First Amendment

Ramirez v. Collier

Issues

Does Texas’s prohibition against a spiritual advisor 1) touching a capital prisoner or 2) singing or saying prayers during an execution violate either the free exercise clause or the Religious Land Use and Institutionalized Persons Act? 

This case asks the Supreme Court to decide whether prisoners have the right to have their spiritual advisors conduct religious actions within execution chambers. Although the Supreme Court has established that there is a right to have a spiritual advisor present, this case asks the court to further define the extent to which spiritual advisors can facilitate religious practice while present. Petitioner John Henry Ramirez argues that not allowing touch or audible prayer by a spiritual advisor severely burdens his religious liberty. Respondents, including Texas Department of Criminal Justice Executive Director Bryan Collier, counter that forbidding these actions is the least restrictive option the prison has for permitting an inmate’s religious exercise while maintaining safety and security during executions. The decision in this case will affect prisons’ execution procedures and religious rights of prisoners.

Questions as Framed for the Court by the Parties

(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

In 2008, a Texas state court convicted petitioner John Henry Ramirez (“Ramirez”) of capital murder for stabbing a man 29 times outside a convenience store and robbing him of $1.25. Ramirez v. Collier, at 1. Although Ramirez has always believed in God, while in prison he became a devout Christian.

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Reed v. Town of Gilbert

Issues

Does a town’s sign ordinance that assigns different size and posting requirements based on the type of noncommercial speech displayed violate the First Amendment?  

The Supreme Court granted certiorari to address a circuit split regarding the constitutionality of sign ordinances that treat signs differently depending on the type of noncommercial speech displayed. The Town of Gilbert’s Sign Code stipulated size requirements and posting times that differed depending on if the signs were classified as political, ideological, or “temporary directional signs” for religious or non-profit events. The latter category’s size and timing requirements were more restrictive than those for political or ideological signs. Good News Community Church and its pastor, Clyde Reed, argue that Gilbert’s sign code violates the First Amendment. Conversely, Gilbert contends that the Sign Code does not violate the Constitution since it does not favor certain viewpoints or ideas over others and serves an important government interest in regulating safety and aesthetics. The Court’s ruling could have important consequences for free speech as well as for local governments’ ability to manage community safety and aesthetics.

Questions as Framed for the Court by the Parties

Does Gilbert’s mere assertion of a lack of discriminatory motive render its facially content-based sign code content-neutral and justify the code’s differential treatment of Petitioners’ religious signs?

Respondent Town of Gilbert’s (“Gilbert”) sign ordinance (“Sign Code”) requires that individuals obtain a permit to post signs within the city limits. See Reed v. Town of Gilbert, 707 F.3d 1057, 1061 (9th Cir.

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Reichle v. Howards

Issues

1. Whether one may make a First Amendment retaliatory arrest claim against one’s arresting officers if there was probable cause for one’s arrest.

2. Whether the court below erred by denying qualified and absolute immunity to Secret Service agents when the arrest they performed did not violate the Fourth Amendment.

 

Respondent Steven Howards criticized and touched Vice President Cheney while the Vice President was on a meet-and-greet at a local shopping center. Petitioners Virgil Reichle and Dan Doyle, two Secret Service Agents, confronted Howards, and subsequently arrested him for assault. However, the state prosecutor dropped the charges against Howards, who then brought a First Amendment retaliatory arrest claim against the Agents. The district court denied the Agents’ motion for summary judgment, ruling that the Agents could not benefit from qualified immunity under the circumstances. The Tenth Circuit affirmed. The Supreme Court must now resolve whether one may raise a First Amendment retaliatory arrest claim when there was probable cause for one’s arrest. A decision for Howards may deter law enforcement officers from making arrests for fear of retaliatory arrest claims, while a decision for the Agents may enable officers to more easily target and punish speech which they oppose.

Questions as Framed for the Court by the Parties

1. Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 U.S. 250 (2006).

2. Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.

In 2006, Respondent Steven Howards visited the Beaver Creek Mall in Beaver Creek, Colorado to bring his older son to a piano recital. See Howards v. McLaughlin, 634 F.3d 1131, 1135 (10th Cir.

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Riley v. California

Issues

Does the Fourth Amendment permit police officers to perform a warrantless search of an individual’s cell phone confiscated at the time of an arrest?

