As this case came to us, the principal question it presented was whether to overrule Abood: The petitioners devoted the lion’s share of their briefing and argument to urging us to overturn that nearly 40-year-old precedent . . . . Today’s majority cannot resist taking potshots at Abood, but it ignores the petitioners’ invitation to depart from principles of stare decisis. And the essential work in the majority’s opinion comes from its extended (though mistaken) distinction of Abood, not from its gratuitous dicta critiquing Abood’s foundations. That is to the good—or at least better than it might be. The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision. — Justice Elena Kagan, dissenting in Harris v. Quinn (2014)
Rebecca Friedrichs (credit: Greg Schneider, AP)
Before this Term came to its end, the Court agreed to hear Friedrichs v. California Teachers Association, et al. The issues in the case are:
Whether in light of Harris v. Quinn (2014) Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
A three-judge panel of the Ninth Circuit summarily affirmed the District Court’s ruling against the Petitioners and their First Amendment claims. Acting on behalf of Rebecca Friedrichs and others, the Center for Individual Rights thereafter petitioned the Supreme Court to hear the case, which the Justices agreed to do yesterday. Relying on the First Amendment, that suit challenged California’s “agency shop” laws, which require public employees to pay union dues as a condition of employment.
Michael Carvin, lead counsel for Petitioners
“At the center of the test case before the Court,” wrote SCOTUSblog’s Lyle Dennisotn, “is a practice that labor unions consider essential to their very survival: the ability to draw some financial support from all workers in a unit covered by a union contract, whether they belong to the union or not. Because unions have a binding legal duty to act in the interest of all workers included in the unit, the labor organizations want to collect fees even from ‘free riders,’ as they call non-union workers. . . . [T]he Abood decision,” he added, “is the direct target of the new Friedrichs case. The lawyers who developed that case contend that everything a public-employee union does is an attempt to influence public policy, so non-union members should not have to pay any fees to support the union, if they have a personal objection.”
By much the same logic, if the Court declines to rule in their favor on the first issue, Petitioners also argue that non-union public employees should not be required to pay fees to support union collective bargaining activity unless they expressly opt in to do so (an not the other way around).
Effectively, such a decision would convert the twenty-six states that now require union membership into open-shop states. — Center for Individual Rights
→ Counsel: Michael Carvin filed the petition for certiorari (see here re Reply Brief). Jeremiah Collins filed a brief in opposition on behalf of the California Teachers Association. California’s Attorney General, Kamala Harris, filed a brief on behalf of the Respondents (see here re Reply Brief).
Looking Back to Harris v. Quinn (2014)
→ Before joining the Georgetown Law faculty Neal Kumar Katyal was one of the lawyers on the Petitioners’ merits brief in Harris. Before that he was one of the lawyers for the Petitioner in Knox v. Service Employees Int’l Union, Local 1000 (2012) (see brief here).
→ Mr. Carvin had also filed an amicus brief in Harris v. Quinn in which he argued that Abood should be overruled. Among others, a contrary position was advanced in an amicus brief filed in Harris on behalf of labor law professors (Professor Charlotte Garden, counsel of record).
In Friedrichs amicus briefs were in filed in support of the Petitioners by the Cato Institute, Constitutional Law Professors, Pacific Legal Foundation, Michigan and Eight other States, and the National Right to Work Legal Defense Fund, among others.
Rebecca Friedrichs
Americans of all political preferences would rise up against such tyranny if their rights were squelched by corporations, yet teachers unions have been legally trampling the free-speech rights of teachers throughout our nation for decades through forced dues used to fund their one-sided political agendas. This practice is unconscionable; especially considering that unions are tax-free “corporations” who long ago abandoned the individual rights and desires of their members. — RF, “Teachers stand against tyranny,” Orange County Register, February 16, 2014
→ SCOTUSblog Symposium on Harris v. Quinn (contributors: Catherine Fisk, Tom McCarthy, Samuel Gedge, Charlotte Garden, Terry Pell, Jason Walta, Samuel Bagenstos, and John Eastman).
Washington State High Court: First Amendment protects profanity against police
Associate Chief Justice Charles W. Johnson
The case is Washington v. E.J.J. (Wa. Jun2 25, 2015). The facts involved a situation where the Defendant, then 17 years old, called police officers abusive names, yelling, and using profanity toward them while they were engaged in a criminal investigation. In an opinion by Associate Chief Justice Charles Johnson, the Washington Supreme Court held that there was “insufficient evidence to support the conviction and that E.J.J.’s words directed at the officers areconstitutionally protected.” There were separate concurring opinions by Chief Justice Barbara Madsen and Justice Steven C. González
Facts: “This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out o f the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, throughwhich someone could see out and communicate through, and a second, solid wood door. . . E.J.J. [stood] behind [a] closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.”
