First Amendment

Davenport v. Washington Education Association; Washington v. Washington Education Association

Issues

  1. Does a labor union have a First Amendment right to spend the wages of non-union members for political purposes?
  2. Does a law requiring labor unions to obtain the permission of non-union members before using their paid fees for political purposes (instead of allowing the unions to use such fees from any nonmembers who do not expressly opt out of such use) unconstitutionally violate the unions' First Amendment rights?

 

The State of Washington and several Washington educational employees brought suit against the Washington Education Association alleging that the union impermissibly used non-union member “shop fees” to finance political activities in violation of Wash. Rev. Code § 42.17.760's requirement that the union receive affirmative authorization from nonmembers before using their fees for political purposes. The Washington Supreme Court sided with the union and struck down § 760 as unconstitutional. Washington argues that the union does not have a First Amendment right to use shop fees for political purposes. The union responds that § 760 essentially blocks its ability to assert a collective political voice and must survive strict scrutiny to pass constitutional muster. The Supreme Court's decision will determine the balance of First Amendment protection granted to a labor union relative to the protection afforded to dissenting nonmembers who pay shop fees.

Questions as Framed for the Court by the Parties

  1. Do labor union officials have a First Amendment right to seize and use for politics the wages of employees who have chosen not to become union members?
  2. Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the First Amendment rights of labor unions?
  3. Does the requirement in Wash. Rev. Code § 42.17.760 that nonmembers must affirmatively consent (opt-in) before their fees may be used to support the union's political agenda violate the union's First Amendment rights?

The Washington Employment Association (WEA) is the exclusive bargaining agent for 70,000 Washington state educational employees. Washington State Public Disclosure Commission v. Washington Education Association (WEA), 130 P.3d 352, 354 (2006).

Submit for publication
0

Doe # 1 v. Reed

Issues

Whether Washington’s Public Records Act (“PRA”), which makes signatures on referendum petitions part of public records, violates the First Amendment.

 

The dispute in this case centers on Washington's Public Records Act ("PRA"), which requires state and local governments to make public the identities of referendum petition signers. Petition signers challenged the constitutionality of this disclosure, but the Ninth Circuit held that disclosure of petition signers’ identities serves an important government interest and promotes government accountability. Specifically, petitioners, John Doe #1, et al. ("Doe #1"), argue that petition signing is core political speech and, therefore, is subject to First Amendment protections. Respondents, Washington Secretary of State Sam Reed, et al. ("Reed"), contend that petition signing, especially the signing of referendum petitions, is not political speech. Rather, Reed asserts that signing a referendum is a legislative act and a "quintessentially public" exercise. Thus, in Doe #1 v. Reed the Supreme Court must decide 1) whether petition signers’ First Amendment rights to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information and 2) whether compelled disclosure of petition signers’ identities is narrowly tailored to further a compelling state interest.

Questions as Framed for the Court by the Parties

The district court granted a preliminary injunction protecting against public disclosure, as opposed to private disclosure to the government only, of those signing a petition to put a referendum on the ballot ("petition signers"). The Ninth Circuit reversed, concluding that the district court based its decision on an incorrect conclusion of law when it determined that public disclosure of petition signers is subject to, and failed, strict scrutiny. The questions presented are:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

On May 18, 2009, the Governor of Washington signed SB 5688. See Doe #1 v. Reed, 586 F.3d 671, 674-75 (9th Cir.

Written by

Edited by

Submit for publication
0

Duryea v. Guarnieri

Issues

Whether public employees may sue their government employers for retaliation under the First Amendment's Petition Clause when their petitions concern only matters of private interest.

 

In 2003, the Borough of Duryea, Pennsylvania fired its police chief, Charles J. Guarnieri, Jr. Guarnieri filed a grievance leading to arbitration and his reinstatement. When Guarnieri returned to his position, Duryea issued him a number of directives limiting the tasks he could and could not do  on  the job. Guarnieri filed a second grievance, leading to modification of the directives. Subsequently, Guarnieri sued Duryea in District Court alleging that Duryea issued the directives in retaliation for his filing of the 2003 grievance, violating his First Amendment right to petition. After a jury found for Guarnieri in District Court, Duryea appealed to the Third Circuit. The Third Circuit held that the First Amendment protects public employees in filing grievances concerning any matter, even those of a personal nature. The Supreme Court granted certiorari to determine whether public employees may sue their employers for  retaliation,  when the alleged retaliation is for the filing of grievances based on private matters rather than issues of public concern.

