First Amendment

Zubik v. Burwell, et al.

Issues 

  1. Does the U.S. Department of Health and Human Services’ self-certification requirement for objecting religious non-profits under the Affordable Care Act (“ACA”) violate the rights of these non-profits to freely exercise their religion?
  2. Would the government satisfy the Court’s test for overriding the Religious Freedom Restoration Act (“RFRA”) where it admits that its alternative scheme may not fulfill the regulatory objective of providing contraceptives at no cost to objecting employers?

 

The Supreme Court will decide whether requiring objecting religious non-profit organizations to sign a waiver allowing employees to receive health coverage, including contraception and abortion-inducing drugs from third parties, violates their rights under the Religious Freedom Restoration Act (“RFRA”). Petitioners, a group of Catholic non-profits (the “Catholic groups”), argue that the requirement forces them to offer health coverage to their employees in a manner inconsistent with the Catholic groups’ faith. The Catholic groups further argue that the requirement has been imposed without proof that the mandated coverage cannot be achieved through alternative means. Sylvia Burwell, the secretary of Health and Human Services, and the U.S. Department of Health and Human Services, counter that the objections of these religious organizations are not a cognizable burden under RFRA. Furthermore, their refusing to sign the waiver will frustrate the government’s compelling interest in protecting the health of all women, including female employees of Catholic groups. This decision could expand the religious exemption to the requirements of the Affordable Care Act, and will further define the limits of the First Amendment protections afforded under RFRA. 

Questions as Framed for the Court by the Parties 

1.  Does the Government violate the Religious Freedom Restoration Act (“RFRA”) by forcing objecting religious nonprofit organizations to comply with the HHS contraceptive mandate under an alternative regulatory scheme that requires these organizations to act in violation of their sincerely held religious beliefs?

2.  Can the Government satisfy RFRA’s demanding test for overriding sincerely held religious objections in circumstances where the Government itself admits that overriding the religious objection may not fulfill its regulatory objective—namely, the provision of no-cost contraceptives to objectors’ employees?

The Affordable Care Act (“ACA”), passed in 2010, requires health insurers to cover preventive care and screenings for women at no cost according to guidelines established by the U.S. Department of Health and Human Services (“HHS”). Geneva College et al. v.

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Ysursa v. Pocatello Education Association

Issues 

Whether, under the First Amendment, a state legislature may bar local governments from making payroll deductions to support political activities.

 

In 2003, the Idaho state legislature passed the Voluntary Contributions Act, which prevents state political subdivisions from making payroll deductions for political activities. The Pocatello Education Association and other organizations challenged the constitutionality of the statute, arguing that it impermissibly burdens free speech. The United States Court of Appeals for the Ninth Circuit found the state does not exercise sufficient control of local governments to allow it to regulate speech through its systems. It therefore found the statute unconstitutional. In this case, the Supreme Court will decide whether a state exercises sufficient control over local governments to allow it to regulate speech through their systems. This decision will impact whether the Court evaluates state government regulations of local governments using strict scrutiny or a “reasonableness” standard of review.

Questions as Framed for the Court by the Parties 

Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?

In 2003, the Idaho state legislature enacted the Voluntary Contributions Act (“VCA”). See Pocatello Educ. Ass'n v. Heideman, 504 F.3d 1053, 1056 (9th Cir.

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Additional Resources 

· Legal Information Institute, Wex:  First Amendment

· First Amendment Online (hosted by the University of Minnesota Law School)

· First Amendment Law Prof Blog

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Woodford v. Ngo

Issues 

Does the rejection of a prisoner’s grievance on procedural grounds, due to the untimely nature of the claim, bar the prisoner’s constitutional claims from federal court under the Prison Litigation Reform Act’s requirement that prisoners exhaust all administrative remedies before filing suit?

 

In 2000, California state prisoner Viet Mike Ngo was placed in administrative segregation for alleged misconduct. Following his release, he was prevented from taking part in certain programs deemed critical for parole eligibility. Ngo submitted a formal grievance that was time-barred by the Appeals Coordinator because it was not filed within the requisite 15 working days after the event. Under the Prison Litigation Reform Act (“PLRA”), prisoners are prevented from filing suit until administrative remedies are exhausted. The District Court ruled that Ngo failed to exhaust his remedies under PLRA and was therefore precluded from seeking federal relief. The Ninth Circuit Court of Appeals reversed the decision, holding that Ngo exhausted all remedies as required by the PLRA. The Supreme Court will address whether an untimely administrative appeal satisfies this exhaustion requirement under PLRA.