In August 2009, David Riley was pulled over in San Diego, California for having expired tags on his car and a suspended driver’s license. As per police department policy, the officer impounded Riley’s car and conducted a warrantless search of the car. The officer found two handguns that were later linked to a shooting that had taken place a few weeks prior. During the arrest, the officers confiscated and rummaged through the data on Riley’s smartphone without a warrant. Some of the data on the phone linked Riley to gang activity and the shooting and was entered into evidence at the trial, where Riley was convicted on three charges. Riley argues that allowing police officers to search through data on his cell phone without a warrant is an unacceptable intrusion on personal privacy. California argues that police officers need to be able to confiscate cell phones without first obtaining a warrant for safety reasons and to prevent destruction of evidence. The Supreme Court’s decision in this case will affect the balance between those two concerns and the scope of Fourth Amendment protection available to personal technology. 

Questions as Framed for the Court by the Parties

Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest.  

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Facts

On August 2, 2009 around 2:30 p.m., David Riley, an alleged member of the Lincoln Park gang, was parked in a San Diego neighborhood with his girlfriend and three other men. See People v. Riley, No. D059840, 2013 BL 34220, 2013 ILRC 1385 (Cal. App. 4th Dist. Feb. 08, 2013) at 1. When a member of a rival gang, Mr.

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Rucho v. Common Cause

Issues

Do voters targeted by partisan gerrymandering have standing to bring a constitutional claim; is such a claim justiciable, or is it barred by the political question doctrine; and, how would voters then prove a constitutional violation?

In this case, the Supreme Court will determine whether claims of partisan gerrymandering may be heard by the courts, and if so, upon what standards such claims should be evaluated. In 2016, North Carolina adopted a new congressional district map with the express purpose of protecting Republican congressional delegates. Federal district court judges from the Middle District of North Carolina invalidated the map after voters and related groups claimed that the new district map violated voters’ rights under the First Amendment, the Equal Protection Clause, and the Elections Clause. As part of this ruling, the lower court determined that there was an injury sufficient to give the voters standing while also holding that the issue of partisan gerrymandering is not barred from judicial review by the political question doctrine. The case was then appealed directly to the Supreme Court, which will seek to answer the procedural and substantive questions while wrestling with a large body of competing jurisprudence. The decision could potentially open the courts to additional challenges by voters in several states and have implications for the scope of lawful electoral redistricting.

Questions as Framed for the Court by the Parties

  1. Whether plaintiffs have standing to press their partisan gerrymandering claims.
  2. Whether plaintiffs’ partisan gerrymandering claims are justiciable.
  3. Whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.

North Carolina’s congressional redistricting takes place every ten years in a process overseen by both chambers of the state’s General Assembly. Common Cause v. Rucho, 279 F. Supp. 3d 587, 599 (M.D.N.C.

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Rumsfeld v. Forum for Academic and Institutional Rights

Issues

Did the Court of Appeals err in ruling that the Solomon Amendment's equal access condition on federal funding violates the First Amendment based on the fact that the Solomon Amendment burdens the right of educational institutions to engage in expressive association and forces law schools to propagate a message of discrimination against homosexuals with which they disagree?

 

Under the Solomon Amendment, law schools that receive federal funding are forced to provide the same access to career placement services to military recruiters that they provide to other employers. This requirement conflicts with most law schools' policies of non-discrimination that withhold career placement services from employers who exclude employees on the basis of race, gender, religion or sexual orientation. The Forum for Academic and Institutional Rights (“FAIR”) has challenged the Solomon Amendment on two grounds. First, they argue that the Amendment is an unconstitutional condition that infringes their freedom of speech. Second, FAIR argues that law schools are “expressive associations” whose right to free speech and dissemination of a chosen message is impaired by the forced accommodation of military recruiters on campus. The Court of Appeals, in ruling for FAIR, held that the Solomon Amendment unconstitutionally impairs expressive conduct and that the Government has not shown a compelling interest that justifies denying this freedom. The case is significant because it will determine whether, specifically, law schools are able to bar military recruiters from campus without losing federal funding, and, more broadly, whether certain associations may qualify for federal funding but remain constitutionally protected from disseminating a message with which they do not agree.

Questions as Framed for the Court by the Parties

The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.

