First Amendment

303 Creative LLC v. Elenis

Issues

Does a public accommodation law violate the Free Speech Clause of the First Amendment when it compels an artist to create custom designs that go against her beliefs?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (“CADA”) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Questions as Framed for the Court by the Parties

Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Colorado's Anti-Discrimination Act (“CADA”) limits a place of public accommodation’s ability to refuse services to a customer based on their identity. 303 Creative LLC v.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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advocacy of illegal action

Agency for International Development v. Alliance for Open Society International, Inc.

At the end of 2011, 34 million people were living with HIV, according to the World Health Organization, and AIDS took the lives of 1.7 million people that same year. In 2003, Congress took action to prevent the spread of infectious diseases worldwide by passing the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act). The Act designates federal funds to non-governmental organizations that fight against the spread of HIV/AIDS so long as the organization also opposes prostitution and sex trafficking. Petitioner United States Agency for International Development (USAID) argues that this policy requirement targets prostitution and sex trafficking as significant contributors to the spread of HIV/AIDS while minimally impacting, if at all, the speech of a federally funded organization. In contrast, respondent Alliance for Open Society International (AOSI) argues that the policy requirement violates the protections of the First Amendment by forcing a federally funded organization to adopt a viewpoint that may not only be insensitive to localized concerns regarding the trust of victims but also may distort public debate by inhibiting field research.

Questions as Framed for the Court by the Parties

Whether the United States Leadership Against HIV/ AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

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Issue

Does the government violate the First Amendment by funding organizations to stop the spread of HIV/AIDS only if they also oppose prostitution and sex trafficking?

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Air Wisconsin Airlines v. Hoeper

Issues

Can a court deny an airline immunity under the Aviation and Transportation Security Act for a report made by its employees to the Transportation Security Administration about another employee, without first determining that the airline's disclosure was materially false? 

Former co-workers reported pilot William Hoeper to the Transportation Security Administration ("TSA"), claiming they were concerned that Hoeper, who was about to fly home as a passenger, was mentally agitated and might be armed. Hoeper sued Air Wisconsin for defamation, alleging that the co-workers’ statements to the TSA were misleading and the result of animosity against him. The Court will decide whether immunity under the Aviation and Transportation Security Act ("ATSA"), which would cover statements made by airlines to the TSA, can be denied without a court first determining that the disclosure was false. While Hoeper argues that his co-workers’ statements were clearly materially false, Air Wisconsin argues that the lower court needed to make a determination that the statements were false before denying immunity to Air Wisconsin. The Supreme Court’s ruling in this case will have a direct impact on the scope of protection for airlines that report suspicious activities to the TSA. The Court’s ruling may also have a broader impact on First Amendment jurisprudence. 

Questions as Framed for the Court by the Parties

  1. Whether a court can deny ATSA immunity without deciding whether the airline's report was true.  
  2. Whether the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving a statement was false. 

Note: The Court granted certiorari to Question 1 presented by the petition.

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Facts

William Hoeper was a pilot for Air Wisconsin Airlines Corporation (“Air Wisconsin”) from 1998 to 2004. Hoeper v. Air Wisconsin Corp., 232 P.3d 230, 233, 235 (Colo. App.

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Americans for Prosperity Foundation v. Rodriquez

Issues

Does California’s Schedule B charitable donor disclosure requirement violate the First Amendment?

This case asks the Supreme Court to determine whether a state charitable donor disclosure regulation unconstitutionally infringes on donors’ and charitable organizations’ free speech and association rights. California recently started enforcing its Schedule B regulation, which requires charitable organizations to provide the confidential names of their financial donors. Petitioners Americans for Prosperity Foundation and Thomas More Law Center argue that this compelled disclosure is facially unconstitutional because it fails “exacting” scrutiny and unconstitutional as applied to them because of the extreme risks to their political minority donors. Respondent Matthew Rodriquez, the Attorney General of California, argues that the regulation is necessary to enforce charitable fraud laws and that California can meet its regulatory objectives while simultaneously protecting donors’ confidential data. The Supreme Court’s decision will determine whether charities in California must disclose the names of their donors to state regulators and will also determine the bounds of organizational free association rights.

