10th Circuit Reverses Dismissal Of Inmate's 1st Amendment Claims

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court's sua sponte dismissal of a federal pre-trial detainee's pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains' refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Cert. Filed In Pittsburgh Abortion Clinic Buffer Zone Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Bruni v. City of Pittsburgh. In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. In Bruni v. City of Pittsburgh, (3d Cir., Feb. 6, 2019), the court upheld the ordinance by interpreting it to not cover sidewalk anti-abortion counseling. ADF issued a press release announcing yesterday's filing of the petition for review.

Christian Evangelists May Move Ahead With Part of Their Challenges To Restrictions On Them At City Festival

In O'Connell v. City of New Bern, North Carolina, (ED NC, March 10, 2020), a North Carolina federal district court allowed two Christian evangelists to move ahead with certain of their claims of unconstitutional treatment at the city's Mumfest-- an annual fall festival held in the historic downtown district.  The court held that the city did not infringe plaintiffs' 1st Amendment rights in barring them from carrying a nine-foot tall cross, using a loud megaphone to proselytize, or distributing literature, all in violation of city ordinances. The court did however allow plaintiffs to move ahead with their free speech and free exercise challenges to an officer moving them from the roadway to the sidewalk and placing a beeping firetruck and then a beeping utility cart between them and festival attendees who had gathered in the intersection.  The court said in part:

Defendant Conway testified that he ... placed a beeping cart in between plaintiffs and festival attendees because people were “getting aggravated” and “becoming aggressive” towards plaintiffs’ group.... Defendant Conway testified that individuals waived a rainbow flag in plaintiff O’Connell’s face and yelled at him.... In the past, individuals threw Mountain Dew bottles at plaintiff O’Connell, threatened plaintiff O’Connell with violence, and assaulted the police officers guarding plaintiff O’Connell....  Because “[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” the court applies strict scrutiny to defendant Conway’s decision to order plaintiffs to the sidewalk and place a beeping cart between them and festival attendees in 2015.

High School Football Coach's Complaint Over On-Field Prayer Ban Is Dismissed

In Kennedy v. Bremerton Schoool District, (W WA, March 5, 2020), a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games.  The court said in part:

The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator’s right to free religious expression and their school’s right to restrict that expression when it violates the Establishment Clause....

Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.... Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line....

Here, Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause. While it may not convey school approval as universally as a public announcement system, speech from the center of the football field immediately after each game also conveys official sanction. This is even more true when Kennedy is joined by students or adults to create a group of worshippers in a place the school controls access to.

The case, at the preliminary injunction stage, has already worked its way to the U.S. Supreme Court where certiorari was denied, but with an unusual 6-page concurring statement by 4 justices. (See prior posting.) Kitsap Sun reports on yesterday's district court decision.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

Court Dismisses Challenge To City's Refusal To Fly Christian Flag

In Shurtleff v. City of Boston, (D MA, Feb. 4. 2020), a Massachusetts federal district court dismissed a suit challenging refusal by the city of Boston to fly a Christian themed flag on a flag pole outside city hall for a Constitution Day and Citizenship Day event sponsored by plaintiffs. The court held that the city's flag display constituted government speech that is not subject to the strictures of the First Amendment.  It also held that the city's actions did not violate the Establishment Clause or Equal Protection clause. The 1st Circuit Court of Appeals last June affirmed the denial of a preliminary injunction in the case. (Full text of 1st Circuit opinion).

Canadian Court Says University Need Not Discipline Abortion Counter-Protesters

In UAlberta Pro-Life v Governors of the University of Alberta, (Alberta Ct. App., Jan. 6, 2020), an appellate court in the Canadian province of Alberta held that the University of Alberta was not required to discipline counter-demonstrators who held signs and banners that blocked the pro-life displays of an anti-abortion student group. Justice Watson, writing the primary opinion, said in part:

The case at bar does not provide an appropriate opportunity to reach any final conclusion about what a ‘positive’ aspect of freedom of expression might mean. It is one thing to provide equal access to opportunities to express. It is quite another to take steps to ensure that the party exercising the freedom has an optimal chance to persuade other people. The University cannot be expected to guarantee that Pro-Life’s message will persuade anybody. More particularly, one thing it does not mean, in my view, is that the University was required to set its face so much against counter protests that it must prosecute without exception any overshoot potentially governed by the Rules of Student Behaviour.

The court however held that the University was not justified in imposing a $17,500 security deposit for the organization to hold a subsequent event.  It held that the University is subject to Canada's Charter of Rights and Freedoms in regulating freedom of expression by students on campus grounds.

Justice Watson then wrote in part:

While I do not agree that victim blaming is what is involved, there appears to be error here by the University in imposing on Pro-Life the exclusive burden of overcoming problems arising from the fact that their expression might attract an adverse response.

... [I]t cannot be said that Pro-Life should be held 100% responsible for costs that future events might generate. Although the University says the concept of the heckler’s veto is misplaced here, the position for the University escalated the status of potential objectors to not merely being on par with the expresser, but above the expresser’s position.

[Thanks to James Phillips for the lead.]

