Supreme Court Grants Review In Pregnancy Center Required Disclosure Case

The U.S. Supreme Court today granted certiorari in National Institute of Family and Life Advocates v. Becerra, (Docket No. 16-1140, cert granted 11/13/2017) (Order List).  In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate 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. (See prior posting.) The Supreme Court limited its grant of review to the Free Speech issues, excluding review of Free Exercise challenges.  SCOTUSblog's case page has links to the cert. petition and amicus briefs filed in the case.  The 9th Circuit in the case held that the required disclosures are regulation of "professional speech" subject only to intermediate scrutiny.  Washington Post reports on the Court's grant of review.

Cert. Filed In Challenge To Abortion Clinic Anti-Noise Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in March v. Mills, (cert. filed 11/6/2017).  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.  In March v. Mills, (1st Cir., Aug. 8, 2017), 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." The 1st Circuit held that the Noise Provision is a content-neutral time, place and manner restriction. Thomas More Law Center issued a press release announcing the filing of the petition for review.

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage.  While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage.  Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment,  had threatened to withdraw all its inspectors if the article reappeared.  The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:

Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views.  Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.

Supervisors are also free to engage in speech about religion.  While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment.  As a result, supervisors may also express their sincere religious views without fear of sanctions.

Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites.  Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace.  USDA employees must act to avoid the limiting or chilling of protected speech.

The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

University's Anti-Harassment Policy Upheld Over Prof's Free Speech Claims

In Board of Trustees of Purdue University v. Eisenstein, (IN App., Oct. 30, 2017), and Indiana Court of Appeals held that a trial court should have dismissed a lawsuit brought by an associate professor at Purdue University Calumet against the university, its board of trustees and several of its faculty members.  Associate Professor Maurice Eisenstein was accused by several students and faculty of making anti-Muslim and anti-Black statements in his Introduction to Judaism class and in Facebook postings.  A number of students and faculty, as well as the Muslim Student Association, filed harassment complaints against Eisenstein.  Subsequently Eisenstein made derogatory comments to two of the faculty who had complained, and they filed additional charges of retaliation.  The university ultimately upheld only the retaliation claims.  Eisenstein then sued claiming, among other things, that the university's retaliation policy is unconstitutionally vague and that his free speech rights were infringed. He also alleged breach of contract and other claims. In a 42-page opinion, the court rejected Eisenstein's claims on a number of grounds.  Inside Higher Ed reports on the decision.

Minister May Move Ahead With "As Applied" Challenge to Disturbing-The-Peace Ordinance

In Roy v City of Monroe, (WD LA, Oct. 19, 2017), a Louisiana federal district court allowed plaintiff Clarence Roy to move ahead with an "as applied" First Amendment challenge to Monroe, Louisiana's disturbing-the-peace ordinance.  Roy is a minister who regularly preaches near a bar whose patrons are predominately gays and lesbians.  Police issued a summons for disturbing the peace to Roy when a woman complained that Roy had called her names, told her she was going to hell, and that her father was "the devil."  The court said in part:

In essence, the validity of Roy’s First Amendment as-applied claim “hinges on probable cause for [his] [summons]—a fact question for the jury.” ....  Accordingly, this claim cannot be resolved on summary judgment.... If Sergeant Booth had probable cause to arrest Roy under §12:153, “there could be no First Amendment violation.”...  However, if a jury finds there was no probable cause for Roy’s arrest, his First Amendment claim may be considered as well.

The court however dismissed a facial challenge, as well as a due process challenge, to the same Ordinance.

Pastor's Wife Sues Over Kansas Israel Anti-Boycott Law

The ACLU today filed suit in federal district court in Kansas on behalf of a Mennonite woman challenging a Kansas statute that allows the state to enter contracts with companies or individuals only if they certify that they are not currently engaged in a boycott of Israel.  The complaint (full text) in Koontz v. Watson, (D KA, filed 10/11/2017), explains that Esther Koontz, the wife of a Mennonite pastor, following the recommendation in a resolution passed by the Mennonite Church USA is engaged in a boycott of consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories.  The Kansas State Department of Education refuses to sign a contract with Koontz for her to serve as a teacher trainer in its Math & Science Partnerships program because she refuses to sign a boycott certification.  The complaint alleges that this violates her free speech and associational rights, amounts to viewpoint discrimination, and violates the equal protection clause of the 14th Amendment. The ACLU has also submitted a Memorandum (full text) in support of Koontz's motion for a preliminary injunction.  ACLU issued a press release announcing the filing of the lawsuit.

Court Dismisses Challenge To "In God We Trust" On Currency

In Mayle v. United States, (ND IL, Sept. 29, 2017), an Illinois federal district court rejected challenges by a Satanist to the use of "In God We Trust" on U.S. currency.  The court rejected free exercise and compelled speech challenges, as well as equal protection and Congressional power claims.

