Bible Quotes In University VP's Presentation To Employees Not Protected By First Amendment

Faulkner v. University of Cincinnati, (SD OH, March 23, 2015), involves a challenge by an Associate Vice President in the University's Department of Internet Technology to disciplinary action taken against him for his use of Biblical quotations in a departmental presentation designed to improve leadership skills of participants. An Ohio federal district court dismissed the major part of plaintiff's claim, but permitted him to move ahead on one portion of his complaint.  The court explained:

The Court concludes that Faulkner was not speaking as a private citizen on a matter of public concern when he gave his presentation to the IT Leadership Academy. Therefore, that speech was not protected by the First Amendment, and he cannot challenge the "discipline" that resulted - his attendance at a "sensitivity" seminar. But this conclusion does not require the dismissal of the entirety of his First Amendment claims. Faulkner is also challenging the University's prohibition on making any biblical quotations in "future lectures or in work related interactions." This broadly worded ban could apply to consensual conversations with colleagues, to religious symbolic speech, and to "interactions" of all sorts that might occur outside of the classroom or officially sanctioned University-sponsored groups.

Supreme Court Hears Oral Arguments On Specialty Plates and Free Speech

The U.S. Supreme Court yesterday heard oral arguments in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Full transcript of oral arguments).  In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The 5th Circuit majority also concluded that Texas engaged in unconstitutional viewpoint discrimination when it rejected, as offensive, a specialty plate design that included the Confederate battle flag. (See prior related posting.)  SCOTUSblog reports on the oral arguments, saying in part:

From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.

New York Times also reports on the arguments.

College Admission Denial Because of Religious References In Interview Supports Establishment Clause Claim

In Jenkins v. Kurtinitis, (D MD, March 20, 2015), a Maryland federal district court permitted an unsuccessful applicant to a community college radiation therapy program to move ahead with his Establishment Clause claim, while dismissing his free speech and state free exercise claims. Plaintiff Brandon Jenkins claimed that the program director Adrienne Dougherty denied him admission to the program in part because during his interview in answering a question about the thing most important to him, Jenkins replied "My God."  In an e-mail to Jenkins, Dougherty told him that "this field is not the place for religion."  The court held that:

Jenkins has alleged sufficient facts to state a claim for relief [under the Establishment Clause] because, given the posture of the case, I cannot determine whether defendants acted with an impermissible [religious] purpose.

However, rejecting Jenkins' free expression claim, the court said in part:

the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process....

Amicus Brief Targets Scalia and Thomas In Linking Same-Sex Marriage and Campaign Finance Equality

Dozens of amicus briefs have been filed in Obergefell v. Hodges and its companion cases-- the same-sex marriage cases that are set for oral argument before the U.S. Supreme Court on April 28. (Links to all briefs from SCOTUS blog). One of the most interesting (full text) is the brief of the Liberty Education Forum (a non-profit organization with ties to the Log Cabin Republicans), filed March 6, which focuses on the special treatment that contributions by married couples receive under state campaign finance laws. For example, each spouse can make campaign contributions up to the individual limit, even though only one of them brings income into the household.  The brief argues:

Respondents’ same-sex marriage prohibitions, when viewed together with their campaign finance laws, result in similarly situated couples having unequal rights to engage in the political process through political contributions. A state’s differential treatment with regard to core First Amendment rights violates the Fourteenth Amendment.

In a press release, Liberty Education Forum says that the brief is

targeted specifically at Justices Antonin Scalia and Clarence Thomas.... No two Justices on the Supreme Court have been more vocal about their opposition to curtailments of the First Amendment that exist because of restrictions on campaign contributions than Justices Scalia and Thomas.

BNA Daily Report for Executives (subscription required) reports on the brief.

