8th Circuit: Street Preacher Did Not Show Entitlement To Preliminary Injunction

In Sessler v. City of Davenport, (8th Cir., March 18, 2021), the U.S. 8th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a street preacher who in 2018 had been required by police to leave the Street Fest area in Davenport. He was limited to preaching across the street from one of the festival entrances. Plaintiff sought a preliminary injunction to bar enforcement of the city's Special Events Policy against him through December 2022. The court held:

Although Sessler possesses a First Amendment right to communicate his messages in a public forum, he does not have the wholesale right to disrupt an event covered by a permit....

Even if we assume for purposes of this appeal, without deciding, that Sessler has shown a likelihood of success on the merits, we find Sessler’s inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief....

The facts as alleged by Sessler show that he was allowed to continue preaching in the City’s public sidewalks and streets, just not those demarcated and secured for use by Street Fest in July 2018. And, although Sessler’s Complaint is based on his removal from a festival governed by the City’s Policy, Sessler does not provide any concrete plans to share his messages at future festivals in the City.

California COVID Restrictions On Singing At Worship Services Upheld

In Calvary Chapel of Ukiahv. Newsom, (ED CA, March 10, 2021), a California federal district court refused to issue a preliminary injunction against California's COVID-19 restriction on indoor singing and chanting during worship services. The court rejected plaintiffs' free exercise, free speech, equal protection and Establishment Clause claims. The court said in part:

[T]he State has now issued protocols allowing those who serve as performers during church services, presumably including choir members or soloists, to sing indoors subject to masking and distancing. Under these newest rules, the State argues, “worship services are treated more favorably than the entertainment industry.” ... To the extent one might question whether churches were being treated equivalently to the entertainment industry, that doubt appears to have been eliminated beyond a shadow of a doubt.

Satanic Temple Member Sues Over Texas Abortion Requirements

The Satanic Temple and one of its members filed suit last month in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion.  The complaint (full text) in The Satanic Temple, Inc. v. Texas Department of State Health Services, (SD TX, filed 2/12/2021), alleges that the individual plaintiff wishes to engage in The Satanic Temple's Abortion Ritual, explaining:

46. TST developed the Satanic Abortion Ritual to help its membership cast off guilt, shame, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy....

47. The Ritual also confirms the member’s choice and wards off effects of unjust persecution....

48. Here, the unjust persecution is an improper effort of the State (the “outside world”) to infringe on the decision-making of a member about her own health decision (the “inside world.”)...

102. Texas places barriers between Ms. Doe (and TST’s similarly situated members) and this religious speech and conduct by first requiring she undergo a medically unnecessary operation, requiring she reject the “opportunity” to see the results of the imaging, requiring she listen to the narrative of and results of the imaging, and requiring she wait.

Plaintiffs claim that the regulations violate their free exercise, substantive due process and equal protection rights. Christian Headlines reports on the lawsuit.

In Campus Religious Speech Case, Supreme Court Says Nominal Damage Claim Can Support Standing

The U.S. Supreme Court today decided Uzuegbunam v. Preczewski, (Sup. Ct., March 8, 2021), potentially opening the courts to a larger number of civil rights complaints.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. Subsequently, the school changed its policies, but that did not moot the students' claim for nominal damages. At issue in the case as it reached the Supreme Court is whether a claim for nominal damages satisfies the requirement that for standing a plaintiff must show, among other things, that the remedy will redress the constitutional violation alleged. In an 8-1 decision, through an opinion written by Justice Thomas, the Court said in part:

Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.

The dissent worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” ... But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone....

This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury)....

Justice Kavanaugh filed a concurring opinion. 

Chief Justice Roberts dissented, saying in part:

Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice....

The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.

ABC News reports on the decision.

8th Circuit Upholds Missouri Immunization Opt-Out Form

In B.W.C. v. Williams, (8th Cir., March 5, 2021), the U.S. 8th Circuit Court of Appeals rejected free speech, free exercise, equal protection and hybrid rights challenges by parents and their children to the form they must file in Missouri to obtain a religious exemption from vaccination requirements. The form, which the parent must sign, contains a paragraph urging parents to immunize their child. The court said in part:

Form 11 states the government’s position, separated from the religious opt-out. Unlike a student required to recite the Pledge or a motorist required to display the state’s motto, there is no confusion here: it is the government’s message to parents considering Form 11....

Form 11 does not require the plaintiffs to engage in conduct against their religious beliefs. Plaintiffs object to the process of producing vaccines or introducing vaccines into their children’s bodies.... [S]ubmission of Form 11 does not increase the number of vaccines produced or force their children to get immunized....

