First Amendment

Heffernan v. City of Paterson

Issues

To raise a First Amendment retaliation claim, must public employees show they were fired for actually engaging in constitutionally protected activities?

 

In Paterson, New Jersey’s 2006 mayoral election, Mayor Jose Torres faced former police chief Lawrence Spagnola. See Heffernan v. City of Paterson, 777 F.3d 147, 149–50 (3d Cir. 2015). Although he was friends with Spagnola and supported him privately, Paterson police detective Jeffrey Heffernan did not campaign for Spagnola, vote in the election, or consider himself politically active. But the day after picking up a Spagnola campaign yard sign at his mother’s request, Heffernan was demoted for his alleged political activities. See id. The Supreme Court will decide if Heffernan, to raise a First Amendment retaliation claim, must show that he actually engaged in constitutionally protected activity, or merely demonstrate that the City of Paterson fired him based on its belief that he engaged in protected activity. Heffernan argues that the First Amendment protects government employees from adverse action that is based upon political expression or association, regardless of the true nature of employees’ activities. See Brief for Petitioner, Jeffrey Heffernan at at 14. But Paterson maintains that the First Amendment protects only the literal exercise of association and speech. See Brief for Respondent, City of Paterson et al. at 8–12. The Court’s decision will impact how public employees engage in political activity, and the amount of litigation surrounding retaliation claims. 

Questions as Framed for the Court by the Parties

Does the First Amendment bar the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?

After twenty years in Paterson, New Jersey's police department, Jeffrey Heffernan was named a detective in 2005. See Heffernan v. City of Paterson, 777 F.3d 147, 149 (3d Cir.

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Hein v. Freedom from Religion Foundation

Issues

Do taxpayers have the ability to challenge the actions of the Executive Branch based on the Establishment Clause of the First Amendment, which prohibits the Legislative Branch from making laws violating the freedom of religion?

 

In 2001, President Bush announced the Faith Based and Community Initiatives plan, which uses funds appropriated by Congress to establish a series of conferences designed to coordinate and support both religious and secular community organizations. The Freedom from Religion Foundation, represented by taxpayer plaintiffs, challenged this program on the basis that it violated the Establishment Clause of the First Amendment, but the suit was dismissed for lack of standing. The Seventh Circuit Court of Appeals reversed the district court, holding that various Supreme Court precedents establish that the Foundation did have standing. The government has appealed the case to the Supreme Court, arguing that the Foundation’s inability to identify a particular Congressional appropriation removes the programs from the Establishment Clause prohibition on Congressional action supporting religion.

Questions as Framed for the Court by the Parties

Whether taxpayers have  standing  under Article III of the Constitution to challenge on Establishment Clause grounds the actions of the Executive Branch pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government.

In 2004, the Freedom from Religion Foundation (“the Foundation”), represented by three taxpayer plaintiffs, filed suit in Federal District Court, challenging part of President Bush’s Faith Based and Community Initiatives (“FBCI”) plan. See Freedom from Religion, Inc. v. Chao, 433 F.3d 989, 993 (7th Cir. 2006).

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Holt v. Hobbs

Issues

Does a prison’s grooming policy, which prohibits all beards except for quarter-inch beards for certain medical reasons, violate the Religious Land Use and Institutionalized Persons Act by prohibiting an inmate from growing a half-inch beard in accordance with his religious beliefs?

In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) with the intent to provide protection for the free exercise of religion in various contexts, including prisons and jails. In this case, the Supreme Court will consider whether a prison grooming policy prohibiting a half-inch beard grown in accordance with a prisoner’s religious beliefs, violates RLUIPA. Additionally, the Court will have the opportunity to determine the level of deference courts should give prison officials when considering whether a prison policy that substantially burdens inmates’ exercise of religion furthers a compelling governmental interest and is the least restrictive means available. The resolution of this case may impact the balance between the rights of prisoners to practice their religion freely while incarcerated and the government’s interest in prison safety. 

Questions as Framed for the Court by the Parties

  1. Whether the Arkansas Department of Corrections’ no beard grooming policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA).
  2. Whether a ½ inch beard would satisfy the security goals sought by the policy.
  3. Whether the no beard grooming policy violates Petitioner’s First Amendment right to practice Islam as he believes it is supposed to be practiced by the wearing of the beard.
  4. That the United States Court of Appeals for the Eighth Circuit has decided that the no beard grooming policy does not violate the RLUIPA, but this Court should decide the matter since it has not done so and should rule whether grooming policies of any Department of Correction that do not allow for a religious exception exemption are constitutional.
  5. That the United States Court of Appeals for the Eighth Circuit’s decision in this case conflicts with other circuit’s rulings on the matter.
  6. That the ADC grooming policy of no beards is not the least restrictive means of achieving the desired objective of staunching the flow of contraband and identifying prisoners in the event of an escape.

