listen than read, here’s a link to a Cato podcast interview with Caleb Brown.

Against Ideological Litmus Tests at State-Funded Professional Schools

Craig Keefe was expelled from his state-funded nursing college in Minnesota because something he said was deemed unprofessional. He didn’t break any laws with what he said—there were no threats or anything like that—and wasn’t even on campus at the time. He just made a handful of rude comments on his personal Facebook page, unrelated to any curricular project.

Nevertheless, the school had adopted the American Nurses Association’s code of professional ethics, which forbids behavior “unbecoming of the profession” or that “transgresses personal boundaries,” into its student handbook, so the federal district court rejected Keefe’s challenge to his expulsion. The U.S. Court of Appeals for the Eighth Circuit affirmed that ruling, effectively holding that that any punishment of speech under the nursing code is effectively free from First Amendment review.

So now Mr. Keefe, represented by Cato adjunct scholar Robert Corn-Revere, is asking the Supreme Court to take his case. Cato, joined by the Electronic Frontier Foundation, National Coalition Against Censorship, and Student Press Law Center, and with the help of Prof. Eugene Volokh and the UCLA First Amendment Clinic, has filed a brief supporting that request.

First Amendment protection is critical at universities, where complicated and controversial ideas are supposed to be formulated and debated. If uncorrected, the Eighth Circuit opinion permitting Keefe’s expulsion will set a dangerous precedent: Colleges will be able to punish students for expressing their views, based simply on administrators’ judgments that certain speech is inconsistent with their subjective understanding of professionalism.

Many professional-ethics codes—including the one at issue here—embody specific ideological commitments that might not be shared by large numbers of students, while also containing vague requirements that members uphold those values in their daily lives. The Eighth Circuit has opened the door for professional schools, including law and business schools, to enforce ideological litmus tests under the guise of ensuring adherence to professional ethics. Indeed, we have already seen—in cases the lower court cites to defend its position—students being targeted for their beliefs (for example, Keeton v. Anderson-Wiley (11th Cir. 2011), where a student was disciplined for statements disapproving of homosexuality).

Allowing viewpoint discrimination by way of professional codes of conduct opens up a gigantic loophole in the First Amendment’s freedom of speech, and in constitutional protections for conscience rights more broadly.

The Supreme Court will decide before it breaks for the summer at the end of June whether to take Keefe v. Adams.

CBO Projections: Unhealthy Basis for Health Policy

In the political hullabaloo over efforts to shift costs of health care to someone else, the argument for keeping Obamacare’s compulsory insurance and ever-expanding Medicaid enrollment relies naïvely on notoriously comical Congressional Budget Office (CBO) 10-year “projections.” 

CBO claims the initial House Republican plan would eventually cause 3 million to “lose” health insurance simply because they would no longer be fined up to 2.5% of income for not buying a policy designed by and for politicians. This not a loss, but a gain – in freedom of choice.

CBO claims the GOP plan would “lose” another 14 million by not expanding Medicaid enrollment as rapidly as Obamacare hopes to. The federal government pays about 57% of the cost of Medicaid for poor people, but 90-93% (until 2022) to the 31 states that provide Medicaid to those earning up to 138% of the poverty line. That has added 17 million to the Medicaid rolls, and enriched big health insurers and Kaiser Permanente.

The Wrong Way to Enforce Immigration Laws

Yesterday, the Los Angeles Times noted that reports of sexual assault and domestic violence are down in Latino-dominated areas of Los Angeles. NPR also published a story yesterday about four cases of domestic violence dropped by four Latina women in Denver, Colorado. The underlying factor blamed in both stories is federal enforcement of immigration laws at local courthouses.

I wrote about the fallout of this abhorrent practice last month in the Washington Post.

Seizing a person who is seeking refuge from violence subverts the protective function of police officers. If individuals fear as much from law enforcement as they do the criminals living among and victimizing them, they will not come forward to report crimes or cooperate with criminal investigations.

While immigration enforcement is often done under the banner of “public safety,” victims of crimes will be less likely to come forward if doing so risks breaking up their families by deportation. This puts more people in harm’s way and enables abusers and predators free rein among people too fearful to ask for the help that they need.

Moreover, despite the “law and order” rhetoric touted by the Trump Campaign and now Administration, these efforts make police officers’ jobs more difficult.

One Los Angeles Police Dept. detective told the Los Angeles Times, “It is my job to investigate crimes… . And if I can’t do that, I can’t get justice for people, because all of a sudden, I’m losing my witnesses or my victims because they’re afraid that talking to me is going to lead to them getting deported.” When he recently approached a group of Latino workers to investigate a crime, they stood up and walked away. Even though Los Angeles has repeatedly asserted its self-appointed status as a “sanctuary city” for immigrants, one of the workers uttered “Trump is coming,” as he left.

All the pro-police rhetoric in the world cannot make-up for the real-world problems that misguided immigration enforcement can cause. Emboldening violent criminals by making large swaths of the population too scared to come forward not only makes police work more difficult, it can make it more dangerous.

Supporting the police means respecting their jobs and enforcement priorities, not just reciting tough-on-crime pablum. If the Administration really cares about police officers, it should start listening to what they have to say. Immigration agents can find other ways to enforce the law than to pick on the most vulnerable at their time of need.