1st Amendment Thread

[de officiis]

Confederate emblem causes unequal treatment, attorneys argue

JACKSON, Miss. (AP) — Attorneys say in written arguments to the U.S. Supreme Court that the Confederate battle emblem on the Mississippi flag is “an official endorsement of white supremacy” and lower courts were wrong to block a lawsuit challenging the flag.

The arguments were made in papers filed Friday by lawyers for Carlos Moore, an African-American attorney who sued the state in 2016 seeking to have the flag declared an unconstitutional relic of slavery.

Mississippi has used the same flag since 1894 and it has the last state banner featuring the Confederate symbol — red field topped by a blue tilted cross dotted by 13 white stars. Critics say the symbol is racist. Supporters say it represents history.

“Mississippi adopted its flag at the same time it vigorously reasserted white control of the state, the flag was intended to be an official endorsement of white supremacy, and by continuing to fly it, Mississippi broadcasts that message on daily basis,” Moore’s attorneys wrote. “It is the equivalent of the state adopting ‘White Supremacy Forever’ as its state motto.”

A federal district judge and an appeals court ruled against Moore, and his attorneys are trying to revive the case. The Supreme Court accepts a fraction of cases on appeal.

In papers filed Oct. 18, attorneys for Gov. Phil Bryant said the 5th U.S. Circuit Court of Appeals was correct to say that Moore failed to show he suffered harm because of the flag.

Moore’s attorneys, led by Michael T. Scott of Philadelphia, responded Friday that “government speech endorsing one race over another” is a violation of the constitutional guarantee of equal protection.

Mississippi residents who voted in a 2001 referendum chose to keep the flag. . . .

Moore, who became a city judge this year, has received death threats for filing suit over the state flag and for removing the flag from his courtroom in Clarksdale, his attorneys said.

Gov. Bryant has said repeatedly that if the flag design is to be reconsidered, it should be approved by voters. He said this week that he wants the flag to go the 2018 ballot. However, it’s not clear if a majority of legislators would agree to put it there or if they would offer an alternate design.

I'd be surprised if the Supreme Court grants cert, but you never know.

No way SCOTUS touches this, IMNSHO.

The issue cuts way, way, way too deep into IRL federalism.

Particularly if the issue is being raised in the state legislature.

[de officiis]

Why Rely on the Fourth Amendment To Do the Work of the First?

Alex Abdo - 127 YALE L.J. F. 444 (2017)

Government surveillance implicates the freedom of speech as well as the right to privacy, and yet our courts usually evaluate the lawfulness of government surveillance solely through the lens of the Fourth Amendment rather than the First. Is that approach defensible?

This term in Carpenter v. United States, for example, the Supreme Court will consider whether the warrantless and long-term collection of an individual’s “cell site location information,” revealing the movements and locations of the user, violates the Fourth Amendment.1 But the case has clear implications for First Amendment freedoms, too—particularly the ability to express dissent. Dissent’s fragile lifecycle—from formulation to ferment—requires privacy and often confidential association to flourish. Warrantless location tracking threatens these conditions, exposing to the government both the participants that initiate and the private places that incubate dissent. And yet the legal fight in Carpenter and many other surveillance cases is taking place almost entirely on Fourth Amendment grounds.

This trend is problematic because the Fourth Amendment is not up to the task of safeguarding dissent from the threat of new technology. As explored below, the Fourth Amendment differs from the First substantially in both its coverage and the strength of its protections. First, Fourth Amendment doctrine addresses invasions of privacy, not speech, and has been held to ignore a whole class of surveillance—the collection of third-party records—with significant implications for expression. Second, unlike the First Amendment, the Fourth Amendment is often blind to the cumulative effect of invasions of privacy that are small in isolation but substantial in combination. Third, and relatedly, the Fourth Amendment tends to focus narrowly on individual harms, not collective or societal ones. Fourth, even when it does apply, the Fourth Amendment offers much weaker protection than does the First, which requires a heightened government interest and means narrowly tailored to that interest. Finally, Fourth Amendment doctrine has been developed largely in the context of criminal prosecutions, in which both the claimants and the relief available tend to generate judicial antipathy.

In other words, we should not expect the Fourth Amendment to pull double constitutional duty, and yet courts routinely act as though it can. The result is that First Amendment freedoms are often at the mercy of a Fourth Amendment doctrine not designed to protect them. The time may have come to fully disentangle the two legal regimes to more fully recognize, as one court has said, that “the First Amendment requires a different analysis, applying different legal standards,” than the Fourth.2

This Essay sketches out that argument. Part I describes the state of surveillance in the United States and its effect on dissent. Part II argues that we should not expect the Fourth Amendment to protect dissent and other First Amendment freedoms against the threat of modern surveillance. And Part III briefly describes how a First Amendment surveillance doctrine might differ from the current Fourth Amendment framework.