Questions as Framed for the Court by the Parties

Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.

California has a law that requires charitable organizations to submit various tax forms to the state, including Schedule B to IRS Form 990 (“Schedule B”), which contains certain donor information. Ams. for Prosperity Found. v. Becerra at 1183. That information is normally considered confidential.

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Arizona Free Enterprise v. Bennett; McComish v. Bennett (consolidated)

Issues

1. Under Citizens United v. Federal Election Commission and Davis v. Federal Election Commission, does the matching public funding provision of Arizona’s Citizens Clean Elections Act violate the First Amendment protection of political speech?

2. Does the Citizens Clean Elections Act advance a compelling state interest in preventing corruption, or does it unconstitutionally burden protected political speech?

 

At issue in these consolidated cases is the constitutionality of Arizona’s Citizens Clean Elections Act. Petitioners—several past and present candidates for elected office, and two political action committees—claim that the matching public funding provision of the Act burdens the free speech of candidates who do not utilize public funding. Respondent, Ken Bennett, in his official capacity as Arizona Secretary of State, contends that the Act is designed to prevent corruption and does not impose any actual burden on protected political speech. The Ninth Circuit Court of Appeals held that the Act did not violate the First Amendment, because it furthered a compelling government interest in preventing corruption. In resolving this question, the Supreme Court must strike a balance between the First Amendment right to protected political speech and clean election measures implemented by a state. This decision will affect state and national elections that utilize matching public funding schemes.

Questions as Framed for the Court by the Parties

Arizona Free Enterprise

In Davis v. FEC, 128 S. Ct. 2759 (2008), this Court held that the First Amendment forbids the government from attempting to level the playing field in elections by raising contribution limits for candidates who are outspent by self-financed opponents. Arizona's Citizens Clean Elections Act achieves a similar result by providing extra subsidies in the form of "matching funds" to publicly financed candidates who are outspent by independent expenditure groups and privately financed candidates. The questions presented are:

1. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates?

2. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by the fundraising or expenditures by these candidates' privately financed opponents?

McComish

1. Whether Citizens United v. Federal Election Comm'n, 130 S. Ct. 876 (2010), and Davis v. Federal Election Comm'n, 128 S. Ct. 2759 (2008), require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when independent expenditures are made, above a "spending limit."

2. Whether Citizens United and Davis require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize "influence" and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner.

In 1998, the State of Arizona passed the Citizens Clean Election Act (“the Act”), which created a framework through which the state provides public financing to candidates for statewide political offices. See McComish v. Bennett , 611 F.3d 510, 513 (9th Cir. 2010) .

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The New York Times, Adam Liptak: Justices to Assess Arizona Campaign Financing (Nov. 29, 2010)

CNN, Bill Mears: High Court to Review Arizona Election Finance Law (Nov. 29, 2010)

Huffington Post, Paul Davenport: Supreme Court Blocks Public Financing in Arizona Elections (June 8, 2010)

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Beard v. Banks

Issues

What right do prisoners have to read secular publications and display photographs while serving their sentences? To what extent can prison officials infringe on this right to serve the prison’s legitimate policy goals?

 

The Long Term Segregation Unit (“LTSU”) of the State Correctional Institution at Pittsburgh, Pennsylvania was established to house “the worst of the worst” of the prison’s population. When they first enter the LTSU, inmates cannot keep newspapers, magazines, or photographs in their cells, though they have limited access to religious and legal materials. In this case, the Supreme Court will decide whether the prison’s regulation is “rationally related to a legitimate penological interest,” and therefore constitutional under the Court’s holding in Turner v. Safley. 

Questions as Framed for the Court by the Parties

Does a prison policy that denies newspapers, magazines and photographs to the most difficult inmates in the prison system in an effort to promote security and good behavior violate the 1st Amendment?

The Long Term Segregation Unit (“LTSU”) in Pittsburgh’s State Correctional Institution serves as a prison within a prison, housing inmates deemed “too disruptive, violent or problematic” to reside in the general prison population. Banks v. Beard, 399 F.3d 134, 136–137 (3rd Cir. 2005). Inmates may end up in the LTSU after unsuccessful escape attempts, assaults on guards or fellow prisoners, or incidents of sexual predation. Id.

