First Amendment

Issues

The Nevada Commission on Ethics (“Commission”) censured Michael Carrigan, a city council member, for voting to issue a permit to a company employing his friend and campaign manager as a consultant. The Commission alleges that Carrigan violated a catch-all recusal provision requiring an official to disqualify himself when faced with a personal interest in a matter “substantially similar” to several enumerated interests. Carrigan argues that the provision is an impermissible burden on his First Amendment rights of expression and association and must be subject to strict scrutiny. The Commission contends that any infringement on the First Amendment is incidental, and therefore the United States Supreme Court should eschew strict scrutiny in favor of a lower standard of review. The Supreme Court of Nevada applied strict scrutiny and struck down the provision as unconstitutional. The United States Supreme Court’s decision could affect the level of scrutiny at which recusal provisions are reviewed nationwide and the freedom of states to establish independent legislator voting restrictions.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Issues

Margarita Lopez Torres, nine other judicial candidates, and voters sued the New York State Board of Elections in federal court, claiming that state election laws regulating judicial elections violated the First Amendment rights of party members and candidates. Torres claimed that the state-mandated system by which parties elect nominees makes it impossible, in practice, for candidates without party backing to gain access to the party nomination ballot. In particular, Torres argued that the system enables party leaders to exert control over the nomination process, creating an environment ripe for abuse of judicial independence. As an example of such abuses, Torres offered her experiences as a judicial candidate: despite enjoying popular support in civil court elections, she failed in multiple district elections to receive the nomination of her party after refusing to follow the demands of party leaders.

After reviewing evidence of the lack of competitive elections and the difficulty of gaining access to the nomination ballot without party support, the Eastern District of New York agreed that New York's election laws violated the First Amendment associational rights of voters and candidates. The district granted a preliminary injunction mandating primary elections for party voters to select candidates. The Second Circuit affirmed, ruling that the District Court had acted within its discretion. The New York State Board of Elections ("New York State Board") now appeals, arguing that political parties' First Amendment rights are infringed by the lower courts' holding. The New York State Board further argues that the district court's remedy violates the First Amendment rights of political parties to control their intra-party nomination process. At issue in this case are the competing First Amendment rights of party members, candidates, and political parties during a party's candidate selection process. The Supreme Court decision will better define the scope of these rights in a unique situation: an intra-party nomination convention that is mandated and closely regulated by state law.

Questions as Framed for the Court by the Parties

Additional Resources

Issues

The Supreme Court will determine whether probable cause can function as a defense for police officers facing a retaliatory arrest claim under 42 U.S.C. § 1983. Petitioners Luis Nieves and Bryce Weight (“Nieves”) contend that Supreme Court precedent requires plaintiffs to plead and prove the absence of probable cause in order to bring a retaliatory arrest claim. Additionally, Nieves argues that a probable cause requirement conforms with common law authority and accords with the First Amendment’s purposes and values. Respondent Russell Bartlett (“Bartlett”) counters that Supreme Court precedent and the common law actually do not support a probable cause requirement for retaliatory arrest claims.  Further, Bartlett asserts that the text of 42 U.S.C. § 1983 itself cannot support a probable cause requirement. From a policy perspective, this case is important because it asks the Court to balance a plaintiff’s First Amendment right to free speech with the ability of police officers to make arrests without fear of a lawsuit.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Issues

This case asks the Supreme Court to determine if a state can exclude religious schools from participating in its charter school program. The state of Oklahoma operates a charter school program to which St. Isidore, a Catholic institution, applied. The Oklahoma Virtual Charter School Board (the “Board”) granted St. Isidore’s application. The Oklahoma Supreme Court ordered the state to revoke St. Isidore’s charter school contract because it is a religious school, and charter schools are public entities that must be nonsectarian under Oklahoma law. The Board contends that Oklahoma charter schools are not public entities engaged in state action, and thus the prohibition on sectarian charter schools violates its Free Exercise rights. Drummond contends that charter schools are public entities engaging in state action that a state can require to be nonsectarian without violating the Free Exercise Clause. This case touches upon important questions regarding the increasing prevalence of charter schools and their impact on equitable student achievement outcomes, as well as on protecting parental choice. 