Interesting idea, but legally it's a bit of a long shot. Notably, he does not cite a single case where the first amendment has been successfully applied to strike down a government surveillance practice or law.

[Fife]

Interesting idea, but legally it's a bit of a long shot. Notably, he does not cite a single case where the first amendment has been successfully applied to strike down a government surveillance practice or law.

Gonna check this out, thanks. It seems logically attractive off the bat. But you are right about it being a long shot. If we can't get the mosaic theory off the ground to fight the Panopticon, I doubt SCOTUS is going to use the First to do the job.

[Fife]

Why Rely on the Fourth Amendment To Do the Work of the First?

Alex Abdo - 127 YALE L.J. F. 444 (2017)

Government surveillance implicates the freedom of speech as well as the right to privacy, and yet our courts usually evaluate the lawfulness of government surveillance solely through the lens of the Fourth Amendment rather than the First. Is that approach defensible?

This term in Carpenter v. United States, for example, the Supreme Court will consider whether the warrantless and long-term collection of an individual’s “cell site location information,” revealing the movements and locations of the user, violates the Fourth Amendment.1 But the case has clear implications for First Amendment freedoms, too—particularly the ability to express dissent. Dissent’s fragile lifecycle—from formulation to ferment—requires privacy and often confidential association to flourish. Warrantless location tracking threatens these conditions, exposing to the government both the participants that initiate and the private places that incubate dissent. And yet the legal fight in Carpenter and many other surveillance cases is taking place almost entirely on Fourth Amendment grounds.

This trend is problematic because the Fourth Amendment is not up to the task of safeguarding dissent from the threat of new technology. As explored below, the Fourth Amendment differs from the First substantially in both its coverage and the strength of its protections. First, Fourth Amendment doctrine addresses invasions of privacy, not speech, and has been held to ignore a whole class of surveillance—the collection of third-party records—with significant implications for expression. Second, unlike the First Amendment, the Fourth Amendment is often blind to the cumulative effect of invasions of privacy that are small in isolation but substantial in combination. Third, and relatedly, the Fourth Amendment tends to focus narrowly on individual harms, not collective or societal ones. Fourth, even when it does apply, the Fourth Amendment offers much weaker protection than does the First, which requires a heightened government interest and means narrowly tailored to that interest. Finally, Fourth Amendment doctrine has been developed largely in the context of criminal prosecutions, in which both the claimants and the relief available tend to generate judicial antipathy.

In other words, we should not expect the Fourth Amendment to pull double constitutional duty, and yet courts routinely act as though it can. The result is that First Amendment freedoms are often at the mercy of a Fourth Amendment doctrine not designed to protect them. The time may have come to fully disentangle the two legal regimes to more fully recognize, as one court has said, that “the First Amendment requires a different analysis, applying different legal standards,” than the Fourth.2

This Essay sketches out that argument. Part I describes the state of surveillance in the United States and its effect on dissent. Part II argues that we should not expect the Fourth Amendment to protect dissent and other First Amendment freedoms against the threat of modern surveillance. And Part III briefly describes how a First Amendment surveillance doctrine might differ from the current Fourth Amendment framework.

Interesting idea, but legally it's a bit of a long shot. Notably, he does not cite a single case where the first amendment has been successfully applied to strike down a government surveillance practice or law.

The Supreme Court’s Opportunity to Legalize Privacy

Drawing upon a property and contract-based conception of privacy, I’ve argued that the doctrine of illegal contract makes the third-party doctrine, as originally conceived, superfluous. I hope others will see that this common-law doctrine provides the Court with a principled reason—one firmly rooted in our legal traditions—to limit the third-party doctrine to criminal contexts, and to stop treating the rest of us like criminals.

This approach would also be consistent with the property-based conception of the Fourth Amendment that Justice Scalia was developing in the years before his death. Justice Gorsuch, please pick up Scalia’s mantle in Carpenter and help the Court to legalize privacy. This opportunity expires soon.

Oral argument set for tomorrow I believe.

However the vote turns out, I can't wait to read Gorsuch's opinion.

[Fife]

https://www.google.com/amp/www.scotusbl ... cords/amp/

[SuburbanFarmer]

Initial signs are encouraging... We'll see how this plays out, though.

[de officiis]

The Cake Is Just the Beginning

On Tuesday, the Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that centers on an anti-gay baker in Colorado who claims a First Amendment right to ignore state law and refuse service to same-sex couples. A key issue in Masterpiece is just how far the court’s conservative justices are willing to go in subverting civil rights law to protect the freedom to discriminate. And during Tuesday’s arguments, Justice Neil Gorsuch proposed a radical new theory that could fatally undermine legal protections for minorities in all 50 states.

