First Amendment

Lee v. Tam

Issues

Is the disparagement clause of the Lanham Act, which allows the USPTO to refuse federal registration to marks which “may be disparaging” to persons of a certain race, ethnicity, gender, religion, or sexual orientation, invalid under the Free Speech Clause of the First Amendment

This case will address the constitutionality of the disparagement clause, or §2(a) of the Lanham Act. Simon Tam, spokesperson for THE SLANTS, an Asian-American dance-rock band, argues that this provision, which allows the USPTO to deny federal registration to marks that “may be disparaging,” poses impermissible censorship of political speech in instances where registrants seek to reappropriate a previously disparaging term. Michelle K. Lee, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, maintains that this provision merely denies federal registration for a government program but does not restrict an individual’s political or commercial speech. The resolution of this case will determine whether the owners of potentially disparaging marks, such as the Washington Redskins, have the right to register their marks, bring suit for infringement, and use government resources for policing new trademark applicants and potential infringement. 

Questions as Framed for the Court by the Parties

Section 2(a) of the Lanham Act, 15 U.S.C.  1052(a), provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of * * * matter which may disparage * * * persons, living or dead, institutions, beliefs, or nation-al symbols, or bring them into contempt, or disrepute.”

The question presented is as follows:

Whether the disparagement provision in 15 U.S.C.  1052(a) is facially invalid under the Free Speech Clause of the First Amendment.

On November 14, 2011, Simon Tam filed an application to register the name of an Asian-American dance-rock band, THE SLANTS, with the United States Patent and Trademark Office (“USPTO”). In Re Simon Shiao Tam, 808 F.3d 1321, at 10–11 (2015). Tam and his fellow band members have used this mark in commerce since 2006, when they first formed the band.

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libel

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation; exposes a person to public hatred, contempt or ridicule; or injures a person in their business or profession.

Lindke v. Freed

Issues

Can a public official’s social media activity constitute state action regardless of whether the official used the account to perform a governmental duty or exercise an authority of their office?

This case asks the Supreme Court to determine when, if ever, a politician may block someone from engaging with their social media posts. In this case, James Freed, a city manager, blocked Kevin Lindke from his personal Facebook page and removed Lindke’s comments criticizing Freed’s response to the COVID-19 pandemic. Lindke contends that, because Freed posted about his official duties on his private page, Freed acted as a state official on it and therefore infringed Lindke’s First Amendment rights by blocking him. Freed disagrees, arguing that because Freed blocked Lindke on his personal account rather than his official account, he was not acting as a state official. The Court’s decision could define the scope of politicians’ responsibilities as the use of personal social media for political activity becomes more popular.

Questions as Framed for the Court by the Parties

Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

In 2014, James Freed became Port Huron, Michigan’s City Manager. Lindke v. Freed at 1. The city manager of Port Huron is responsible for issuing press releases about the city's policies and seeking input on them from citizens.

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Lozman v. City of Riviera Beach, Florida

Issues

Does the existence of probable cause prevent a plaintiff from pursuing a retaliatory arrest claim against the government?

The Supreme Court will decide whether an individual can pursue a retaliatory arrest claim against the government for violating his First Amendment free speech rights, even though his arrest was supported by probable cause. Petitioner Fane Lozman argues that if a plaintiff who asserts a retaliatory arrest claim can establish a causal connection between his protected speech and the subsequent government action, the burden should then shift to the government to prove that it would have made the same decision even without the alleged animus. Lozman admits that the existence of probable cause may be sufficient for the government to meet its burden in some cases, but argues that a finding probable cause should not automatically defeat a retaliatory arrest claim. In contrast, Respondent City of Riviera Beach argues that probable cause should operate as an absolute bar to a retaliatory arrest claim. This case will clarify the government’s ability to arrest people suspected of committing a crime while engaged in protected speech and also the liability of government officials who allegedly encourage selectively arresting political dissidents for committing minor offenses.

Questions as Framed for the Court by the Parties

When a plaintiff claims that the government retaliated against his First Amendment-protected expression by arresting him, does the existence of probable cause operate as an absolute bar to his claim?

In March 2006, Fane Lozman moved his floating home to the Riviera Beach Marina. Lozman v. City of Riviera Beach, 681 F. App'x 746, 748 (11th Cir. 2017). Shortly after moving there, Lozman learned that the City of Riviera Beach (“Riviera Beach”) planned to redevelop the Marina.

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Mahanoy Area School District v. B.L.

Issues

Can a school regulate student speech that may be disruptive to the school environment if that speech occurs off campus?

This case asks the Court to decide whether school officials may regulate and punish students for disruptive speech that occurs off the school campus. Petitioner Mahanoy Area School District argues that schools can regulate speech that is directed at school operations and which causes off-campus harm under Tinker v. Des Moines Independent Community School District, even when that speech is made off campus. Respondent B.L. counters that schools only have the authority to regulate students’ speech when that speech is made on the school campus or under the supervision or sponsorship of the school, not merely because the speech’s topic has some relationship to school functions. This case has implications for the extent of students’ free-speech rights and schools’ ability to prevent off-campus bullying.