Philadelphia Transit System Must Accept Anti-Muslim Ad

In American Freedom Defense Initiative ("AFDI") v. Southeastern Pennsylvania Transportation Authority, (ED PA, March 11, 2015), a Pennsylvania federal district court granted a preliminary injunction requiring Philadelphia's transit system to accept a controversial anti-Muslim ad on its buses.  AFDI sought to purchase space for an ad that reads in part: "Islamic Jew-Hatred: It’s in the Quran." The ad pictures Adolph Hitler meeting with an Arab leader.  SEPTA had rejected the ad under its policy to prohibit: "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." The court held, however, that this is an unconstitutional content-based restriction on speech in a designated public forum. It added:

[I]t is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements. While certainly laudable, such aspirations do not, unfortunately, cure First Amendment violations.

AP reports on the decision.

8th Circuit Invalidates Missouri House of Worship Protection Act

In Survivors Network of Those Abused By Priests, Inc. v. Joyce,  (8th Cir., March 9, 2015), the U.S. 8th Circuit Court of Appeals held that Missouri's House of Worship Protection Act violates the 1st Amendment's free speech protections.  The statute, which prohibits "using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services," was challenged by groups and individuals who picket Catholic Churches over clergy sexual abuse and other issues.  The court concluded that the statute is a content-based restriction on speech and is thus subject to strict scrutiny.  The court added:

The broad sweep of the Worship Protection Act's ban ... can prevent significant messages from being publicly expressed, solely because they are offensive or disagreeable to some. Such risks are heightened near the places regulated by the Act—churches and buildings used for religious purposes. These locations are the most likely places for appellants to find their intended audience, including individuals who have personally been affected or victimized by instances of clerical sexual abuse and church employees with knowledge or information about abusive acts.

Kansas City Star reports on the decision.

6th Circuit En Banc Hears Arguments In Arab Festival Proselytization Case

Yesterday the U.S. 6th Circuit Court of Appeals, sitting en banc, heard oral arguments in Bible Believers vs Wayne County. (Audio of full oral arguments.)  In the case, a 3-judge panel last year, in a 2-1 decision, affirmed the district court's dismissal of civil rights claims by Christian evangelists who engaged in aggressive preaching at the 2012 Arab International Festival in Dearborn, Michigan. Police insisted that they leave when the crowd turned hostile. (See prior posting.) The Grosse Point Patch has more background on the case.

Teacher Forced Out For Facebook Posting On Religious Objections To School Billboard Can Sue

Knox v. Union Township Board of Education, (D NJ, Feb. 23, 2015), is a suit by a former tenured special education teacher at a public high school in New Jersey who was suspended after a posting comments on her personal Facebook page expressing her religious disapproval of a school billboard that promoted alternative homosexual lifestyles.  When the school board brought charges seeking to strip her of tenure, the teacher entered a settlement agreement under which she resigned and paid back the salary that she had received during her suspension.  However she reserved her right to sue for statutory and constitutional violations. In this opinion, the court permitted her to proceed with her state and federal constitutional claims of religious discrimination, infringement of free exercise and free speech rights, establishment clause violations and denial of due process. Her claims of racial discrimination and intentional infliction of emotional distress were dismissed.

Fired Atlanta Fire Chief Sues Mayor and City

Today former Atlanta Fire Chief Kevin Cochran filed a federal court lawsuit against Atlanta Mayor Kasim Reed and the City of Atlanta  claiming that Reed's firing of Cochran last month violated Cochran's 1st and 14th Amendment rights. (See prior related posting.)  The 54-page complaint (full text) in Cochran v. City of Atlanta, Georgia, (ND GA, filed 2/18/2015) contends that

[Reed] terminated Cochran for holding historical Christian beliefs about marriage and sexuality and making those views known in a self-published, non-work-related, religious book.

As reported by the Atlanta Journal-Constitution, Cochran's book, titled Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation, includes passages that describe homosexuality as a "sexual perversion" akin to bestiality. Cochran gave copies of his book to a number of city officials and employees. The suit seeks reinstatement, damages and an end to city policy that requires pre-clearance before employees publish a work.  ADF issued a press release announcing the filing of the lawsuit.