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Benisek v. Lamone

Issues

The Court will consider three issues: (1) did the district court err when it found that, for First Amendment retaliatory gerrymandering claims, establishing an actual, concrete injury requires proof that the gerrymandered map has dictated and will continue to dictate the results of every election following the gerrymander; (2) did the district court err when it held that burden-shifting is not applicable to First Amendment retaliation challenges to partisan gerrymandering in Mt. Healthy City Board of Education v. Doyle; and (3) did the district court err in finding that the record does not prove that the 2011 gerrymander dictated the Democratic victories in 2012, 2014, and 2016 in Maryland’s Sixth Congressional District?

In 2012 the State of Maryland, under Democratic Governor Martin O’Malley, and with the help of NCEC Services, a company specializing in electoral analytics and political strategy, redrew its Sixth Congressional District to comply with one-person-one-vote rules. This resulted in the exclusion of approximately 66,000 registered Republicans and the inclusion of 24,000 Democrats in the District. O. John Benisek alleges that the new Sixth District was the result of backdoor meetings intended to consolidate Democratic control of the District. Linda Lamone, the State Administrator of Elections, on the other hand, contends that the current district lines more closely resemble the historic party composition of the voters. Benisek argues that this redistricting treats Republicans unfavorably in violation of the First Amendment. Lamone counters that this is not a valid claim in court because no rigorous judicial standard can be created to assess the impact of gerrymandering in redistricting efforts. Lamone contends that the Plaintiffs cannot put forth a clear, neutral, and judicially manageable standard for these cases, and thus the political process should resolve the issue. But Benisek responds that this is a First Amendment case where the correct inquiry is whether voters suffered retaliation for their political beliefs. The outcome of this case will have implications for the proper role of the legislature and the judiciary in the redistricting process and for levels of citizen civic engagement and political influence.

Questions as Framed for the Court by the Parties

(1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

Before 1991, Maryland’s Sixth Congressional District was composed of more registered Democrats than registered Republicans. Brief of Appellees, Lamone et al. at 3. However, in 1991, the district lines were redrawn, leaving registered Republicans outnumbering registered Democrats.

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Burwell v. Hobby Lobby Stores; Conestoga Wood Specialties Corp. v. Sebelius

Issues

  1. Does the Religious Freedom Restoration Act protect for-profit corporations?
  2. Does the contraceptive-coverage Mandate of the Patient Protection and Affordable Care Act of 2010 violate corporations’ religious exercise rights?

 

As part of the Affordable Care Act ("ACA"), the Department of Health and Human Services ("HHS") adopted a mandate requiring that employment-based health plans covered by the Employment Retirement Income Security Act ("ERISA") include twenty contraceptive methods. Two corporations, Hobby Lobby and Conestoga Wood, sued, objecting on religious grounds to the inclusion of four of the methods because they prevent the implantation of a fertilized egg. The corporations argue that the Mandate offends their religious rights under the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause. The government argues that corporations do not have these rights; and, in any case, the Mandate is statutorily and constitutionally permissible. The Supreme Court will consider whether for-profit corporations can sue under RFRA or the Free Exercise  Clause,  and whether this mandate violates corporations’ right to exercise religion. The Court’s ruling may significantly impact foundational principles of corporate law and the scope of corporations’ First Amendment rights. This case will also impact the Affordable Care Act’s power to mandate health plans.

Questions as Framed for the Court by the Parties

Sebelius v. Hobby Lobby Stores

The Religious Freedom Restoration Act of 1993 (RFRA) 42 U.S.C. 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation's owners.

 

Conestoga Wood Specialties Corp. v. Sebelius

Whether the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the Patient Protection and Affordable Care Act of 2010 (“ACA”).

Under the Patient Protection and Affordable Care Act (“ACA”), employment-based health care plans covered by the Employee Retirement Income Security Act (“ERISA”) are required to provide coverage for certain preventative health services. SeeHobby

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