Questions as Framed for the Court by the Parties

Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Respondent B.L., a student at Mahanoy Area High School (“MAHS”), tried out for the cheerleading team during her freshman year of high school and made the junior varsity (“JV”) squad. B.L. v. Mahanoy Area School District at 1. She tried out again as a sophomore and was again assigned to JV. Id. B.L.

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Manhattan Community Access Corp. v. Halleck

Issues

Should private entities operating public access television channels be considered state actors per se for constitutional purposes subject to First Amendment limitations on governmental action, even when the state does not control the private entity’s board or operations?

The Supreme Court will determine whether the Second Circuit erred in creating a per se rule that private operators of public access channels are state actors subject to constitutional liability and holding that this is true even where the state does not control the private operator’s board or operations. Petitioners, Manhattan Community Access Corporation et al., also known as Manhattan Neighborhood Network (“MNN”), argue that the Second Circuit violated Supreme Court precedent by determining the constitutional forum question before the state actor issue. MNN also asserts that the public access channels at issue, properly examined under that precedent, would not warrant constitutional protections. Respondents, DeeDee Halleck and Jesus Papoleto Melendez (“Halleck and Melendez”) counter that New York City made the legislative decision to remove MNN’s editorial discretion, thereby designating the public access channels as a public forum warranting constitutional protection. Halleck and Melendez also contend that administering a public forum constitutes a public function, meaning that constitutional protections apply. From a policy perspective, this case is important because it may have implications for the editorial discretion of other private entities—such as YouTube and Twitter—that host expressive spaces open to the public, including government officials.

Questions as Framed for the Court by the Parties

(1) Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.

New York City (“NYC”) awarded Time Warner Entertainment Company, L.P. (“Time Warner”) cable franchises for Manhattan and required Time Warner to provide four public access channels for public use, in accordance with New York State regulations. Halleck v. Manhattan Community Access Corporation at 5.

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Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission

Issues

Does compelling a business owner to engage in artistic expression which goes against his deeply-held religious beliefs in accordance with Colorado’s public accommodation anti-discrimination law violate either the Free Speech Clause or the Free Exercise Clause of the First Amendment?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. Colorado’s Anti-Discrimination Act (“CADA”) prohibits commercial businesses from denying service to patrons based on protected characteristics, including sexual orientation. Masterpiece Cakeshop and its owner Jack Phillips contend that CADA violates their First Amendment rights to free artistic expression and religious belief. The Colorado Civil Rights Commission (“CCRC”) and Charlie Craig and David Mullins counter that Masterpiece Cakeshop’s First Amendment rights are not at issue, as CADA applies in all cases of commercial discrimination, and that merely invoking such rights should not exempt Petitioner from complying with the anti-discrimination law. The outcome of this case has heavy implications for LGBTQ rights, creative expression, and religious freedom.

Questions as Framed for the Court by the Parties

Whether applying Colorado’s public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.

In July 2012, Respondents Charlie Craig and David Mullins visited Petitioner Masterpiece Cakeshop, a Colorado bakery, to request that its owner, Petitioner Jack Phillips, create a cake for their same-sex wedding. Craig v. Masterpiece Cakeshop, Inc. at 1. Phillips declined their request, explaining that he would not make a custom wedding cake for them because of his Christian beliefs, but that he would be happy to sell them any other baked goods. Id.

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Acknowledgments

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

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McCullen v. Coakley

Issues

Are state-mandated buffer zones around reproductive health care facilities that prohibit pro-life activists from approaching patients constitutional?

To dissuade women from having abortions, pro-life activists in Massachusetts sometimes attempt to communicate with women as they enter and exit reproductive healthcare facilities. To promote public safety, the Massachusetts legislature passed a law that imposes a thirty-five foot buffer zone around the access points to those clinics, and prohibits people from remaining in the buffer zone with a few exceptions. McCullen represents a group of Massachusetts residents who engage in pro-life counseling and who claim that the buffer zones put them at a disadvantage in their mission. McCullen also argues that the statute violates the First Amendment because it prevents patients who are contemplating having an abortion from obtaining information about alternatives. Coakley, the Massachusetts Attorney General, counters that the purpose of the statute is to prevent violence and facilitate access in and out of those healthcare facilities. The Supreme Court will have the opportunity to consider whether these buffer zones surrounding reproductive healthcare facilities are constitutional. The Court’s ruling will implicate the rights of pro-life and pro-choice activists in promoting their views near these facilities, as well as the rights of individuals seeking services there.

Questions as Framed for the Court by the Parties

Massachusetts has made it a crime for speakers to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of “a reproductive health care facility.” The law applies only at abortion clinics. The law also exempts, among others, clinic “employees or agents . . . acting within the scope of their employment.” In effect, the law restricts the speech of only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view. 

Petitioners are individuals who believe that women often have abortions because they feel pressured, alone, unloved, and out of options. Petitioners try to position themselves near clinics in an attempt to reach this unique audience, at a unique moment, to offer support, information, and practical assistance. They are peaceful, non-confrontational, and do not obstruct access. Yet, the State prohibits them from entering or standing on large portions of the public sidewalk to proffer leaflets or seek to begin conversations with willing listeners. 