→ Majority opinion: In his majority opinion, Associate Chief Justice Johnson noted that “[g]iven the important First Amendment rights at stake, we are required to engage in a careful review of the record to ensure that E.J.J.’s conviction could not have been based on speech alone. This analysis is consistent with the United States Supreme Court’s holding in Street v. New York (1969).” By that constitutional measure, “this case turns on whether the record suggests that E.J.J. was convicted of obstruction based solely on his words.” In examining the relevant facts, the Associate Chief Justice emphasized that in “the First Amendment context, we must be vigilant to distinguish between obstruction and inconvenience.” In this case, the majority opinion found insufficient evidence of actual criminal obstruction.
Johnson also stressed that “obstruction statutes may not be used to limit citizens’ right to express verbal criticism, even abusive criticism, at police officers. The United States Supreme Court recognized this protection in City of Houston v. Hill (1987).” Relying on Hill and other precedents, Johnson concluded: “Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment.” (Five Justices signed onto the Johnson opinion).
→ The Madsen Concurrence: “. . . Given the testimony of the witnesses and the inferences in favor of the state on sufficiency review, there is ample evidence of E.J.J.’s obstructive conduct to affirm his conviction for obstructing a law enforcement officer. Because this case presents a well-settled point of law regarding sufficiency of the evidence to sustain a conviction, the only reason for this court’s review is because it has been called to the court’s attention that the crime of obstruction is used disproportionately to arrest people of color. Thus, despite the fact that sufficient evidence supports the conviction under the current law, I believe this court must take this opportunity to add a common law requirement to the obstructing statute to ensure its constitutional application as follows: where the officer’s conduct substantially contributed to the escalation of the circumstances that resulted in the arrest for obstruction, the state has failed to meet its burden to show that the defendant willfully hindered, delayed, or obstructed a law enforcement officer in the discharge of his or her official powers or duties. Under this common law requirement the State would be required to prove that the defendant’s obstructing conduct was not substantially produced by the officer’s escalating conduct. This additional requirement is necessary because our system ofjustice cannot condone disparate treatment of the people we serve, based on race, through the use of obstruction statutes. Applying this requirement here, E.J.J.’s conviction must be reversed. . . . ” (Three Justices signed onto the Madsen concurrence).
→ The González concurrence: ” . . . I started by saying this case is about Liberty in context. The real context is not subsequent events in Missouri or New York. The context is that E.J.J. is a young black man in a city where the police have been found by the United States Department of Justice (DOJ) to use excessive force against nonviolent black youth, especially when intoxication or mental health issues are involved, and that the charge of obstruction is used against black defendants disproportionately. Even if the officers who responded to E.J.J.’s family that night are unfairly painted by the DOJ’s brush, E.J.J. had cause to be concerned for his sister and a right to observe, especially from inside his own home. . . .”
“As the American Civil Liberties Union of Washington rightly points out, E.J.J. was not punished for his conduct. E.J.J. was punished because he was watching and speaking when the police did not want him to.“
“E.J.J.’s conviction was not just, and it is not lawful. If the obstruction charge can be used this way, it violates the Liberty we hold so dear. We reverse not despite E.J.J. ‘s actual obstruction of the officers but because his conduct was not criminal. Instead, his Liberty to look at and speak to the police is protected by our constitutions, even if he acted like the juvenile he was at the time.”
→ Counsel for E.J.J.: Lila J. Silverstein, the Washington Appellate Project
→ Related New York Court of Appeals Case: (People v. Gonzales (NY, June 25, 2015)) (finding no violation of disorderly conduct statute for shouting obscenities at police officers in a subway station in Manhattan). See also Nathan Tempey, “Court Affirms It’s Completely Legal To Swear Loudly At Police,” The Gothamist, June 28, 2015
US Still Bans, Suppresses Books Despite the First Amendment
Professor Mark Crispin Miller
That was the headline in a recent news item by Kit O’Connell in the Mint Press News. “‘Open societies are also no stranger to the censorship of contentious novels and historical accounts of controversial events,’ Abby Martin said last year on her show, Breaking the Set. ‘Now, of course, the First Amendment prohibits the outright banning of books by the federal government, but there are many less insidious ways that ‘dangerous content’ is kept off American bookshelves.'”