Street Preacher's Suit Against Arresting Officer Is Dismissed

In Cranford v. Kluttz, (MD NC, Sept. 20, 2017), a North Carolina federal district court dismissed on qualified immunity grounds a suit against a police officer who arrested street preacher Brian Cranford at a Farmer's Market festival.  The arrest for disorderly conduct followed Cranford's shouting:

... [A]ll of those ladies over there. The Bible says that a woman should dress modestly. See a lot of ladies out here dressed like tramps and whores and prostitutes today. The Bible says you dress modestly.

Cranford was initially convicted, but then acquitted of the charges against him.  At issue in this damage action was whether the police officer had probable cause to arrest  Cranford, and that, in turn, depended on whether Cranford's remarks were directed to the crowd as a whole, or to a specific individual-- in particular the arresting officer's wife.  The court concluded that "the statement could ... reasonably be construed to have been directed to specific individuals in the crowd and intended to be provocative."

In dismissing the lawsuit, the court said in part:

The law is not established, much less clearly established, that a law enforcement officer may not arrest an individual exercising free speech and religious rights when that officer has probable cause to believe a crime has been committed.

Court Enjoins Florida Law Restricting Abortion Advice

In Fuldwider v. Senior, (ND FL, Sept. 29, 2017), a Florida federal district court issued a preliminary injunction against enforcement of a Florida statute placing limits on individuals and organizations that provide advice or help to individuals seeking an abortion. Among those challenging the law were a minister and two rabbis who provide religious counseling that sometimes includes discussion of religious beliefs about abortion and sometimes includes referrals to organizations that provide abortions.

The challenged law requires those who provide advice or referrals to register with the state. It requires anyone making a referral to first provide a detailed explanation of abortion, including alternatives. Before referring a minor, the person or agency must also attempt to provide the same explanation to the minor's parents or guardian.  The court summarizes its holding:

This case presents a challenge to a state law that (1) imposes a content-and viewpoint-based requirement to register and pay a fee to engage in speech protected by the First Amendment and (2) makes it a crime not to simultaneously engage in compelled speech that the law describes so vaguely that even the state’s Attorney General does not know what is required. This order grants a preliminary injunction barring enforcement of these provisions.

ACLU issued a press release announcing the decision.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

8th Circuit: OK To Ban Religious Leafleting On Plaza of Sports Arena

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the U.S. 8th Circuit Court of Appeals held that the city did not infringe the free speech rights of a city resident who insisted on handing out Christian religious literature in the plaza area of a municipal sports arena to those attending high school basketball tournaments. A majority of the 3-judge panel held that the entire plaza area is a non-public forum, and the policy barring leafleting in that area is reasonable. Judge Melloy dissented in part, concluding that a portion of the plaza area is a traditional public forum. Lincoln Journal-Star reports on the decision.

Coach Loses Bid To Pray On 50-Yard Line

In Kennedy v. Bremerton School District, (9th Cir., Aug. 23, 2017),  the U.S. 9th Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a widely publicized challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games.  The appeals court concluded that Coach Joseph Kennedy was not likely to succeed on the merits of his free speech claim  It held that in kneeling and praying on the 50-yard line, Kennedy was speaking as part of his public employment.  His employer had the right to order him not to speak in his official capacity in the manner which he did.  The court added:

On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field.... While we “recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,” such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.... That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.”

Judge Smith filed a concurring opinion to express his view that the school district's actions actions were also justified to avoid violating the Establishment Clause. The majority held that it need not reach the Establishment Clause issue.  Kitsap Sun reports on the decision.

8th Circuit Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Ricketts, (8th Cir., Aug. 11, 2017), the U.S. 8th Circuit Court of Appeals upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church.  WBC has historically picketed military funerals-- which its members consider "patriotic hoopola"-- with anti-gay messages and other messages about national policies that WBC considers opposed to Biblical teachings.  The challenged Nebraska law prohibits picketing within 500 feet of a cemetery, mortuary, or church beginning one hour before and ending two hours after the start of a funeral. In upholding the law, the court concluded:

The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute....  Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.... NFPL strikes a balance between these competing interests of law-abiding speakers and unwilling listeners in a way that is not facially unconstitutional. We likewise find that Phelps-Roper has failed to demonstrate that the NFPL was applied to her in an unconstitutional manner.

Omaha World-Herald reports on the decision.

Good News Clubs Win Preliminary Injunction

In Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of  Pike Township, (SD IN, Aug. 1, 2017), an Indiana federal district court granted a preliminary injunction to Child Evangelism Fellowship preventing the school district from charging CEF a fee for using school facilities for the Good New Club meetings until the district develops an acceptable policy as to which groups must pay for use of school facilities.  The school district currently has a policy allowing some groups, such as the Boy Scouts, to "partner" with the schools and use facilities free of charge, while others, like CEF, are charged a fee.  The court held that the school district could charge fees to some groups and not others if the groups were classified in a viewpoint-neutral way.  Here however, "the District has given itself unbridled discretion to determine which outside groups pay fees to use its facilities and, indeed, which outside groups are permitted to use its facilities at all...." The court held:

This type of unbridled discretion and vague, unwritten “partner” policy violates the First Amendment.

Liberty Counsel issued a press release announcing the decision.