Gorsuch’s startling proposal arrived midway through arguments, as Colorado Solicitor General Frederick Yarger defended the state’s civil rights commission. Yarger was attempting to explain why Colorado’s treatment of Jack Phillips, the baker, did not run afoul of his rights to free speech or free exercise of religion. Gorsuch jumped in with “a quick question about the remedy” that Colorado imposed on Phillips after finding that he had violated state nondiscrimination law.

Gorsuch, with a look of grave concern, said:

As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff, and it didn’t order him to attend a class of the government’s own creation or anything like that, but to provide comprehensive staff training.

Why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory.

Yarger, who seemed befuddled by the question, responded honestly, telling Gorsuch that “a training requirement is a common remedy that is used in many civil rights cases.” The justice, however, pressed on.

“But this isn’t attending your training, Mr. Yarger,” Gorsuch said. “This order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak.”

By this point, Yarger looked genuinely alarmed. And rightfully so: Gorsuch had essentially declared that a law which requires managers to teach their employees about the requirements of nondiscrimination law violates the First Amendment. If that’s true, then a wide range of civil rights law is at least partly unconstitutional. Many of these statutes obligate employers to inform workers of their duties under state and federal law. That includes training on discrimination: Supervisors must instruct employees not to engage in harassment, unlawful refusal of service, and a broad range of identity-based mistreatment.

The courts have long held that the government can prohibit this kind of discrimination in a professional environment—and require private employers to enforce these prohibitions—consistent with the First Amendment. Civil rights laws impose only an incidental burden on expression; their purpose is to guarantee equality in public accommodations and the workplace, not to censor speech. The government is not constitutionally precluded from forcing businesses to maintain policies of fairness and inclusion simply because these rules may compel or suppress expression in a commercial setting.

Gorsuch’s theory would hobble this nondiscrimination regime by preventing the government from directing employers to tell employees about their rights and responsibilities under law. And for good reason: A hotel supervisor who believes that interracial relationships are sinful could refuse to tell her employees that they must let mixed couples book rooms. A restaurant manager with spiritual objections to interfaith marriage could decline to train her employees in their legal duty to serve customers without regard to religion. According to Gorsuch, these employers hold a First Amendment right not “to speak in ways that maybe offend [their] religion.” Thus, they must be excused from telling their employees about civil rights law to which they object.

This same exemption would almost certainly apply in the employment discrimination context as well as in public accommodations. Currently, supervisors open themselves to liability when they fail to educate employees about legal proscriptions on discrimination, including harassment. Gorsuch’s rule would let supervisors ignore these requirements if explaining them would violate their sincerely held beliefs. A manager with misogynistic religious views could therefore refuse to instruct employees to treat their female colleagues equally, citing his beliefs about women’s inferiority. After all, under Gorsuch’s framework, the law is “compel[ling] him to speak” in contravention of his conscience.

As Yarger promptly explained to Gorsuch, this vision of Phillips’ obligation under Colorado law grossly overestimates the burden imposed upon his freedom of speech. “All that is required in these training sessions,” Yarger said, “is a demonstrated understanding of the Colorado Anti-Discrimination Act. It has nothing to do with a particular person’s belief. It has to do with ensuring that the conduct that was found discriminatory.” But that response did not please Justice Anthony Kennedy.

“Part of that speech,” Kennedy asserted, “is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family … who are the employees.”

Finally, Justice Ruth Bader Ginsburg jumped in to save Yarger, telling him: “His belief is his belief. All he has to instruct [his family] is this is what the law of Colorado requires.”

Yet neither Gorsuch nor Kennedy appeared to be appeased. Both justices still seemed to think that Colorado had forced Phillips to spew state propaganda to his family by directing him to implement a nondiscrimination policy. Gorsuch, in particular, gave the impression that he views basic training in civil rights law as a violation of employers’ First Amendment rights. If the court adopts his theory—and it could, given Kennedy’s apparent support—it would not merely undercut LGBTQ protections. Its decision could also sabotage the nondiscrimination protections that have governed American businesses for decades, handing religious employers a tool to flout civil rights law in the name of free speech.

[SuburbanFarmer]

While it would be nice to do away with 80% of HR departments in the country, I don’t look forward to attending a mandatory government class on discrimination.

[heydaralon]

While it would be nice to do away with 80% of HR departments in the country, I don’t look forward to attending a mandatory government class on discrimination.

HR is one of the most repulsive and useless appendages of corporate life. They are about as helpful as a case of Hep C. I honestly can't think of a situation that HR did not make worse.

[SuburbanFarmer]

While it would be nice to do away with 80% of HR departments in the country, I don’t look forward to attending a mandatory government class on discrimination.

HR is one of the most repulsive and useless appendages of corporate life. They are about as helpful as a case of Hep C. I honestly can't think of a situation that HR did not make worse.

Agreed. Now picture a government HR system.