Since 1990, the American Association of Law Schools (“AALS”) has required its members to withhold placement assistance or use of the schools' facilities from employers who discriminate on the basis of sexual orientation. AALS believes that the military violates this policy as a result of the military's “don't ask, don't tell” policy. See 10 U.S.C. § 654. As a result, some law schools refused to provide access to their facilities and assistance to military recruiters.

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Schwarzenegger v. Entertainment Merchants Association

Issues

Can a state ban the sale of violent video games to minors, and if so, must the state prove that violent video games directly cause physical and psychological harm to minors for the ban to be constitutional?

 

California enacted California Civil Code §§ 1746–1746.5, which imposed restrictions on the sale of violent video games to minors. The Entertainment Merchants Association and the Entertainment Software Association sought declaratory relief in federal court, alleging that the law was an impermissible restriction of speech in violation of the First Amendment. The district court and the Ninth Circuit ruled in favor of Entertainment Merchants. California appealed, asserting that the First Amendment does not protect the sale of violent video games to minors and that California need not show a direct causal link between violent video games and physical or psychological harm in minors before restricting such sales. The Supreme Court's decision will affect minors' constitutional rights, the power of states to control which materials children are exposed to, and the expression in media with violent content.

Questions as Framed for the Court by the Parties

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of violent video games to minors?

On October 7, 2005, Petitioner California Governor Arnold Schwarzenegger (“California”) signed into law California Civil Code §§ 1746–1746.5, which prohibits the sale of violent video games to minors. See Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir.

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Additional Resources

· Wex: First Amendment

· New York Times, Linda Greenhouse: The Court as Mr. Fix It? (Apr. 30, 2010)

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Shurtleff v. City of Boston

Issues

Whether the City of Boston violated the First Amendment by denying a private party’s application to fly a Christian flag on a flagpole in front of Boston City Hall when the City had approved all 284 previous flag-raising applications; whether the flagpole is a designated public forum for the purposes of the First Amendment; and whether designating a private party’s flag in a public forum government speech inappropriately expands the definition of government speech.

In this case, the Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties.

Questions as Framed for the Court by the Parties

(1) Whether the United States Court of Appeals for the First Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers;

(2) whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and

(3) whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.

The City of Boston (“Boston”) owns and operates three flagpoles in City Hall Plaza, all of which stand conspicuously in front of the seat of its municipal government. Shurtleff v. City of Boston, at 82. The first flagpole flies the United States and POW/MIA flags, the second flies the Commonwealth of Massachusetts flag, and the third typically flies Boston’s flag. Id.

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Snyder v. Phelps

Issues

Does an individual’s interest in suing to recover for the disruption of a family member’s funeral outweigh the disrupter’s First Amendment right to freedom of speech?

 

Respondents Fred W. Phelps, Shirley L. Phelps-Roper, and Rebekah A. Phelps-Davis (“the Phelpses”) protested at the military funeral of Petitioner Albert Snyder’s son, holding signs saying "God Hates the USA," "Thank God for 9/11," and other phrases. Snyder successfully sued the Phelpses for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and conspiracy, and the jury awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages. On appeal, the Fourth Circuit Court of Appeals overturned the jury verdict, holding that the Phelpses’ statements were protected under the First Amendment and thus could not be subject to a civil lawsuit. The Fourth Circuit reasoned that the statements should be protected because they are rhetorical hyperbole, as opposed to verifiable fact, and because the statements address matters of public concern. The Supreme Court’s decision in this case will implicate individuals’ free speech and privacy interests and the states’ interest in protecting their citizens through tort law.

Questions as Framed for the Court by the Parties

1. Does the Hustler Magazine, Inc. v. Falwell standard for state tort recovery apply when a private citizen is suing another private citizen concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s protection of freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

Petitioner Albert Snyder’s son, Marine Lance Corporal Matthew A. Snyder, was killed in action while deployed in Iraq. See Snyder v. Phelps, 580 F.3d 206, 211 (4th Cir. 2009). Respondents Fred W. Phelps, Sr., Shirley L. Phelps-Roper, and Rebekah A. Phelps-Davis (“the Phelpses”) are members of the Westboro Baptist Church, Inc. (“WBC”), which is also a party to the action.

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