8th Circuit Hears Oral Arguments In Challenge To State Anti-BDS Law

Yesterday the U.S. 8th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Arkansas Times LP vs. Waldrip.  In the case, an Arkansas federal district court dismissed a challenge to an Arkansas law which requires companies doing business with the state to certify that they are not boycotting Israel. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

Religious Group's Distribution of Vegan Food May Be Expressive Conduct

In Krishna Lunch of Southern California, Inc. v. Gordon, (9th Cir., Jan. 13, 2020), the U.S. 9th Circuit Court of Appeals held that Krishna Lunch had plausibly pleaded that its distribution of sanctified vegan and vegetarian food (prasada) is protected expressive conduct under the 1st Amendment. The court explained:

While distributing prasada, the organization plans on chanting the names of God and other devotional hymns and songs, speaking with interested students and others of the University of California, Los Angeles (“UCLA”) community, distributing religious literature, and displaying signs depicting reincarnation, animal protectionism, and other topics related to its followers’ beliefs. Drawing all reasonable inferences in favor of Krishna Lunch, we can infer that in these circumstances an onlooker would understand the distribution of food “to be communicative.”

However the court dismissed the organization's free exercise claim, finding that UCLA's four-times-per-year policy is neutral and generally applicable, and saying:

Krishna Lunch has not negated every conceivable basis that might support the policy.

No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:

The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

State Senator's Threats Were Not Religious Speech

In Boquist v. Oregon State Senate President Peter Courtney, (D OR, Jan. 7, 2020), an Oregon federal district court rejected claims by Oregon state senator Brian Boquist that his constitutional rights, including his 1st Amendment rights, were violated when state Senate leaders imposed a requirement that he give 12-hours notice before entering the Capitol building. The notice requirement was imposed in reaction to statements made by Boquist that others saw as threatening.  All of this occurred during a political battle in which Republican senators left the Capitol in order to prevent a quorum from being present in the Senate, and the governor ordered state police to arrest them and bring them back. Rejecting Boquist's 1st Amendment claims, the court said in part:

While both sides can point fingers and complain that the other is overreacting to a political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).... Remarkably, Plaintiff argues that his statement to Defendant Courtney— “if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a statement of religious expression.... But here, Plaintiff seems to overlook the fact that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.... Plaintiff made this statement in anticipation of his potential arrest, not during a religious discussion. Plaintiff also said that if the State Police were to arrest him, they should “send bachelors and come heavily armed.”... These statements, apart and together, resonate more as threats than the expression of theological ideas.

The Oregonian reports on the decision.

Suit Challenges Postal Service's Rules On Content of Customized Stamps

Suit was filed earlier this month in a Texas federal district court challenging the constitutionality of a portion of the U.S. Postal Service's regulation (39 CFR §501.21) that limits the depictions that may be placed on customized postage stamps produced by private providers authorized by USPS. The regulation limits, among other things, "Any depiction of political, religious, violent or sexual content".  The complaint, (full text) in Fletcher v. U.S. Postal Service, (ED TX, filed 12/19/2019), contends that plaintiff's free speech and free exercise rights (including her rights under RFRA) are violated because she will be unable to create personalized postage stamps that allow her to share her love of Christmas and other holidays through PhotoStamps.com's website.  According to the complaint:

16. The website also requires customers to agree that Stamps.com, in its sole discretion, may determine if designs meet the eligibility criteria and may also reject orders without explanations. If customers submit a design Stamps.com determines is in violation of their requirements, those customers may be charged a processing fee of $10 per image.

17. If customers publicly complain about the rejection of a stamp design, Stamps.com claims it will be harmed and may pursue legal action. The website states, “[if] you intentionally publicize such violation, you acknowledge that Stamps.com will suffer substantial damage to its reputation and goodwill and that you can be liable for causing such substantial damage.”

The complaint goes on to allege that:

... USPS chose to promulgate a regulation allowing third-party providers, such as PhotoStamps, to discriminate against speech. Regulation 39 C.F.R. § 501.7(c)(1) requires the provider—here, PhotoStamps—to ensure that what it prints is “[c]onsistent with the Postal Service’s intent to maintain neutrality on religious, social, political, legal, moral, or other public issues.”

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Suit Filed Against Synagogue Picketers

A lawsuit was filed last week in a Michigan federal district court against protesters who, every Saturday for the last 16 years, have picketed an Ann Arbor synagogue with anti-Israel and anti-Jewish signs. The 85-page complaint (full text) in Gerber v. Herskovitz, (ED MI, filed 12/19/2019) contends in part:

The conduct of the protesters is infringing on the 1st Amendment right of the congregants to exercise their freedom of religion without being harassed and insulted by the protesters. The City, by its failure to enforce its own Code provisions to curtail the protesters' conduct, is aiding and abetting the protesters harassment of the congregants, thereby making the protesters state actors under 42 U.S.C. §1983 and the protesters and the City co-conspirators under §§ 42 U.S.C. 1983 and 1985(3)....

