Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Holds California's FACT Act Violates Speech Rights of Pro-Life Clinics

The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018).  At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed.  Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:

... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.

The majority then went on to largely reject the 9th Circuit's conclusion that  strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:

... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...

This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Turning to the required disclosures for unlicensed centers, the Court said in part:

California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”

A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:

... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, saying in part:

Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

Supreme Court Vacates and Remands Arlene's Flowers Case

The U.S. Supreme Court today in Arlene's Flowers, Inc. v. Washington, (Docket No. 17-108, vacated 6/25/2018), (Order List), granted certiorari, vacated the judgment below and remanded the case to the Washington Supreme Court in light of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.  In the Arlene's Flowers case, the state of Washington's Supreme Court had upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting).

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Challenge May Proceed Against School Policy of Disciplining Students Who Refuse To Recite Pledge

In Arceneaux v. Klein Independent School District, (SD TX, May 22, 2018), a Texas federal district court allowed a high school student to move ahead with her free speech, free exercise, and equal protection challenges to a school policy of disciplining and harassing students for sitting during the Pledge of Allegiance.

Supreme Court In Narrow Decision Reverses Order Against Wedding Cake Baker

Today, by a vote of 7-2, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (Sup. Ct., June 4, 2018), reversed on narrow grounds a Colorado appellate court's decision upholding the state Civil Rights Commission's cease and desist order against a baker who refused on religious grounds to create a wedding cake for a same-sex couple.  The Supreme Court's majority decision, written by Justice Kennedy, focused on what was seen as the unfairness of the hearing provided to the baker by the Commission, and the difference between this case and the approach in others decided by the Commission:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

In reaching that conclusion, the Court acknowledged the difficulties involved in deciding the broader issues posed by the case:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.... 

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of  possibilities that seem all but endless.

Justice Kagan filed a concurring opinion joined by Justice Breyer.  Justice Gorsuch filed a concurring opinion joined by Justice Alito.  Justice Thomas filed a opinion concurring in part, joined by Justice Gorsuch.

Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion arguing that there was not sufficient evidence of unfair hostility by the Commission to the baker's religious beliefs.

Politico reports on the decision, as does SCOTUSblog.

6th and 7th Circuits Reject Challenge To "In God We Trust" On Currency

The U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected claims by a group of plaintiffs-- atheists, humanists and one Jewish plaintiff-- that statutes requiring placing of the national motto, In God We Trust, on currency violates RFRA, as well as protections of free speech, free exercise and equal protection.  In Doe v. Congress of the United States, (6th Cir., May 29, 2018), the majority said in part:

Plaintiffs’ allegations indicate that at least some legislators who voted to enact the currency statutes intended to promote a Christian monotheistic message. However, intent to promote one religion is not necessarily intent to suppress another; Plaintiffs’ allegations do not show a specific governmental intent to infringe upon, restrict, or suppress other religious beliefs. Plaintiffs argue that the currency statutes nonetheless effect suppression of Atheist beliefs by requiring the Government to constantly spread speech that is akin to “Atheists Are Wrong.” But the incidental effect of suppression is permissible under the Free Exercise Clause absent restrictive intent: The laws must have been “enacted because of, not merely in spite of their suppression.”

Judge Moore, dissenting in part, contended that:

All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA....

[T]he thirty-nine plaintiffs who allege that they are required to utilize coins and cash on a regular basis have sufficiently alleged that they face an untenable choice between violating their religious beliefs or being excluded “from full participation in the economic life of the Nation,”

In Mayle v. United States, (7th Cir., May 31, 2018), the U.S. 7th Circuit Court of Appeals held that neither the Establishment clause nor RFRA, nor the free speech clause, is violated by the printing the national motto, "In God We Trust", on currency, saying in part:

The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation’s religious heritage.