According to O’Connell, “Martin interviewed Mark Crispin Miller, a professor of Media Studies at New York University, to mark the launch of the “Forbidden Bookshelf,” Miller’s curated collection of suppressed literature. Beginning with five books last June, the collection has grown to 14 titles.”
“‘Hundreds of books on crucial subjects, indispensable subjects, have been undone in one way or another,’ Miller told Martin. ‘Threats of litigation by powerful interests, reviewers freezing out certain titles, or what happens most often is books are written off as conspiracy theory.'”
→ Source: Kit O’Connell, “US Still Bans, Suppresses Books Despite The First Amendment,” Mint Press News, June 29, 2015 (also listing books suppressed)
Former US Attorney General opines on hate speech & the First Amendment
Writing an op-ed in yesterday’s The Hill, former Attorney General Alberto Gonzales, now dean of Belmont University College of Law, addressed the topic of hate speech in connection with a monument in Tennessee. “Many Nashville commuters,” he wrote, “who live to the South travel on Interstate 65 and pass a monument dedicated to Nathan Bedford Forrest, a Confederate general. The odd-looking statute is surrounded by Confederate battle flags and sits on a small parcel of private property adjacent to the highway.” Could such a monument be banned? Dean Gonzales’ op-ed explored that question.
“The government,” he wrote, “could claim that the monument, in particular the Confederate flags around it, is nothing more than racist hate speech, and that such speech falls outside the protection of the First Amendment. Government restrictions on hate speech,” he added, “often fail to survive First Amendment scrutiny because of the difficulties in applying a definition of racist speech that is not unconstitutionally vague and over broad.”
What about applying the “fighting words” doctrine to such expression? “A regulation intended to regulate such speech would not violate the First Amendment,” he noted, though vagueness and overbreadth problems could doom its constitutionality. He also discussed and then dismissed the idea that banning such a monument could be justified under the “true threat” doctrine.
In the end, Mr. Gonzales concluded: “The importance and value of the First Amendment is that it protects speech from government censorship, no matter how racist, hateful or inflammatory. Efforts to limit such speech are not only unconstitutional but unwise, as experience demonstrates such government regulation is eventually most likely to be used against minorities.”
Missouri priest calls on parishioners to exercise First Amendment rights
According to a CBS KFVS June 30th news report: “After the Supreme Court ruling in favor of gay marriage and recent calls to remove the confederate battle flag from sight, some people are questioning where they can express their opinions.”
“A Cape Girardeau priest said [Defend the First Amendment] signs promote freedom of religion and encourage Christians to respectfully express their beliefs openly. The signs represent the ‘Fortnight of Religious Freedom,’ a time when Catholics remember saints who were martyred for holding true to their faith and principles.
“Father David Hulshof said everyone has the right to the First Amendment, even in the face of political and religious differences. . . .”
Categories of unprotected speech: How would you answer this question?
“[I]f you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?” — question posed to then Deputy Solicitor General Neal Katyal by Chief Justice John Roberts during oral arguments in United States v. Stevens (Oct. 6, 2009).
Forthcoming Books
Mary M. Cronin, editor, An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (Southern Illinois University Press, forthcoming April 2016)
Donna Haverty-Stacke, Trotskyists on Trial: Free Speech and Political Persecution Since the Age of FDR (NYU Press, January 8, 2016)
Publisher’s Abstract
Passed in June 1940, the Smith Act was a peacetime anti-sedition law that marked a dramatic shift in the legal definition of free speech protection in America by criminalizing the advocacy of disloyalty to the government by force. It also criminalized the acts of printing, publishing, or distributing anything advocating such sedition and made it illegal to organize or belong to any association that did the same. It was first brought to trial in July 1941, when a federal grand jury in Minneapolis indicted twenty-nine Socialist Workers Party members, fifteen of whom also belonged to the militant Teamsters Local 544. Eighteen of the defendants were convicted of conspiring to overthrow the government. Examining the social, political, and legal history of the first Smith Act case, this book focuses on the tension between the nation’s cherished principle of free political expression and the demands of national security on the eve of America’s entry into World War II.