Form 11 does not target religious believers or violate their right to equal protection. The defendants do not treat the plaintiffs differently than any other parent requesting an exemption from immunization: they were all required to submit a DHSS form to their school.

Courthouse News Service reports on the decision.

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

8th Circuit: Arkansas Anti-Boycott of Israel Law Violates 1st Amendment

In Arkansas Times LP v. Waldrip, (8th Cir., Feb. 12, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, struck down an Arkansas' statute requiring businesses that enter contracts with public entities to certify that they will not engage in any boycott of Israel. "Boycott of Israel" is defined in the statute as "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel...." The majority said in part:

Considering the Act as a whole, we conclude that the term “other actions” in the definition of ... “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act [also] requires government contractors ... to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities.... Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights.

Judge Kobes dissented.  Courthouse News Service reported on the decision.

No Injunction Against Sound Ordinance Because City Disclaims Enforcement Pending Revision

In Abolish Abortion Oregon v. City of Grants Pass, (D OR, Feb. 12, 2021), an Oregon federal district court refused to issue a preliminary injunction against enforcement of the city's Sound Ordinance sought by an organization of Christian evangelists and anti-abortion advocates. Plaintiffs contended that enforcement violates their free speech and free exercise rights. The city, however, has conceded that the current Sound Ordinance is probably unconstitutional and says it is revising the Ordinance. It has also said it will not enforce the Ordinance during the revision process.

11th Circuit: Anti-Abortion Protesters Challenge To Permit Requirements Rejected

In Henderson v. McMurray, (11th Cir., Feb. 9, 2021), the U.S. 11th Circuit Court of Appeals dismissed free speech, free exercise and due process challenges to Huntsville, Alabama's application of its permit requirements to activities of James and Carol Henderson, two anti-abortion protesters. When abortion rights counter-protesters drowned out the sidewalk counseling and prayers of the Hendersons, the Hendersons resorted to using amplification devices. This triggered the need for them to obtain a permit under Huntsville's municipal code. In dismissing the Hendersons' various challenges, the court concluded that they failed to plead facts showing that they did not have ample alternative channels of communication or that the limits on noise in their permit were a pretext for viewpoint discrimination. The court also held that the noise limits in the permit were not unconstitutionally vague and that the free exercise claim does not trigger strict scrutiny.

Sanctuary Leaders Sue Over Targeting and Excessive Fines

Suit was filed last month in D.C. federal district court by advocacy groups and individuals who are leaders in the sanctuary movement claiming that ICE and the Department of Homeland Security have targeted the individual defendants with exorbitant fines because they have taken sanctuary in houses of worship. The complaint (full text) in Austin Sanctuary Network v. Gaynor, (D DC, filed 1/19/2021), alleges that these actions violate the 1st and 8th Amendments as well as RFRA. The complaint alleges in part:

The sanctuary movement reignited in the 2000s through a network of over 800 Christian, Jewish, Muslim, Hindu, Sikh, Baha’i, and Buddhist houses of worship that opened their doors to immigrants at risk of deportation, amidst a steady rise in anti-immigrant rhetoric and the criminalization, detention, and deportation of immigrants....

Individual Plaintiffs’ religious beliefs are deeply intertwined with the sanctuary movement. For them, taking sanctuary and participating in the sanctuary movement are religious acts....

Center for Constitutional Rights issued a press release announcing the filing of the lawsuit.

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.

1st Circuit Again Upholds Boston's Refusal To Fly Christian Flag From City Hall Flagpole

In Shurtleff v. City of Boston, (1st Cir., Jan. 22, 2021), the U.S. 1st Circuit Court of Appeals, in a case coming before it for a second time, again upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. The court said in part:

Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause....  The City is therefore "entitled" to "select the views that it wants to express."...

The court also rejected plaintiffs' Establishment Clause claim, saying in part:

The exclusion of religious entities from a public  program, without more, does not violate the Establishment Clause. See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020). Nor is proof of such exclusion evidence of hostility towards religion....

We add, moreover, that while the Establishment Clause may not require a secular-flag policy, the City "may act upon [its] legitimate concerns about excessive entanglement with religion" in administering its flag-raising program....

Our government-speech finding bolsters the conclusion that the City would be perceived to endorse the messages conveyed by the flags that it flies.

8th Circuit Hears Arguments In College's Deregistration of Christian Student Group

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments in InterVarsity Christian Fellowship USA v. University of Iowa. (Audio of full oral arguments.)  In the case,  an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the group's Christian statement of faith. The court also denied defendants' claim of qualified immunity. (See prior posting.) Becket Law has a press release with links to some of the documents in the case.