In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to provide protection for the free exercise of religion in several contexts, including incarceration. See 42 U.S.C.

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Iancu v. Brunetti

Issues

Does the Lanham Act’s prohibition on registration of scandalous or immoral trademarks violate free speech rights guaranteed by the First Amendment?

Erik Brunetti founded a clothing brand named “FUCT” and applied to register the name as a trademark. The registration was denied by the examining attorney at the United States Patent and Trademark Office for not complying with Section 2(a) of the Lanham Act, which prohibits registration of scandalous or immoral marks. On appeal, the United States Court of Appeals for the Federal Circuit concluded that the provision was an unconstitutional violation of the First Amendment of the Constitution. Brunetti asks the Court to affirm the lower court’s invalidation of the provision because it amounts to viewpoint discrimination warranting strict scrutiny review, which the provision then fails. Iancu asks the Court to reverse the lower court decision because the scandalous marks provision is viewpoint neutral and does not impose an unconstitutional burden on speech. Iancu argues that the Court should instead apply the rational basis review standard and recognize that the provision serves legitimate government interests in protecting the moral sensibilities of all audiences as well as the orderly flow of commerce. The Court’s decision may have a chilling effect on free speech in commercial contexts and make it difficult for owners of marks deemed scandalous or immoral to reap commercial benefits from their marks.

Questions as Framed for the Court by the Parties

Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

Respondent Erik Brunetti founded a clothing brand, “FUCT,” in 1990. In re: Erik Brunetti, 877 F.3d 1330 (Fed. Cir.

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Janus v. American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”)

Issues

Should Abood v. Detroit Board of Education be overruled, rendering public sector agency fee arrangements, which require non-union employees to pay a fee to the union, unconstitutional under the First Amendment?

This case will decide whether public-sector workers represented by a union can be required to pay agency fees. Janus argues that requiring public-sector workers to pay agency fees constitutes compelled speech and association, imposing undue restrictions on workers’ First Amendment rights. The American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”) argues that imposing agency fees on all workers allows unions to appropriately and fairly represent all workers’ interests, which unions are legally required to do. This issue affects every dues-paying, public sector worker. Accordingly, this case will impact the way unions organize and represent public-sector workers.

Questions as Framed for the Court by the Parties

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

In 2015, the governor of Illinois filed suit challenging provisions of the Illinois Public Labor Relations Act (“IPLRA”) on First Amendment grounds. Janus v. AFSCME, Council 31, 851 F.3d 746, 747 (7th Cir. 2017). By filing the lawsuit, the governor of Illinois sought to overrule Abood v.

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Acknowledgments

The authors would like to thank Cornell Law School Professor Angela Cornell for her insight into this case.

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Kennedy v. Bremerton School District

Issues

Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?  

This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.

Questions as Framed for the Court by the Parties

(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.

Acknowledgments

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

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Knox v. Service Employees International Union, Local 1000

Issues

Whether a union can use nonunion members’ state-mandated fees to finance political expenditures or ballot measures, despite providing limited information about such uses, and without offering nonmembers any opportunity to object.

 

California nonunion state employees sued their collective bargaining agent, alleging that the imposition of an additional agency fee assessment used to fund political actions without notice or an opportunity to object violated their First, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment in favor of the nonunion employees. On appeal, the Ninth Circuit reversed. The nonunion employees now appeal. The Supreme Court will determine what disclosures unions must provide when imposing additional agency fees on nonmembers, and the extent to which unions can use nonmembers’ wages to fund expenditures without first obtaining consent.

Questions as Framed for the Court by the Parties

1. In Teachers Local No. 1 v. Hudson, this Court held that "[b]asic considerations of fairness, as well as concern for the First-Amendment rights at stake, ... dictate that the potential objectors be given sufficient information to gauge the propriety of the union's [agency] fee" extracted from nonunion public employees. 475 U.S. 292, 306 (1986). May a State, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction?

2. In Lehnert v. Ferris Faculty Ass'n, this Court held that "the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation." 500 U.S. 507, 522 (1991) (opinion of Blackmun, J.); accord id. at 559 (opinion of Scalia, J.) (concurring as to "the challenged lobbying expenses"). May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?

California state employees are required to pay fees to Service Employers International Union, Local 1000 (the “Union”) for exclusive representation as their collective bargaining agent. See Knox v. California State Employees Ass’n, Local 1000, 628 F.3d 1115, 1117 (9th Cir. 2010).

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Lamone v. Benisek

Issues

Is partisan gerrymandering a form of unconstitutional First Amendment retaliation that is justiciable by the courts?