Based on newly declassified government documents and recently opened archival sources, Trotskyists on Trial explores the implications of the case for organized labor and civil liberties in wartime and postwar America. The central issue of how Americans have tolerated or suppressed dissent during moments of national crisis is not only important to our understanding of the past, but also remains a pressing concern in the post-9/11 world. This volume traces some of the implications of the compromise between rights and security that was made in the mid-twentieth century, offering historical context for some of the consequences of similar bargains struck today.
Professor Leslie Kendrick
Two New Scholarly Articles by Leslie Kendrick
Leslie Kendrick, “Nonsense on Sidewalks: Content Discrimination in McCullen v. Coakley,” Supreme Court Review (2015)
Leslie Kendrick, “First Amendment Expansionism,” William & Mary Law Review (2015)
New YouTube Posts
Tom W. Bell, “Freedom of Speech: How Is Offensive Speech Good For Society?” (Learn Liberty series)
Deirdre McCloskey, “This Prof. will Challenge your Perspective on Free Speech,” (Learn Liberty series)
James Otteson, “Freedom Requires Whistleblowers: The Importance of Transparency” (Learn Liberty series)
Interview with Scott Rasmussen, “Scott’s Take: Free Speech on the Internet“
News, Op-eds., Commentaries & Blog Posts
→ Mateusz Perkowski, “‘Ag gag’ opponents point to free speech ruling,” Capital Ag Press, June 30, 2015
→ Charles Hayes, “Illinois teacher fired for stepping on US flag during free speech lesson,” WGNTV, June 30, 2015
Christine Breyers, “Justice Department faults Ferguson protest response,” St. Louis Post-Dispatch, June 30, 2015 (“Police trying to control the Ferguson protests and riots responded with an uncoordinated effort that sometimes violated free-speech rights, antagonized crowds with military-style tactics and shielded officers from accountability, the Justice Department says in a document obtained Monday by the Post-Dispatch.”)
“Feds: Police violated free-speech rights during Ferguson unrest,” CBS, June 30, 2015
Alexei Oreskovic, “Twitter’s CEO signs off with a warning: ‘regulation is a threat to free speech‘,” Business Insider, June 30, 2015
Francis Levy, “When Crying ‘Fire’ Becomes a Slur,” Huffington Post, June 30, 2015
David Moshman, “Free Speech at Connecticut College,” Huffington Post, June 30, 2015
Eugene Volokh, “Supreme Court’s specialty license plate case isn’t limited to Confederate flags,” Volokh Conspiracy, June 29, 2015
“Klayman and NSA/CIA whistleblower Montgomery sue ACLU for unethical acts,” June 30, 2015
Maury Brown, “NASCAR, The Death Of The Confederate Flag, And The First Amendment,” Forbes, June 29, 2015
Mike Masnick, “Newsday Editor: Carve Hate Speech Out Of First Amendment, Hold Websites Responsible If Users Post Hate Speech,” Tech Dirt, June 29, 2015
Mike Lee, “Congress Has a Plan to Defend Your First Amendment Rights After Court’s Marriage Ruling,” The Daily Signal, June 29, 2015
Thomas Peele, “Hayward teacher deserves First Amendment praise for suggesting Curry not visit schools,” Contra Costa News, June 27, 2015
Public Affairs, “Journalism dean addresses First Amendment in Snowden book,” UC Berkeley News, June 25, 2015
The Court’s 2014-2015 Free Expression Docket
[last updated: 6-30-15 — what remains on the docket will either be resolved at “clean up” conference this Term or dealt with in late September when the Court has a “long conference.”]
Cases Decided
Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)
Vacated and Remanded
Berger v. American Civil Liberties Union of North Carolina
Thayer v. City of Worcester
Central Radio Co., Inc. v. City of Norfolk
Review Granted for Next Term
Friedrichs v. California Teachers Association, et al.
Pending Petitions*
Center for Competitive Politics v. Harris
Review Denied*
Walker-McGill v. Stuart
O’Keefe v. Chisholm
King v. Christie
Apel v. United States
Dariano v. Morgan Hill Unified School District
The Bronx Household of Faith v. Board of Education of the City of New York
Arneson v. 281 Care Committee
Kagan v. City of New Orleans
ProtectMarriage.com-Yes on 8 v. Bowen
Clayton v. Niska
Pregnancy Care Center of New York v. City of New York
City of Indianapolis, Indiana v. Annex Books, Inc.
Ashley Furniture Industries, Inc. v. United States
Mehanna v. United States
Stop This Insanity Inc Employee Leadership Fund et al v. Federal Election Commission
Vermont Right to Life Committee, et al v. Sorrell
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.