School Drops Required Disclaimer In Settlement of Suit On Student-To-Student Distributions

A suit filed last year (background) against a Loomis, California elementary school was settled last week with the school agreeing to change its policy on student distribution of invitations and flyers.  At issue was a reprimand to a student for handing out invitations to two of her friends for a "Genesis Apologetics" event that would discuss creation and evolution. The school insisted that even though the distribution was outside of class time, the flyers had to be stamped by the school with a disclaimer of sponsorship. According to a press release from Pacific Justice Institute, under the settlement the school will no longer insist on disclaimers on material given from one student to another.

City's Solicitiation Ordinance Held Too Restrictive

In United States Mission Corp. v. City of Mercer Island, (WD WA, Feb. 10, 2015), a Washington federal district court granted a preliminary injunction against enforcement of a Seattle suburb's solicitation ordinance in a suit by a Christian religious organization.  The Mission operates residential facilities for the homeless, and requires its residents to engage in door-to-door religious solicitation on its behalf. The challenged ordinance bars door-to-door solicitations (but not proselytizing without soliciting funds) after 7:00 p.m.  The Mission engages in residential solicitations between 5:00 p.m. and 8:00 p.m. on weekdays. The court held that prior cases "have continuously found that curfews prior to 9:00 p.m. are not sufficiently connected to a municipality's interest in crime prevention" to meet the compelling interest- least restrictive means requirement for content-based regulation of speech.

According to the Mercer Island Reporter, City Council will meet on Feb. 23 to amend the solicitation ordinance to comply with the court's holding.

6th Cirucit Upholds Damage Award To Critic of Judge For Expressing Religious Views

In Pucci v. Nineteenth District Court, (6th Cir., Feb. 13, 2015), the U.S. 6th Circuit Court of Appeals affirmed the $734,000 damage award to court employee Julie Pucci who was fired after she complained to the Michigan State Court Administrative Office about Judge Mark W. Somers' expressing of religious views in the course of performing his judicial duties. It also affirmed the award of over $416,.000 in attorneys' fees. The court upheld the jury's findings that in complaining to SCAO, Pucci was speaking as a citizen on a matter of public concern. (See prior related posting.)

Biblical Theme Park To Sue Over Denial of Tax Rebates

Answers in Genesis announced this week that it plans to file a federal lawsuit challenging Kentucky's refusal to allow its planned Ark Encounter theme park to participate in the state's tax rebate incentive program. In December, the state reversed an earlier preliminary decision to allow the Noah's Ark theme park some $18 million in sales tax rebates in a program designed to promote Kentucky tourism. The state said that the park had evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. It also objects to the park's plan to hire only Christians. (See prior posting.) The lawsuit will contend that the state's action amounts to unconstitutional viewpoint discrimination.

Transcript of Today's SCOTUS Arguments In Town of Gilbert Now Available

The full transcript of oral arguments today in Reed v. Town of Gilbert -- the case on regulation of church directional signs-- is now available.  SCOTUSBlog has an analysis of the arguments, saying in part:

Throughout the argument, Justices of differing philosophical leanings seemed skeptical of a one-size-fits-all First Amendment approach for judging sign ordinances.  That was the way they interpreted the argument of David A. Cortman of Lawrenceville, Georgia, representing the small Good News Community Church and its pastor, Clyde Reed.   No member of the Court appeared persuaded by his argument that, if a city allows more leeway for one kind of sign, the Constitution demands that all signs in any way similar be treated the same.

Supreme Court Will Hear Arguments Today On Church's Challenge To Sign Ordinance

The U.S. Supreme Court will hear oral arguments this morning in Reed v. Town of Gilbert.  (Argument calendar.) In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld as content-neutral an Arizona town's sign ordinance that limits the display of directional signs.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.)  Here is the SCOTUSBlog's case page with links to all of the briefs in the case. and here is Lyle Denniston's preview of the arguments.