Questions as Framed for the Court by the Parties 

Does a prisoner satisfy the Prison Litigation Reform Act’s administrative exhaustion requirement by filing an untimely or otherwise procedurally defective administrative appeal?

Respondent Viet Mike Ngo is a prisoner serving a life sentence in California. Brief for the United States as Amicus Curiae Supporting Petitioners, at 1. On October 26, 2000, Ngo, an inmate at San Quentin State Prison, was placed in administrative segregation as punishment for alleged “inappropriate activity” with Catholic volunteer priests. Brief for Respondent at 2, .

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Wisconsin Right to Life v. Federal Election Commission

Issues 

Although McConnell v. FEC upheld the primary definition of electioneering communications, did it also preclude parties from challenging the application of that definition to prohibit certain forms of broadcast advertisements? 

 

Plaintiff Wisconsin Right to Life broadcasted three advertisements condemning the Senate for filibustering President Bush’s judicial nominees and urging viewers to contact Senator Feingold who was campaigning for reelection at the time. Wisconsin Right to Life believed that continued broadcasting of the ads would violate the Bipartisan Campaign Reform Act’s prohibition on electioneering communications. Accordingly, Wisconsin Right to Life filed suit to request an injunction against the Federal Election Commission for possible enforcement of the restrictions on electioneering against Wisconsin Right to Life, and a judgment that the definition of electioneering, as applied to Wisconsin Right to Life’s ads, violated the Constitution. The court relied on a prior Supreme Court case, McConnell v. Federal Election Commission, to dismiss Wisconsin Right to Life’s “as-applied” challenge. Wisconsin Right to Life now argues that McConnell did not, indeed could not, preclude as-applied challenges and that the ads were a permitted form of grassroots lobbying, not electioneering. The Federal Election Commission argues that McConnell squarely precluded as-applied challenges and that Wisconsin Right to Life’s distinction between grassroots lobbying and electioneering is a line drawn in the sand on a windy day.

Questions as Framed for the Court by the Parties 

Whether as-applied challenges are permitted to the prohibition on corporate disbursements for electioneering communications at 2 U.S.C. § 441b after McConnell v. FEC, 540 U.S. 93 (2003)?

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Washington State Grange v. Washington State Republican Party

 

The citizens of the State of Washington enacted a “top-two” primary law, Initiative 872, which allows primary voters to vote for any candidate regardless of party affiliation. The top-two candidates from the primary then advance to the general election. The law also permits candidates for some offices to disclose the name of their preferred political party on the ballot. The Republican Party argues that the law violates the right of association protected by the First AmendmentWashington State Grange argues that a candidate’s personal “preference” serves only as information for the voter, while the parties retain the right to nominate and endorse their own candidates. The Court must decide whether top-two primary systems that permit candidates to disclose their party preference on the ballot, without having any formal affiliation with the political party, violate political parties’ associational rights.

The following facts are taken from the Ninth Circuit’s opinion, 460 F.3d 1108 (9th Cir. 2006): the state of Washington employed a “blanket primary” system from 1935 until 2003. Blanket systems allow all voters, regardless of party affiliation, to vote for any candidate on the primary ballot.

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United States v. Williams

 

After Respondent Williams sent a hyperlink containing pornographic images of children to an Internet chat room dedicated to child pornography, he was prosecuted under the PROTECT ACT (18 U.S.C. � 2252A(a)(5)(B)) for "pandering" material in a manner intending to cause another to believe that the material contains child pornography. Williams pled guilty but reserved the right to challenge whether the PROTECT Act was unconstitutionally overbroad and vague and thus interfered with First Amendment free speech. In particular, Williams argued that the statute criminalized speech about child pornography when the actual materials were not pornographic or did not exist. Williams further claimed that the statute similarly criminalized those who appear to be but are not actually discussing child pornography. The Eleventh Circuit Court held the PROTECT Act unconstitutional, and the United States government appealed. The United States argues that the PROTECT Act is neither overbroad nor vague because it only criminalizes speech which the First Amendment does not protect. It further claims that the statute requires intent and that the PROTECT Act is necessary to combat child pornography.