Questions as Framed for the Court by the Parties

Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue.

In February 2003, the Borough of Duryea, Pennsylvania ("Duryea") fired Police Chief Charles J. Guarnieri, Jr. See Guarnieri v. Borough of Duryea, 364 Fed. Appx. 749, 751 (3d Cir.

Written by

Edited by

Additional Resources

· Annotated Constitution, Legal Information Institute: First Amendment: Government as Employer.

· Society for Human Resource Management, Joanne Deschenaux: High Court to Decide Scope of Public Employees’ Retaliation Protection (Oct. 14, 2010).

· Business Management Daily, Hera S. Arsen: Supremes at Work: 8 Key Employment Law Cases on Docket (Nov. 26, 2010).

· First Amendment Center, Tony Mauro: Could Petition Shield Outspoken Public Employees? (Oct. 13, 2010).

Submit for publication
0

Egbert v. Boule

Issues

Does a plaintiff have a Bivens implied right of action against a federal officer under either the First Amendment or under the Fourth Amendment when the officer is engaged in immigration enforcement functions?


This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations.

Questions as Framed for the Court by the Parties

1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

Robert Boule is the owner of a bed and breakfast in Blaine, Washington. Boule v. Egbert at 1312. Boule’s property directly adjoins the United States-Canada border. Id. In March 2014, Boule encountered Erik Egbert, a Customs and Border Protection (“CBP”) agent. Id. Egbert asked Boule about guests staying at Boule’s inn.

Additional Resources

Submit for publication
0

Elonis v. United States

Issues

Does a conviction for threatening another person in interstate communications require proof of the defendant’s subjective intent to threaten and, if not, does the First Amendment prevent a conviction based only on a showing that a reasonable person would regard the statement as threatening?

The Supreme Court granted certiorari to address a circuit split on the question of whether the 18 U.S.C. § 875(c) (“§ 875(c)”) requires a showing of subjective intent in order to convict and, if not, whether conviction based only on a showing that a reasonable person would regard the statement as threatening violates the First Amendment. In this case, Anthony D. Elonis was convicted for publishing a series of Facebook posts describing committing acts of violence towards various people in violation of § 875(c). Elonis contends that the government must offer proof of a subjective intent to threaten, and that his speech is protected by the First Amendment. The United States, however, argues that § 875(c) requires only proof of general intent and that threats as defined in § 875(c) should not receive First Amendment protection. The Supreme Court’s ruling in this case could affect free speech rights as well as the rights of those who are victims of threats.

Questions as Framed for the Court by the Parties

It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. §875(c) requires proof of the defendant’s subjective intent to threaten.”

Anthony D. Elonis was indicted with five counts of making threats in violation of 18 U.S.C. § 875(c) (“§ 875(c)”). United States v. Elonis, 730 F.3d 321, 327 (3rd Cir. 2013). Section 875(c) provides that it shall be illegal to transmit “in interstate or foreign commerce any communication containing . . .

Written by

Edited by

Additional Resources

Submit for publication
0

Establishment Clause

The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.

Expressions Hair Design v. Schneiderman

Issues

Does New York’s no-surcharge law (N.Y. Gen. Bus. Law § 518), which requires merchants to label price differences as a cash “discount” rather than a credit-card “surcharge,” unconstitutionally restrict speech?

The Court must consider whether New York’s surcharge ban that requires merchants to label price differences as a cash discount rather than a credit-card surcharge unconstitutionally restricts speech. Petitioners Expressions Hair Design et al. argue that criminalizing truthful speech about credit-card costs violates the First Amendment because it prevents the free flow of accurate ideas amongst the public. Eric T. Schneiderman, in his official capacity as Attorney General of the State of New York, on the other hand, asserts that the law regulates conduct and not speech; thus, the price controls fall outside of the ambit of the First Amendment entirely. The outcome of this case will impact how a state can restrict the actions and language of merchants with respect to different forms of payments by consumers. 

