First Amendment

Carney v. Adams

Issues

(1) Does a political independent have standing to challenge a provision of the Delaware Constitution requiring that no more than a bare majority of judges on the state’s highest courts may belong to the same political party (the “bare majority provision”) and that other judges on those courts must belong to the other major party (the “major party provision”); (2) does the major party provision violate potential judicial appointees’ First Amendment rights of association; and (3) is the bare majority provision severable from the major party provision such that the bare majority provision can survive a challenge to the major party provision?

This case asks the Supreme Court to decide the constitutionality of two provisions of the Delaware Constitution which require that the two major political parties be represented as evenly as possible on Delaware’s highest courts. John Carney, the Governor of Delaware, argues that James R. Adams, who challenges the Delaware Constitution, lacks Article III standing to assert these claims because Adams’ has suffered only a hypothetical injury and that injury was self-inflicted through a personal choice to change political affiliation. Governor Carney additionally contends that the state constitutional provisions are consistent with the First Amendment because judges fall under a policymaking exception to the First Amendment’s prohibition on using political affiliation as job criterion, and because the constitutional provisions are the only viable way to advance the state’s compelling interest in public confidence in the judiciary’s neutrality. Finally, Governor Carney asserts that in the event that the Court strikes down the major party provision, the bare majority provision of the Delaware Constitution is severable and thus should remain intact. Adams responds that he has standing to assert these claims by virtue of Delaware’s denial of any potential judgeship for him based on his political affiliation and the chilling effect that he experiences on his associative freedoms due to the constitutional provisions. Next, Adams contends that the provisions violate the First Amendment and do not fall within the exception for using political association as a job criterion for policymakers; therefore, he argues, the Court should apply strict scrutiny in its review of this alleged First Amendment violation. Finally, Adams asserts that the bare majority provision is not severable from the major party provision and therefore, if one is invalidated, both must be struck down. The Supreme Court’s decision in this case will affect state interests in creating a politically neutral judiciary and the methods states can use to achieve this goal, as well as demonstrate the merits and burdens of associating political affiliations with judicial positions. 

Questions as Framed for the Court by the Parties

(1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.

James R. Adams is a resident of Delaware and a member of the Delaware State Bar. Adams v. Governor of Delaware at 169. For years, Adams desired a position as a Delaware state judge. Id. In 2009, he applied to be a Family Court Commissioner, but was not selected. Id. at 172.

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Catholic Charities Bureau, Inc., et al., v. Wisconsin Labor & Industry Review Commission, et al.

Issues

Does Wisconsin violate the First Amendment’s religion clauses by denying a religious organization a tax exemption available under the state’s unemployment compensation system to organizations that are church-controlled and operated for primarily religious purposes?

This case asks the Court to determine whether Wisconsin violates the Constitution’s First Amendment by denying a particular religious organization a tax exemption under Wisconsin’s unemployment compensation system. Catholic Charities argues that the Wisconsin Supreme Court’s interpretation and application of the statute to deny the organization an exemption violates the First Amendment’s Establishment and Free Exercise Clauses. Specifically, Catholic Charities argues that the court’s decision violates the church’s autonomy, entangles the state in religious matters, and discriminates among religions for their church organizational structure and their distinct religious beliefs and practices. Wisconsin, on the other hand, maintains that the exemption and its interpretation effectuate no constitutional violations. Wisconsin argues that the exemption and the court’s interpretation do not infringe on the church’s autonomy, do not cause the state to become excessively entangled in religion, and do not discriminate among religions. This case directly calls for a balancing of church and state interests while also having implications for both charities and unemployment insurance on a large scale.

Questions as Framed for the Court by the Parties

Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior. 

In 1932, Wisconsin passed the nation’s first unemployment compensation statute, Wisconsin Statute § 108.02(15). Catholic Charities Bureau, Inc. v. State at 16. The statute implemented unemployment compensation coverage for unemployed workers.

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Chamber of Commerce v. Brown

 

The California state legislature passed an act, AB 1889, which bars private employers receiving state funds from using the funds to assist, promote, or deter union organizing. AB 1889 also prohibits private employers who participate in state programs and who receive state funds from using those funds for the purpose of promoting or hindering union organization. The United States Chamber of Commerce claims that this statute is preempted by the National Labor Relations Act ("NLRA"). A finding for the Chamber of Commerce would protect employer free speech over attempts by states to define neutrality between management and labor. Conversely, a finding for California would provide unions potential safeguards in their struggle against employers seeking to stave off union organizing while furthering the overall policy of California of remaining neutral in the struggle between management and labor.

 
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    Chiafalo v. Washington

    Issues

    Under the First Amendment and the Constitution, is it unconstitutional for Washington State to fine presidential electors who voted for a candidate that was not nominated by their political party?

    This case asks whether a state may sanction a presidential elector who does not vote according to the state’s legislatively mandated procedures for how presidential electors must vote. The Electoral College is comprised of each state’s electors based on its number of U.S. senators and representatives. Under Article II of the Constitution, each state selects the presidential electors who will cast the state’s allotted votes for the President and Vice President. In Washington State, each political party selects a group of electors who will represent the State if their candidate receives the most votes on Election Day in November. Washington law requires that each of its appointed electors pledge that they will vote for the candidate nominated by their party. Anyone who does not fulfill this pledge and becomes a “faithless elector” is subject to a civil penalty of up to $1,000. Petitioners Chiafalo, Guerra, and John were fined after violating their pledge. They argue that Washington’s law sanctioning faithless electors is unconstitutional because the Constitution forbids the states from controlling or imposing any conditions on its state’s presidential electors. Respondent Washington State counters that the Constitution does not impose any conditions on the methods that states use to select their electors and therefore, states can choose whether or not to impose any restrictions on their presidential electors. The outcome of this case has implications on the 2020 presidential election, the institutional legitimacy of the Electoral College, and state involvement with presidential electors.