In rejecting the claim of plaintiff Kenneth Mayle, an adherent of non-theistic Satanism, the court said in part:

Mayle argues that having the motto printed on currency forces him to choose between using cash, a necessary part of life, and violating his sincerely held religious beliefs. Using the currency makes him feel “guilt, shame and above all else fear,” and those feelings, he contends, qualify as a substantial burden. He likens himself to a fundamentalist Christian baker who would be forced to endorse gay marriage—a practice that violates his religious beliefs—by selling a couple a wedding cake. This term the Supreme Court is considering that baker’s case.... No matter how that case is decided, however, no reasonable person would believe that using currency has religious significance....  [B]ecause using money is not a religious exercise, and the motto has secular as well as religious significance, Mayle has not plausibly alleged that the motto’s placement on currency increases the burden on practicing Satanism.... Mayle’s feelings are not insignificant, but the burden he experiences is not substantial.

British Musician On Trial For Holocaust Revsionist YouTube Postings

Press Association reported yesterday on the trial in Britain of musician Alison Chabloz who is charged with sending grossly offensive Holocaust Revisionist material on a public communications network.  Chabloz, who is being tried in the Westminster Magistrates’ Court, is charged with 5 counts growing out of her posting on YouTube of videos of three songs she wrote.  Chaboz's attorney is raising a free speech defense. The judge's verdict will be handed down on May 25.  Meanwhile Chaboz is out on bail.

University of Michigan Sued Over Anti-Bias Rules

A lawsuit was filed yesterday in Michigan federal district court against the University of Michigan challenging provisions in its disciplinary code prohibiting harassment, bullying and bias-related conduct, and enforcement of these provisions by the University's Bias Response Team. The lawsuit contends that the "amorphous prohibitions" in the conde "profoundly chill free speech and open discourse." The complaint (full text) in Speech First, Inc. v. Schlissel, (ED MI, filed 5/8/2018), alleges in part:

The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing  women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion....

The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.”

The College Fix reports on the lawsuit.

HHS Investigating Legality of Hawaii Notice Requirements For Pregnancy Clinics

An ADF press release on Monday reports that the Office of Civil Rights of the U.S. Department of Health and Human Services has initiated an investigation on behalf of A Place for Women, a limited service pregnancy center in Hawaii.  At issue is the requirement in Hawaii Act 200 enacted last year requiring such centers to disseminate on-site to patients a notice that says in part:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.

The letter from HHS to ADF, which filed a complaint with it, says in part:

Under federal regulations, OCR is designated to receive complaints based on federal laws that protect conscience and prevent coercion, including the Weldon Amendment, the Coats-Snowe Amendment, and the Church Amendments.  OCR has reviewed the Complaint and has determined that it has sufficient authority and cause to investigate the allegations under one or more of these laws.

Court Refuses To Dismiss Challenge To Town's Settlement Agreement On Mosque Construction

In Quick v. Township of Bernards, (D NJ, April 30, 2018), a New Jersey federal district court denied defendant's motion to dismiss a lawsuit challenging a settlement agreement entered by the Township of Bernards to settle a dispute over construction of a mosque in the Township.  Under the settlement agreement, a new Planning Board hearing on permitting construction of the mosque was to be held.  One of the stipulations, however, was that at the hearing "No commentary regarding Islam or Muslims will be permitted." (See prior posting).  Plaintiffs contend that this is an unconstitutional suppression of speech based on its content and viewpoint, is a prior restraint on speech, denies plaintiffs procedural due process, violates the Establishment Clause by favoring Islam over other religions, and violates the 1st Amendment's petition clause. New Jersey Law Journal reports on the decision.

Abortion Protester's Bomb Prophecy Was Not A "True Threat"

Thames v. City of Westland, (ED MI, April 20, 2018) is a suit by a pro-life advocate who was arrested and held over the weekend on charges of making a terrorist threat while protesting at an abortion clinic.  Kimberly Thames, while picketing the clinic, allegedly said "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future."  A Michigan federal district court concluded that an issue of fact exists as to whether officers had probable cause to arrest Thames:

Mich. Comp. Laws § 750.543m only criminalizes “true threats” which involve a “serious expression of an intent to commit an act of unlawful violence,”.... In the vague context allegedly used by Thames, at least a jury question exists as to whether it amounts to a true threat.