The questions presented are: 

  1. Whether the First Circuit erred in upholding Massachusetts' selective exclusion law under the First and Fourteenth Amendments, on its face and as applied to petitioners. 
  2. If Hill v. Colorado, 530 U.S. 703 (2000), permits enforcement of this law, whether Hill should be limited or overruled.

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Facts

For over three decades, pro-life and pro-choice advocates have battled each other over the best forums for expressing their ideas. See McCullen v. Coakley, 571 F.3d 171, 172 (1st. Cir 2009).

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McCutcheon v. Federal Election Commission

Issues

Do aggregate limits on individual political contributions substantially burden the First Amendment right to freedom of association?

The Federal Election Commission (“FEC”) regulates contributions to political campaigns through base limits, the amount one person can give to a single candidate, and aggregate limits, the total amount an individual can give to any number of candidates or political committees. Shaun McCutcheon, a contributor to various candidates and organizations, sued the FEC in district court alleging that aggregate limits infringe his First Amendment rights to freedom of expression and association. He argues that aggregate limits are no longer necessary to satisfy the legitimate government purpose of preventing circumvention of base limits. He alleges that aggregate limits are overbroad and that the only purpose they serve is to prevent affluent donors from associating themselves with candidates. The FEC argues that aggregate limits prevent donors from circumventing base limits, reduce the appearance of corruption, and prevent any given donor from exercising impermissible influence over a politician. In September 2012, the district court upheld the aggregate limits, finding the limits constitutionally permissible. The Supreme Court will determine the permissible constitutional balance between the exercise of First Amendment rights through political contributions and the government’s interest in regulating campaign finance law. This implicates the boundaries of the First Amendment, and raises questions about campaign finance, the role of individual donors in politics, and the freedom of association.

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Questions as Framed for the Court by the Parties

Federal law imposes two types of limits on individual political contributions. Base limits restrict the amount an individual may contribute to a candidate committee ($2,500 per election), a national-party committee ($30,800 per calendar year), a state, local, and district party committee ($10,000 per calendar year (combined limit)), and a political-action committee ("PAC") ($5,000 per calendar year). 2 U.S.C. 441a(a)(1) (current limits provided). Biennial limits restrict the aggregate amount an individual may contribute biennially as follows: $46,200 to candidate committees; $70,800 to all other committees, of which no more than $46,200 may go to non-national-party committees (e.g., state parties and PACs). 2 U.S.C. 441a(a)(3) (current limits provided) (see Appendix at 20a (text of statute)). Appellants present five questions:

  1. Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national-party committees.
  2. Whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest.
  3. Whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially.
  4. Whether the biennial limit on contributions to candidate committees, 2 U.S. C. 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.
  5. Whether the biennial limit on contributions to candidate committees, 2 U.S.C. 441a(a)(3)(A), is unconstitutionally too low.

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Facts

Congress enacted the Federal Election Campaign Act (“FECA”) of 1971 to increase accountability and fairness in political campaigns. See McCutcheon v. FEC, 893 F.Supp 2d 133, 134–35 (D.D.C.

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McDonnell v United States

Issues

What are the limits of a government official’s conduct being considered an “official action,” and what implications do these limits have on jury instruction and the constitutionality of the Hobbs Act and the honest-services fraud statute?

 

In this case, the Supreme Court will decide whether an “official action” is limited to exercise of actual government power. In light of this determination, the court will then decide whether the honest-services statute and Hobbs Act sufficiently define official actions to comply with the Constitution. Robert McDonnell argues that official actions should be limited to the actual exercise of government power and that his conduct as governor was never an exercise of actual government power. Thus, McDonnell argues that his conviction should be overturned on the merits, but he also argues that the trial court’s jury instructions were erroneous based on a flawed definition of “official action” given to the jury. In addition, McDonnell argues that the honest-services statute and Hobbs Act are unconstitutionally vague. The United States argues that McDonnell construes the definition of official action too  narrowly,  and that a proper interpretation encompasses McDonnell's conduct in this case.  United States  rejects McDonnell’s jury instruction arguments based by noting that these instructions included a precise definition of “official action” from the statute, with additional information to clarify the definition. Finally, the United States rejects McDonnell’s constitutional challenges by citing a recent and similar Supreme Court challenge to these statutes that failed. 

Questions as Framed for the Court by the Parties

Is “official action” limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and must the jury be so instructed; or, if not so limited, are the Hobbs Act and honest-services fraud statute unconstitutional?

Petitioner Robert McDonnell was elected the governor of Virginia in 2009. United States v. McDonnell, 792 F.3d 478, 486 (4th Cir.

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Additional Resources

•       Adam Liptak, Justices to Hear Appeal by Bob McDonnell, Ex-Governor of Virginia, The New York Times (Jan. 15, 2016).

•       Jonathan Stahl, Supreme Court to hear Virginia governor corruption case, Constitution Daily (Feb. 2, 2016)

•       Greg Stohr, U.S. Supreme Court Takes On Public Corruption With McDonnell Case, Tribune News Service (Jan. 18, 2016).

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