Iowa's Flag Desecration and Misuse Laws Invalidated In Suit By Westboro Baptist Church Demonstrators

In Phelps v. Red Oak Police Chief, (SD IA, Dec. 3, 2014), an Iowa federal district court held Iowa's flag desecration and flag misuse statutes unconstitutional on their face because of their overbreadth.  The holding comes in a free expression challenge to the laws by members of the Westboro Baptist Church who regularly picket funerals of soldiers and participate in other protests. Plaintiffs allege that Red Oak police threatened to enforce the statutes against them, leading them to refrain from dragging the flag on the ground and wearing it on their bodies as part of their demonstrations. The court rejected plaintiff's additional argument that the laws infringed her free exercise of religion.

Supreme Court Will Review 5th Circuit Decision On Specialty License Plates

As reported by SCOTUS blog, yesterday the U.S. Supreme Court granted certiorari in Walker v. Sons of Confederate Veterans, (Docket No. 14-144, cert. granted 12/5/2014). (Order List). In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The majority also concluded that the Texas Department of Motor Vehicles Board engaged in unconstitutional viewpoint discrimination when it rejected a specialty plate design that included the Confederate battle flag. Texas rejected the design because many members of the public found it offensive.  (See prior posting.) The petition for certiorari focused on two issues-- whether messages and images on specialty plates are government speech; and whether denial of a plate can involve viewpoint discrimination if the state never issued a plate expressing a different message on the same subject.

Reporting on the Court's grant of cert., the Washington Post points out that the Court still has before it a petition for certiorari in ACLU v. Tata involving North Carolina's authorization of a "Choose Life" specialty plate while it refused to issue a pro-choice plate. (See prior posting.)

Satanic Temple Gets OK For Its December Display In Florida Capitol

Slate reports that Florida's Department of Management Services this week officially approved an application by the Satanic Temple to place a religious display of an angel falling into a pit of fire in the Rotunda of the state capitol building from Dec. 22-29.  In a press release issued Tuesday, Americans United for Separation of Church and State said it had threatened to file a lawsuit on the Temple's behalf. The state last year rejected the Satanic Temple's request under rules that designate the Rotunda as an open forum for private speech, but allow exclusions of displays that are grossly offensive.

False Anti-Muslim Speech Protected By 1st Amendment

In American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority ("SEPTA"), (ED PA, Nov. 25, 2014), a Pennsylvania federal district court granted a motion to exclude expert testimony on the falsity of language in an anti-Islam ad which an advocacy group wants to place on public buses. SEPTA refused to accept the ad under its policy to refuse copy that, among other things, disparages on the basis of religious belief.  AFDI sued claiming this rejection violates its free speech rights.  In the lawsuit, SEPTA sought to offer expert testimony that the ad's referring to Haj Amin al-Husseini as the “leader of the Muslim world” is false and that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.” The court concluded however that the proposed testimony is irrelevant because the 1st Amendment protects false speech as well as accurate expression. The court also rejected as too attenuated the argument that the ad amounts to a fraudulent charitable solicitation.  The website listed in the ad links to a second website at which charitable contributions can be made. WND's report on the decision includes a photo of the disputed ad.

Suit Challenges Rules For Preaching On Boardwalk

A lawsuit was filed in New Jersey federal district court last week challenging the regulations governing preaching and distributing religious material on the Boardwalk at Point Pleasant Beach, NJ.  The complaint (full text) in Paoella v. Borough of Point Pleasant Beach, New Jersey, (D NJ, filed 10/24/2014), alleges:

Plaintiff, as an exercise of his Christian beliefs, intends to go to the public areas of the Boardwalk, hold a sign expressing a religious message, and speak about God and hand out religious literature to those who wish to receive his message. 

However the Borough insists that in order to do so, plaintiff Joseph Paoella must first submit a "hold harmless" agreement, a "Religious Activities Application and Facility Use Form," a Memorandum of Understanding, and proof of insurance satisfactory to the Municipal Clerk. Paoella alleges that his violates his rights under the 1st and 14th amendment as well as comparable state constitutional protections.  NJ Advance Media reports on the filing of the lawsuit.