Suit Challenges Hawaii's Notice Mandate For Pro-Life Pregnancy Centers

A suit was filed last week in Hawaii federal district court challenging Hawaii's SB 501 enacted earlier this year that requires "limited service pregnancy centers" to disseminate on-site to patients a notice that says:

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. Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate.

The complaint (full text) in Calvary Chapel Pearl Harbor v. Chin, (D HI, filed 7/12/2017), alleges in part:

Plaintiffs are a non-profit, pro-life, Christian church operating a pregnancy center known as A Place for Women ..., and a national non-profit pro-life membership organization with 5 affiliates in Hawaii. Plaintiffs seek to provide help and pro-life information to women in unplanned pregnancies so that they will be supported in choosing to give birth....

The Act, however, imposes government compelled speech upon the Plaintiff pregnancy centers ... in ways that undermine the centers’ messages.

The complaint contends that the law infringes free speech and free exercise of religion, is unconstitutionally vague and violates federal statutory law that protects health care entities from being required to refer patients for abortions. Christian Times reports on the lawsuit.

4th Circuit: OK For College To Downgrade Applicant Whose Interview Discussion of Religion Was Inappropriate

In Buxton v. Kurtinitis, (4th Cir., July 7, 2017), the 4th Circuit rejected free speech and Establishment Clause challenges brought by a rejected applicant seeking admission to a Maryland community college radiation therapy program.  The applicant was graded down on his interview score because he brought up the subject of religion often during the interview.  The court concluded:

... the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. Although Buxton argues that this conclusion will open the door to a wide range of discrimination ..., this fear is misplaced. That the Free Speech Clause is not implicated in this narrow context does not open the door to a parade of discriminatory horribles. Several constitutional protections against discrimination remain in full force even in a competitive application and interview process; the Free Speech Clause is simply not one of them.

The court also rejected the applicant's claim that his rejection that was based in part on his discussion of religion violates the Establishment Clause, saying in part:

... it was not Buxton’s religious belief that caused his low interview score, but rather his choice of topic in the interview room that informed the committee’s determination that he lacked interpersonal skills. This determination was “driven in part by a secular purpose,” ... and thus satisfies the first prong of Lemon.

Suit Challenges Anti-Semitism At San Francisco State University

In a press release yesterday, the Lawfare Project announced the filing of a lawsuit in a California federal district court on behalf of a group of San Francisco State University students and members of the local Jewish community seeking to end rising administration-sanctioned anti-Semitic activity on campus.  The complaint (full text) in Mandel v. Board of Trustees of the California State University, (ND CA, filed 6/19/2017), alleges that since the founding of the College of Ethnic Studies  in 1968 at SFSU, "a consistent pattern of anti-Jewish animus has emerged," culminating in threats, intimidation and disruption of the speech by Jerusalem Mayor Nir Barkat in 2016. The suit claims this conduct has violated plaintiffs' free speech and equal protection rights as well as their rights under Title VI of the 1964 Civil Rights Act.

9th Circuit Refuses To Enjoin California's Notice Requirements For Crisis Pregnancy Centers

In Mountain Right To Life, Inc. v. Becerra, (9th Cir., June 19, 2017), in a brief opinion, the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's refusal to issue a preliminary injunction against enforcement of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. (See prior posting).  The Act requires licensed crisis pregnancy centers to notify clients of programs offering free or low-cost abortions and requires unlicensed centers to notify clients that they are not state-licensed.  The court said:

The district court properly concluded that Plaintiffs cannot demonstrate a likelihood of success on the merits of their First Amendment free speech or free exercise claims.... The Act regulates licensed covered facilities’ professional speech, and is therefore subject to intermediate scrutiny, which it survives.... The notice requirement for unlicensed covered facilities survives any level of review.... And as to the free exercise claim, the Act is a neutral law of general applicability that survives rational basis review.

Supreme Court Invalidates Lanham Act Bar To Registration of Disparaging Trademarks

In Matal v. Tam, (Sup. Ct., June 19, 2017), the U.S. Supreme Court today held unconstitutional under the 1st Amendment's free speech protection the provision in the Lanham Trademark Act that prohibits registration of any trademark that

consists of ... immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 U. S. C. §1052(a)). 

The case generated three separate opinions, all ultimately concluding that the refusal to register "The Slants" as the name of an Asian-American rock group amounts to viewpoint discrimination. Five of the justices (Kennedy, Ginsburg, Sotomayor and Kagan, plus Thomas in a separate opinion) held that viewpoint discrimination always triggers heightened scrutiny.  Three others (Alito, Roberts and Breyer) said they need not reach the issue because the restriction does not pass even the lower hurdle for commercial speech. Justice Gorsuch did not participate.  New York Times reports on the decision.

The result of today's decision is that trademarks that disparage religious groups will also be able to be registered.  The rock group had argued that the Lanham Act language only applies to individuals, but in rejecting that, the Court (in a portion of the opinion joined by 7 justices) said:

[The statute] applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “institutions,” and on Tam’s reading, it also reaches “juristic” persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person.