The evidence suggests that Defendant Officers did not consider the statement to be a true threat as they did not direct evacuation of the clinic, did not request the assistance of a bomb squad, did not request the assistance of a bomb sniffing dog, did not search the clinic for a bomb, did not search the surrounding area for a bomb, did not search the adjacent parking lot for a bomb, did not search the dumpster for a bomb, and did not impound Thames’ vehicle for fear that a bomb might be planted in it.

The court denied motions for summary judgment on wrongful arrest, retaliatory arrest (as to some defendants) and equal protection claims.

Cert. Denied In Abortion Protester's Case

Last Monday, the U.S. Supreme Court denied review in March v. Mills, (Docket No.17-689, cert. denied 4/16/2018) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  The appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." (See prior posting.)  AP reported on the Supreme Court's denial of certiorari. [Thanks to Tom Rutledge for the lead.]

6th Circuit: Ohio's Cutoff of Non-Abortion Funding To Planned Parenthood Is Unconstitutional

In Planned Parenthood of Greater Ohio, Inc. v. Himes, (6th Cir., April 18, 2018), the U.S. 6th Circuit Court of Appeals held unconstitutional a 2016 Ohio law aimed at Planned Parenthood.  ORC §3701.34 prohibits the Ohio Department of Health from channeling funds it receives through six non-abortion-related federal health programs to any entity that performs or promotes nontherapeutic abortions, or which is affiliated with any entity that performs or promotes such abortions.  The appeals court held that the district court correctly applied the unconstitutional conditions doctrine in enjoining enforcement of the law, saying that "the unconstitutional-conditions doctrine is not limited to First Amendment rights."  According to the court, the question posed in this case is

whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion. 

The court concluded:

Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions. 

 The court also held that the law imposes unconstitutional conditions on speech by prohibiting funds from going to any entity that promotes abortion:

§3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside the six government programs the statute funds.

Columbus Dispatch, reporting on the decision, pointed out that two of the three judges handing down the ruling were Republican appointees. It also reports that the state Attorney General's office is reviewing the decision to determine whether it should seek en banc review or appeal to the U.S. Supreme Court. [Thanks to Tom Rutledge and Scott Mange for the lead.]

Refusal of "IM GOD" License Plate Can Be Challenged In Federal Court

In Hart v. Thomas, (ED KY, March 30, 2018), a Kentucky federal district court rejected an 11th Amendment sovereign immunity defense raised by the Secretary of the Kentucky Transportation Cabinet in a suit over an application for a personalized license plate.  Plaintiff Bennie Hart had applied for a license plate reading "IM GOD", to reflect his philosophy about religion.  Kentucky refused to issue the plate on the ground that it is offensive to good taste.  Hart sued contending that his First Amendment free speech rights were infringed when his application was denied. Friendly Atheist blog has more on the decision.

Cert. Denied In Challenge To City's Removal of Cross

The U.S. Supreme Court yesterday denied certiorari in Dawson v. Grand Haven, MI, (Docket No. 17-1024, cert. denied 4/2/2018). (Order List).  In the case, the Michigan Court of Appeals in Dec. 2016 upheld a decision by the city of Grand Haven to stop display of a cross on a city-owned sand dune.  In the case, Dawson v. City of Grand Haven, the Michigan court had said in part:

More than 50 years ago, the "Dewey Hill monument" was donated to defendant as a memorial for those who served and died in the Vietnam War. The monument was placed on Dewey Hill, a sand dune that defendant owned on the Grand River. The Dewey Hill monument consisted of an elaborate lifting mechanism and foundation that was designed to maintain the sand dune. When the lifting mechanism is raised, a cross is displayed. The cross can be made into an anchor by placing attachments on the bottom and top of the cross. For many years, defendant raised the lifting mechanism to display the anchor or the cross when requested by individuals in the community. For many years, First Reformed Church, where several of the plaintiffs are members, paid the required fee and requested that the cross be displayed for its Worship on the Waterfront services, which were held at the waterfront stage and bleachers across the Grand River from Dewey Hill.