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United States v. Stevens

Issues 

May the government permissibly ban depictions of animal cruelty under the First Amendment?

 

The United States prosecuted Robert J. Stevens (“Stevens”) for violating 18 U.S.C. § 48, which states: “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.” Stevens was prosecuted for selling videos depicting dog fights. Stevens claimed that § 48 violates his First Amendment right to free speech and is therefore unconstitutional. The Third Circuit held that § 48 reached a form of protected speech and that the government’s interest in preventing animal cruelty is not a sufficiently compelling interest to justify a ban on depictions of animal cruelty. How the Supreme Court decides this case will reflect its view on the scope of the First Amendment right to speech and affect the power of Congress to identify new areas of unprotected speech.

Questions as Framed for the Court by the Parties 

Whether 18 U.S.C. § 48 is facially invalid under the Free Speech Clause of the First Amendment.

Robert J. Stevens (“Stevens”) operated a business that advertised and sold pit bull-related videos and merchandise. United States v. Stevens, 533 F.3d 218, 220–221 (3rd Cir.

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United States v. Alvarez

Issues 

Under the First Amendment, can the federal government criminalize falsely claiming to have received a military award?

 

Respondent Xavier Alvarez, an elected member of the Three Valleys Water District, lied about receiving a Congressional Medal of Honor during a board meeting. His lie violated the Stolen Valor Act, which Congress enacted to preserve the value of military awards, and he was criminally convicted and sentenced to probation. Alvarez challenged the facial constitutionality of the Act under the First Amendment, and prevailed on appeal. The United States argues that a “breathing space” test should apply because the Act only limits knowingly false factual statements, and that under this test the Act does not violate the First Amendment. Alvarez counters that strict scrutiny should apply because the Act imposes a content-based restriction, and under strict scrutiny, the Act is an unconstitutional restriction of free speech. The ruling in this case may affect the value of military awards, as well as the legal treatment of other false representations.

Questions as Framed for the Court by the Parties 

Section 704(b) of Title 18, United States Code, makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States."

The question presented is whether 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment.

In 2006, Congress enacted the Stolen Valor Act, 18 U.S.C.

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Tory v. Cochran

In 1983, Ulysses Tory retained Johnnie L. Cochran, Jr. as his attorney in a personal injury lawsuit. Dissatisfied with Cochran's manner of representation, Tory complained that Cochran was conspiring with the City of Los Angeles against him. Tory threatened Cochran and claimed that he would "settle" his conspiracy claims against Cochran if Cochran quickly paid him $10 million…." Cochran consequently withdrew as Tory's lawyer.  Tory made subsequent requests for money, which Cochran ignored. 

In the 1990's, Tory and a group of people began picketing outside Cochran's office and the Los Angeles Superior Court. Tory had brought the picketers to these locations. In 2000, Tory wrote to Cochran demanding more money.  In October of that year, Cochran filed this lawsuit against Tory and alleged causes of action for defamation and invasion of privacy. A preliminary injunction was granted and the case was tried in March 2002. The trial court held that Cochran was entitled to a permanent injunction.  The permanent injunction forever prohibits Tory from all future speech in any public forum, regardless of content or context, about Cochran, an admitted public figure. Tory appealed to the California Court of Appeal, which ultimately affirmed the permanent injunction decision of the lower court.  Now the United States Supreme Court must decide whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.

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Sorrell v. IMS Health, Inc.

Issues 

Can a state prohibit the nonconsensual sale of doctors’ prescribing information contained in nonpublic prescription drug records, or is such a restriction an improper infringement on the free speech of pharmaceutical companies?

 

In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients’ personal information for marketing purposes without the prescribing physician’s consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont’s interests of protecting medical privacy, controlling health care costs, and protecting public health. On the other hand, the pharmaceutical companies argue that Act 80 is unconstitutional because it discriminates against the speech of pharmaceutical manufacturers and it is not related to Vermont’s state interests. The Supreme Court’s decision will affect patients’ and physicians’ privacy, the marketing of prescription drugs, and the status of other laws protecting consumer privacy.

Questions as Framed for the Court by the Parties 

Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment.

When filling prescriptions, Vermont pharmacies collect personal data about the patients and sell the data to data miningcompanies. See IMS Health, Inc. v. Sorrell, 630 F.3d 263, 267 (2d Cir. 2010).

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