In this case, the Supreme Court will determine whether Maryland’s 2011 redistricting of the Sixth Congressional District constituted unlawful partisan gerrymandering in violation of the First Amendment, and whether the First Amendment retaliation framework used by the district court provided manageable standards to decide this case. Specifically, the Court will consider whether legislators redrew electoral maps in retaliation to citizens’ political affiliations and voting histories. Appellant Linda H. Lamone argues that although the redistricting process may be tainted by partisan bias, redistricting does not necessarily indicate an intent to punish citizens for their party affiliations and voting histories. Appellee O. John Benisek counters that the proper question is whether electoral maps were redrawn because of citizens’ political affiliations and voting histories, irrespective of malicious retribution. This case could have a meaningful impact on the scope of lawful electoral redistricting and whether the Court should consider legislators’ subjective intent when making this determination.

Questions as Framed for the Court by the Parties

(1) Whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

After the 2010 census, the State of Maryland engaged in the redistricting of its eight congressional districts and forty-seven legislative districts to equalize each district’s population. Benisek v.

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Lane v. Franks

Issues

  1. Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?
  2. Does qualified immunity preclude a claim for damages in this action?

Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.

Questions as Framed for the Court by the Parties

  1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
  2. Does qualified immunity preclude a claim for damages in such an action?

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Facts

Petitioner Edward Lane is the previous Director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”), and Respondent Steve Franks is the former president of CACC. See Lane v. Central Alabama Community College, 523 Fed. Appx. 709, 710 (11th Cir.

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League of United Latin American Citizens v. Perry, consolidated with Travis County, Texas v. Perry, Jackson v.

Issues

Does the Texas legislature’s 2003 congressional redistricting plan unconstitutionally discriminate on the basis of race, constitute unconstitutional partisan gerrymandering, and/or dilute the voting strength of minorities in violation of the Voting Rights Act; and can states redraw congressional maps twice in the same decade when a valid plan exists?

 

After a decades-long dominance of the Texas congressional delegation by Democratic representatives, the Republican Party won a majority of seats by virtue of new Congressional district lines as reflected by the state's population growth in the 2000 Census. However, the legislature failed to redistrict the state in time for the elections, which were then governed by a district court-drawn plan. After the elections, the new Republican majority engaged in a rare mid-term redistricting plan to replace the court's map. A number of individuals and organizations sued to prevent the redistricting on a variety of grounds. The Supreme Court will decide the constitutionality of the Texas redistricting plan under analyses of due process, equal protection political, racial gerrymandering, and the Voting Rights Act.

Questions as Framed for the Court by the Parties

League of United Latin American Citizens v. Perry (No. 05-204)

1. Whether the 2003 Texas Congressional Redistricting Plan (Plan 1374C), adopted and developed using outdated, inaccurate 2000 Census data and resulting in malapportioned districts, in violation of one person, one vote when measured against 2003 Census data, and when “the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage” and when such purpose is realized, is an unconstitutional political gerrymander.

2. Whether proof of racially polarized voting is overcome by evidence of partisan affiliation of minority voters in the analysis of the second prong of Gingles in a minority vote dilution claim.

Travis Co., Texas v. Perry (No. 05-254)

Does the Texas legislature’s 2003 replacement of a legally valid congressional districting plan with a statewide plan, enacted for “the singleminded purpose” of gaining partisan advantage, satisfy the stringent constitutional rule of equipopulous districts by relying on the 2000 decennial census and the fiction of inter-censal population accuracy?

Jackson v. Perry (No. 05-276)

1. Whether the Equal Protection Clause and the First Amendment prohibit States from redrawing lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage.
 
2. Whether Section 2 of the Voting Rights Act permits a State to destroy a district effectively controlled by African-American voters, merely because it is impossible to draw a district in which African-Americans constitute an absolute mathematical majority of the population.
 
3. Whether, under Bush v. Vera, 517 U.S. 952 (1996), a bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural “land bridge,” may escape invalidation as a racial gerrymander because drawing a compact majority-Latino district would have required the mapmakers to compromise their political goal of maximizing Republican seats elsewhere in the State.
 

GI Forum of Texas v. Perry (No. 05-439)

1. Whether political partisanship is sufficient justification, under section 2 and the Constitution, for dismantling a Latino-majority congressional district in order to elect the Anglo-preferred candidate.
 
2. Whether section 2 permits a state to eliminate a majority-minority district located in one area of the state and create another majority-minority district in a different area of the state.
 
3. Whether the District Court erred by requiring section 2 demonstrative districts to be more compact and to offer greater electoral opportunity to minority voters than the corresponding districts in the challenged redistricting plan.
 
4. Whether the number of majority-minority districts that can be created in the state functions as the upper limit of permissible political opportunity when assessing proportionality under Johnson v. DeGrandy.

 

The U.S. Constitution requires states to reapportion their respective congressional seats based on population changes reflected by the U.S. Census Bureau’s decennial census. See U.S. Const. art. I, § 2.

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