The 1st Amendment right of free speech does not entitle a speaker to use that right repeatedly as a bludgeon, for weeks and years at a time, in the same location, rather than as a means of legitimate communication in an effort to convey information and persuade others to the speaker's point of view.

M Live reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Supreme Court Review Sought In City Council Speech Limits At Meeting On Mosque

A petition for certiorari (full text) was filed on Dec. 9 with the U.S. Supreme Court in Youkhanna v. City of Sterling Heights. In the case, the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute with backers of a mosque.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive. (See prior posting.)

Court Dismisses Challenges To NY Repeal of Religious Exemption From Vaccination Requirement

In F.F. on behalf of her minor children v. State of New York, (Albany Cty NY Sup. Ct., Dec. 3, 2019), a New York state trial court upheld New York's repeal of the religious exemption to the state's compulsory vaccination requirement for school children.  The court rejected Free Exercise, Free Speech and Equal Protection challenges to the repeal.  The suit was brought by some 55 families of school children. In rejecting free exercise claims by plaintiffs, the parents of school children, the court rejected their argument that the object of the law was to target religion rather than protect public health.  The court went on to say in part:

[P]lainitffs most strenuous argument for applying strict scrutiny is that the repeal of the legislation was infected by statements made by individual legislators whose comments, they say, demonstrate unconstitutional hostility toward plaintiffs' sincerely held religious beliefs.  For this argument, Plaintiffs cite Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n., (138 S Ct 1719 [2018]), where the Supreme Court relied on the comments of individual members of the Colorado Civil Rights Commission, which sanctioned a baker for his refusal to make a wedding cake for a same sex couple....

This Court declines to extend that part of the Supreme Court's analysis in Masterpiece Cakeshop, which probed the comments of individual members of a decision-making body to the collective decision-making of New York State's Legislature and Executive.... [I]n Masterpiece Cakeshop, the Court considered the remarks of a seven-member administrative body, not a state legislature.

The trial court had previously denied a preliminary injunction against the exemption repeal (see prior posting), and the state appellate court summarily affirmed that decision. Albany Times-Union reports on the trial court's latest decision.

Supreme Court Denies Review Of Kentucky Ultrasound Informed Consent Law

The U.S. Supreme Court today denied review in EMW Women’s Surgical Center v. Meier, (Docket No. 19-417, certiorari denied 12/9/2019). (Order List). In the case, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. The law requires a doctor to make the fetal heartbeat audible, and to display and describe ultrasound images, to a woman seeking an abortion. (See prior posting.) CNN reports on the Court's action.

British Court Enjoins Protests Against School's LGBT Curriculum

In Birmingham City Council v. Afsar, (EWHC, Nov. 26, 2019), a trial judge in the High Court in the British city of Birmingham held that an injunction should be issued limiting the manner in which demonstrators can protest an elementary school's curriculum on LGBT issues. According to the court:

The case has been pleaded and argued in various ways, but at its heart is the argument that the School’s teaching policy – described by the defendants as “the teaching of LGBT issues (ie teaching equalities)” – represents or involves unlawful discrimination against British Pakistani Muslim children at the School, and those with parental responsibility for them ... on grounds of race and/or religion. It is submitted that the core religious, philosophical and cultural values of this group “are centred on heterosexual relationships in marriage; this state of belief does not encompass same sex relationships”. ....

The court held that the Equality Act 2010 excludes from its coverage anything done in connection with the content of curriculum. In any event, the court concluded:

The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful. 

The court went on:

The evidence – including but not limited to the expert evidence - persuades me that the levels of noise generated by this way of protesting is clearly excessive, amounting to an intrusion into the lives of those at the School and its neighbours that goes well beyond anything that could be justified as proportionate to the aims of persuasion. 

The court held, however, that an earlier injunction banning the use of social media by protesters should be lifted, saying in part:

The speech with which I am here concerned has been expressed in the context of a private, or limited, WhatsApp group. It was not aimed at the teachers, in the sense that they were intended to read it. It has come to their attention only as a result of disclosures made by one or more members of that group. The scale, frequency, nature and impact of the abuse to date, given its context, do not give rise to a sufficiently compelling case for interference.

The court also issued a summary of the decision. The British publication Conservative Women published an article highly critical of the decision.

Court Rejects Parents' Objections To Vaccination Exemption Form

In W.B. v. Crossroads Academy- Central Street, (WD MO, Nov. 22, 2019), a Missouri federal district court rejected constitutional challenges by parents to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. In rejecting the parents' challenge, the court said in part:

Although the Bakers say they have religious scruples against  vaccination, they are not entitled to insist on governmental silence rather than advocacy....

The parental signature at the bottom of the religious exemption form serves to verify the required parental inserts of the child’s name, the types of vaccination objected to, and the grounds for the exemption, simply asserted as “religious.” Filling in, signing and submitting the form in no way comments on or endorses the State’s message....

The nearest legal problem area may be in the contention that contraception opponents should not be required to be “complicit” in the procedure by filing exemption forms. See, Wheaton College v. Burwell, 573 U.S. 958 (2014). In this situation, however, the filing of forms does not advance vaccination use but simply results in an exemption.

Kansas News Service reports on the decision.