Questions as Framed for the Court by the Parties

Additional Resources

Issues

This case asks the Supreme Court to determine whether two teachers at two Catholic schools are “ministers” and thus fall within the First Amendment’s “ministerial exception.” This exception immunizes religious employers from generally applicable employment-discrimination laws, so long as the employees at issue are considered “ministers.” Petitioners, Our Lady of Guadalupe School and St. James Catholic School (“the Schools”), contend that that under Hosanna-Tabor, an employee’s “job function” is the primary factor that courts should consider when determining whether an employee of a religious organization qualifies as a “minister.” The Schools contend that both teachers at issue here engaged in important religious functions by teaching religion to students. Respondents and teachers, Agnes Morrissey-Berru and Kristen Biel (“Morrissey-Berru”), counter that Hosanna-Tabor established a four-factor test, looking not only to the employee’s religious functions, but also to her title, training, and actions. According to Morrissey-Berru, neither teacher held a ministerial title, received religious training, nor held themselves out to be ministers. Even looking to their religious functions, she contends that teaching religion among other secular subjects is insufficient to make a teacher a minister. The outcome of this case will have implications for religious organizations’ employment practices and the civil-rights protections of their employees.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Issues

This case asks the Supreme Court to determine if public officials engaged in state action by blocking individuals from their social media accounts that were established without official governmental authority but were used for job-related communication with the public. Petitioners Michelle O’Connor-Ratcliff and T.J. Zane argue that their social media pages are not public fora, and their act of blocking individuals from their social media accounts is not a state action because they used personal discretion when exercising control over their accounts and did not base their act on state obligation or authority. Respondents Christopher and Kimberly Garnier counter that the petitioners engaged in state action because even if the government did not explicitly authorize such actions, public officials’ actions related to their roles are equivalent to state actions. Given the widespread use of social media among elected officials, the outcome of this case has significant implications for communication between officials and the public on social media platforms. Furthermore, the Supreme Court will strive to establish a workable standard to determine when the public officials’ non-governmental social media activities can constitute state action, resolving conflicts among circuit courts’ differing standards.

Questions as Framed for the Court by the Parties

Additional Resources

Issues

In 2002, Lester Gerard Packingham pled guilty to taking indecent liberties with a child and was registered as a sex offender in the state of North Carolina. After posting on Facebook in 2010, Packingham was arrested and convicted under a North Carolina statute that prohibits all registered sex offenders from accessing any social networking website. Packingham appealed, arguing that the law violated the First Amendment. The Supreme Court of North Carolina affirmed Packingham’s conviction, finding that the law was an acceptable content-neutral speech restriction. Packingham argues that the law is substantially overbroad and is therefore unconstitutional both on its face and as applied to this case under either strict or intermediate scrutiny. North Carolina maintains that the law is narrowly tailored to achieve the government’s interest in protecting children from sexual abuse and therefore satisfies intermediate scrutiny. The Supreme Court’s decision in this case will impact the balance between state governments’ interest in public safety and convicted persons’ First Amendment rights.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources

Issues

This case asks the Court to analyze 18 U.S.C. § 1346, the honest-services fraud statute, and determine if an individual with informal power but no official governmental position can violate the statute. Joseph Percoco and Steven Aiello argue that private individuals lacking formal governmental power cannot commit honest-services fraud because they do not owe the public a duty of honest services. Percoco and Aiello further argue that including private individuals within § 1346 would render the statue unconstitutionally vague, violate the First Amendment, and entrench upon state sovereignty. The United States contends that private individuals can commit honest-services fraud when they have been selected for public office and when they are de facto officeholders in all but name. The United States also argues that § 1346 clearly defines improper behavior and does not limit First Amendment activity. This case touches on important questions regarding lobbying, free speech, and the interaction of state and federal bribery laws.

Questions as Framed for the Court by the Parties

Additional Resources

Issues

Summum, a religious organization, seeks to place a monument containing the Seven Aphorisms of Summum among other historical and cultural artifacts and monuments displayed in Pioneer Park. It brought a civil suit in the Federal District Court of Utah, alleging that the city of Pleasant Grove had abridged its First Amendment freedom of speech rights in denying the request to display the Seven Aphorisms monument, while approving other similar expressive monuments. The District Court denied Summum’s preliminary injunction motion, but the Tenth Circuit reversed the ruling and granted the injunction, finding that any privately-donated monument retained its character as private speech. The court held that since a park is a traditional public forum, the city cannot engage in content-based restrictions of private speech without a compelling state interest and a narrowly-tailored policy to that end. The city contends that there is no First Amendment violation because the display constitutes government speech—the city owns, controls, and ultimately decides to display the monument. It fears that the Tenth Circuit ruling would chill free speech for both private parties and the government, for the ruling would require the city to display any monument at the request of a private party or, alternatively, ban all displays in public parks. But Summum argues that categorizing such displays as government speech, where the decision to display a monument is subject to the city’s selection process, would allow the city to engage in viewpoint discrimination.

Questions as Framed for the Court by the Parties

Written by

Edited by

Additional Resources