    Questions as Framed for the Court by the Parties

    Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.

    The people of the State of Washington vote for president on Election Day in November.

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    Chiles v. Salazar

    Issues

    Considering a state’s regulatory authority over professional conduct, does the First Amendment permit states to regulate the content of certain conversations between counselors and their clients?

     

    This case asks the Supreme Court to decide whether Colorado’s Minor Conversion Therapy Law (“MCTL”), which prohibits mental health professionals from providing LGBTQ+ conversion therapy to minor clients, violates the Free Speech Clause of the First Amendment. Kaley Chiles, a licensed professional counselor in Colorado, argues that MCTL infringes on constitutionally protected speech by discriminating against certain content and viewpoints. She asserts that Colorado failed to meet its burden of strict scrutiny because the statute does not further a compelling state interest, nor is it narrowly tailored. Patty Salazar, in her official capacity as Executive Director of the Colorado Department of Regulatory Agencies, argues that states have the power to regulate professional conduct, even if doing so incidentally affects speech. Salazar maintains that Chiles’s position undermines a state’s ability to regulate the conduct of mental health professionals. The outcome of this case will also have significant ramifications for the availability of certain treatment methods.

    Questions as Framed for the Court by the Parties

    Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause of the First Amendment.

    In 2019, the Colorado legislature added the Minor Conversion Therapy Law (“MCTL”) to the Mental Health Practice Act (“MHPA”), which regulates the practice and conduct of mental health professionals in the state. 

    Acknowledgments

    The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

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    Christian Legal Society v. Martinez

    Issues

    Whether a state law school may officially require that a student organization make its membership open to all students as a condition of receiving certain benefits associated with official recognition.

     

    The Hastings Christian Legal Society (“CLS”) required that members agree with its core religious beliefs and pledge to live accordingly. Due to this requirement, the University of California-Hastings College of Law refused to recognize CLS as a registered student organization. Specifically, CLS’s membership requirement violated a nondiscrimination policy prohibiting registered student organizations from discriminating on the basis of religion or sexual orientation. CLS argued that Hastings violated its First Amendment right to free association and free exercise of religion by denying it an exemption from the nondiscrimination policy. The Ninth Circuit rejected CLS’s claims, holding that the school’s policy was viewpoint-neutral and reasonable in light of the school’s educational mission. The Supreme Court’s decision will settle a circuit split over whether a public school can require a religious student organization to open its membership to all students, regardless of their beliefs

    Questions as Framed for the Court by the Parties

    Whether the Ninth Circuit erred when it held, directly contrary to the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.

    Respondent University of California-Hastings College of Law (“Hastings”) is a public law school in San Francisco. See Brief for Petitioner, Hastings Christian Legal Society (“CLS”) at 2. Hastings maintains a program to support registered student organizations (“RSO”), providing, among other benefits, funding and access to school facilities. See 

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    • Annotated U.S. Constitution: First Amendment, Right of Association

    • Michael C. Dorf, The Supreme Court Reviews a Conflict Between Equality and Freedom of Association, Findlaw’s Writ (Dec. 14, 2009).

    • Dorf on Law: Another Perspective on Christian Legal Society v. Martinez (Dec. 14, 2009)

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    City of Austin, Texas v. Reagan National Advertising of Texas, LLC.

    Issues

    Is the City of Austin’s sign code, which distinguishes between on- and off-premises signs, an unconstitutional content-based regulation of speech?

    This case asks the Supreme Court to consider whether a city sign code’s differential treatment of on-premises and off-premises signs constitutes a content-based regulation of speech. The City of Austin’s sign code permits on-premises, but not off-premises, signs to be digitized, and bans the construction of new off-premises signs. Austin argues that this distinction is a lawful, content-neutral regulation. Reagan National Advertising of Texas counters that Austin’s on- versus off-premises distinction constitutes an unlawful, content-based restriction under Reed v. Town of Gilbert and the Court’s First Amendment jurisprudence. The outcome of this case has important implications for governments considering roadway safety measures and for entities who advertise through off-premises signs like billboards.

    Questions as Framed for the Court by the Parties

    Whether the Austin city code’s distinction between on-premises signs, which may be digitized, and off-premises signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

    Respondents Reagan National Advertising of Austin, LLC. (“Reagan”) and Lamar Advantage Outdoor Company, L.P. (“Lamar”), are involved in the outdoor advertising business. Reagan National Advertising of Austin, Inc. v. City of Austin, at 699. In April and June 2017, Reagan applied for permits to convert their existing off-premises signs into digital signs.

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    Counterman v. Colorado

    Issues

    Is speech a true threat, unprotected by the First Amendment, only when the speaker intended it as threatening, or is it enough for the government to show that a reasonable person would find the speech threatening?

    This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.

    Questions as Framed for the Court by the Parties

    Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

    In 2014, a singer-songwriter named C.W. received a Facebook friend request from Billy Raymond Counterman. People v. Counterman at 1042-43. Over the next two years, Counterman proceeded to send her direct messages that C.W. found “weird” and “creepy.” Id. at 1043. C.W. never replied to any of the messages and repeatedly blocked Counterman on Facebook to prevent him from messaging her further, but he continued making new accounts and messaging her.

    Acknowledgments

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

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