In January 2015, defendant passed Resolution 15-013. Pursuant to the resolution, the lifting mechanism of the Dewey Hill monument could only be raised to display the anchor....

Because the Free Speech Clause does not regulate government speech ..., and because the freedom of government to speak includes the right to removal of speech with which the government disapproves, ... Resolution 15-013, which prohibited the lifting mechanism of the Dewey Hill monument from being raised to show the cross, did not violate the Free Speech Clause.

Grand Haven Tribune reports on yesterday's denial of review by the Supreme Court.

Suit Challenges Air Force's Ban On Religious Flag-Folding Script At Retirement Ceremony

A suit was filed yesterday by two retired Air Force officers against the Air Force and several current officers complaining about action taken by defendants to prevent one of the plaintiffs from reading a religious-themed tribute to the American flag at the retirement ceremony of the other plaintiff.  The complaint (full text) in Rodriguez v. U.S. Department of the Air Force, (D DC, filed 4/2/2018), sets out a lengthy history of flag-folding ceremonies at Air Force retirement events.  It contends that retiring Master Sergeant Charles Roberson  invited retired Master Sergeant Oscar Rodriguez, Jr. to read the flag script Rodriguez had developed (full text), despite orders to the contrary by the Squadron Commander.  Three uniformed Airmen removed Rodriguez from the stage as he began to read his script.  The suit alleges that this violated plaintiffs' free speech and free exercise rights, as well as Rodriguez' Fourth Amendment and Due Process rights. First Liberty issued a press release announcing the filing of the lawsuit.

Pro-Life Supporters Model Protest After Parkland School Walkouts

The pro-life movement has announced plans to piggyback on the student anti-gun violence walkouts that took place in schools around the country after the Parkland, Florida shooting.  Pro-life high school students are planning a similar 17-minute walkout from classes on April 11. As reported by Lifesite News, the idea originated with Rocklin, California high school student Brandon Gillespie after his history teacher was suspended for questioning the anti-gun violence walkout and commenting that the walkout would likely not have been tolerated if it was to protest abortion.  Sponsors of the pro-life march have tied it to the Parkland demonstrations by saying it will "test if there’s a double standard from school administration when it comes to allowing students to protest against destroyers of life and the tools they use."  Yesterday the Thomas More Law Center issued a press release stating that it will provide legal guidance to students planning the walkout, adding:

With the pro-life walk out, Gillespie seeks to answer the question of whether “Not One More” applies to all children, regardless of their age or birth status.

Transcript Of Supreme Court Arguments In California FACT Act Case Is Now Available

The full transcript of today' oral arguments (see prior posting) in National Institute of Family and Life Advocates v. Becerra is now available. Reporting on the arguments, Politico said in part:

A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.

Alabama Judicial Ethics Provision Enjoined In Part

In Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, March 2, 2018), an Alabama federal district court held that a provision in Alabama's Canon of Judicial Ethics, because of its breadth, violates the free speech provisions of the 1st Amendment.  At issue was the provision that: "A judge should abstain from public comment about a pending or impending proceeding in any court...."  A complaint had been filed against Alabama Supreme Court Justice Tom Parker over his comments on the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages. The court issued a preliminary injunction barring the Judicial Inquiry Commission

from enforcing Alabama Canon of Judicial Ethics 3A(6) to the extent that it proscribes public comment by a judge about a pending or impending proceeding in a court outside the state of Alabama, [or] ... proscribes public comment by a judge that cannot reasonably be expected to affect the outcome or impair the fairness of a proceeding in Alabama.

Liberty Counsel issued a press release announcing the decision.