Questions as Framed for the Court by the Parties

Whether New York’s regulation of the conditions under which sellers differentiate prices charged to consumers paying by credit card and consumers paying by other means, N.Y. Gen. Bus. Law § 518, is subject to scrutiny under, and consistent with, the First Amendment.

Whenever a consumer uses a credit card to make a purchase, the merchant is charged a swipe fee. Expressions Hair Design v. Schneiderman, 808 F.3d 118, 122 (2d Cir. 2015). Merchants typically pass on these charges to consumers through higher prices regardless of whether they pay by credit card or not.

Written by

Edited by

Additional Resources

Submit for publication
0

Federal Election Commission v. Ted Cruz for Senate

Issues

Does Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which imposes a $250,000 cap on the amount of post-election funds a campaign can use to reimburse a candidate’s personal loans, impermissibly burden a candidate’s First Amendment right to free speech; and does a party seeking to invalidate a regulation implemented pursuant to that statutory provision have standing to challenge the statute?

This case asks the Supreme Court to decide whether Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which bars a campaign from disbursing more than $250,000 in post-election contributions to refund a candidate’s personal loans, violates the First Amendment. The Federal Election Commission (“the FEC”) contends that Senator Cruz’s current inability to obtain full reimbursement for his loan was not caused by Section 304, and that Cruz therefore lacks standing to challenge Section 304. Senator Ted Cruz and Ted Cruz for Senate (collectively, “Ted Cruz”) counter that Section 304 directly injures them, and that the statute should be held unconstitutional under the First Amendment for unjustifiably deterring candidates from exercising their free speech right to contribute to their own campaigns. The outcome of this case has implications for litigants who must establish standing to challenge allegedly unconstitutional government action in the courts, and the constitutionality of limits on the use of post-election funds for loan-repayment.

Questions as Framed for the Court by the Parties

Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.

In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions through the Federal Election Campaign Act of 1971 (“FECA”). Ted Cruz for Senate v. Fed.

Additional Resources

Submit for publication
0

Federal Election Commission v. Wisconsin Right to Life; McCain v. Wisconsin Right to Life

Issues

Is the Electioneering Communication prohibition of the Bipartisan Campaign Reform Act unconstitutional as applied to grassroots lobbying ads, such as those that Wisconsin Right to Life wanted to run in 2004?

 

In July 2004, Wisconsin Right to Life aired a series of advertisements encouraging Wisconsin voters to urge their U.S. Senators, Russell Feingold and Herb Kohl, to oppose efforts to filibuster President Bush’s federal judicial nominees. The ads came into conflict with the limitations of the Bipartisan Campaign Reform Act because they coincided with Senator Feingold’s November 2004 re-election bid. The provision at issue prohibits corporations and unions from running ads targeted at a specific candidate within 30 days of a primary or 60 days of a general election. WRTL argues that the Act should not be applied to its ads because they were grassroots “issue ads,” and not “electioneering ads” covered by this Act. The Federal Election Commission contends that the WRTL ads were intended to sway voters in the federal election, and thus the Bipartisan Campaign Reform Act should be applied. The Supreme Court’s decision in this case will have an important effect on the delicate balance between the free speech rights guaranteed by the First Amendment and the interests of campaign finance reformers seeking to limit the electoral involvement of special interests, such as corporations and unions, which may improperly influence the electoral process.

Questions as Framed for the Court by the Parties

F.E.C. v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.

McCain v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, is unconstitutional as applied to the three advertisements that appellee Wisconsin Right to Life, Inc. sought to broadcast in 2004.

In 2004, many political experts anticipated that members of the U.S. Senate would try to further delay a Senate vote on President George Bush’s judicial nominees with continued filibustering.

Additional Resources

Submit for publication
0
Subscribe to First Amendment