Supreme Court Will Hear Arguments Today In College Speech Policy Case

The U.S. Supreme Court hears oral arguments this morning in Uzuegbunam v. Preczewski. The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (See prior posting.) The 10:00 am oral arguments may be viewed live at this link. I will update this post to include a link to the written transcript of the arguments when it becomes available later today. SCOTUSblog's case page contains links to all the briefs filed in the case. Colorado Politics reports on the decisions.

UPDATE: Here are links to the transcript and audio of the oral arguments.

Supreme Court Denies Review In Clinic Buffer Zone Case

The U.S. Supreme Court today denied review in Bruni v. City of Pittsburgh, Pennsylvania, (Docket No. 19-1184, certiorari denied 1/11/2021). (Order List [scroll to pg. 25]). 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. Congregating, patrolling, picketing and demonstrating in such areas are banned. (See prior posting.) Justice Thomas added a statement to his vote to deny review, saying that in an appropriate case the Court should re-examine whether intermediate scrutiny is the correct test in buffer zone cases. ADF issued a press release on the denial of certiorari.

Supreme Court Wil Hear Challenge To California Donor-Disclosure Requirement

The U.S. Supreme Court on Friday granted certiorari in Thomas More Law Center v. Becerra (Docket No. 19-255, cert. granted 1/8/2021) and Americans for Prosperity Foundation v. Becerra (Docket No. 19-251, cert. grange 1/8/2021) (Order List), and consolidated the cases for oral argument.  At issue is a California administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B. That Schedule contains the names and contributions of significant donors. Thomas More Law Center, which describes itself in its petition for certiorari as a non-profit organization that defends religious freedom, family values, and the sanctity of life, argues in its cert. petition:

For those associated with charities that speak on contentious matters—like Petitioner the Thomas More Law Center (the “Law Center”)—disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree.

See prior related posting. SCOTUSblog case pages (1, 2) for the cases have links to all the pleadings and related materials.

Street Preacher Planning Protest Lacks Standing In TRO Proceeding

In Gibson v. City of Vancouver, 2020 U.S. Dist. LEXIS 232408 (WD WA, Dec. 3, 2020), a Washington federal district court refused to issue a temporary restraining order to protect a street preacher who planned to hold a 20-person outdoor prayer protest at a public park to oppose the governor's COVID-19 orders. The court held that plaintiff lacks standing to sue, saying in part that plaintiff:

has not demonstrated that any of the Defendants he sued have communicated a specific warning or threat to initiate any proceedings against him if he carries out his plan...

Sign Ordinance Invoked Against Abortion Protesters Is Unconstiutional

In Baker v. City of Fort Worth, (ND TX, Dec. 8, 2020), a Texas federal district court held that Fort Worth's sign ordinance is facially unconstitutional as a content-based prior restraint on speech.  The suit was brought by two plaintiffs who were cited for placing 18-inch crosses on a public right-of-way in front of an abortion clinic. The city ordinances require city council approval in order to display signs on public property, except for political signs at election polling locations.

10th Circuit Allows Enforcement of Disturbing-the-Peace Law Against Abortion Protesters

In Harmon v. City of Norman, (10th Cir., Dec. 7, 2020), the U.S. 10th Circuit Court of Appeals upheld a district court's refusal to enjoin during the pendency of litigation the use of Norman, Oklahoma's disturbing-the-peace ordinance against anti-abortion protesters. The court held that the ordinance is a neutral and narrowly-tailored time, place and manner regulation that does not violate the 1st Amendment. The court also rejected vagueness and overbreadth claims.

Anti-Gay Proselytizers Lose Suit Against City

In Waldrop v. City of Johnson City,Tennessee, (ED TN, Nov. 30, 2020), a Tennessee federal district court dismissed a suit by several individuals who were distributing religious literature at a gay pride event. Plaintiffs claimed that their free speech and free exercise rights were infringed when they were required by police to move from the entrance to the park where the event was being held to a nearby sidewalk. The court said in part:

The evidence supports only the conclusion that the officers escorted Plaintiffs from Founders Park, and voiced any attendant warnings to them about their return there, in response to their obstruction of the entrance—a content-neutral reason for their removal. The record is simply without evidence showing that Lieutenant Peters or any other officer moved Plaintiffs away from Founders Park for any other reason, much less for the reason that the content of Plaintiffs’ message was offensive or disagreeable. To the contrary, the evidence establishes— beyond any genuine issue of material fact—that the officers allowed Plaintiffs’ message to endure within the festival’s event area for hours into the day, despite TriPride’s organizers’ clamors for the officers to extinguish it.