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Washington Update Washington Update First Amendment Lawyers Association Quebec City – July 17-20, 2019 Bob Corn-Revere Ronnie London The First Amendment in the Supreme Court October 2018 Term The 2018 Supreme Court Term 66 cases argued Unanimous (38%) 8-1 or 7-1 (6%) 7-2 or 6-2 (11%) 6-3 or 5-3 (18%) 5-4 (27%) 4-4 (1%) Is this your new swing vote? Now, it really is the Roberts Court First Amendment Track Record 52 speech and press cases since 2005 Roberts authored 15 opinions – more than twice as many as Justice Kennedy (7). 8 claims sustained; 7 denied. 7 cases upholding First Amendment rights since 2010. Decided Cases Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) Rucho v. Common Cause/Lamone v. Benesek, 2019 WL 2619470 (June 27, 2019) Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (June 17, 2019) Food Mktg. Inst. v. Argus Leader Media, 2019 WL 2570624 (June 24, 2019) Fourth Est. Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (Mar. 4, 2019) Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019) Nieves v. Bartlett, No. 17-1174 (May 28, 2019) Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983. Yes. Roberts, joined by Breyer, Alito, Kagan, Kavanaugh and Thomas (in part). Thomas, concurring and dissenting. Gorsuch, concurring in part, dissenting in part. Ginsburg, concurring in the judgment in part, dissenting in part. Sotomayor, dissenting. Arctic Man Arrest Arctic Man … “an event known for both extreme sports and extreme alcohol consumption.” Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) 6-3: The plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest. Absent such a showing, a retaliatory arrest claim fails. E.g., Vocal critic of police singled out for jaywalking arrest. Narrow exception: “The no-probable cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly- situated individuals are not engaged in the same sort of protected speech had not been.” Objective inquiry. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) Exception for discriminatory discretionary arrests “has no basis in either the common law or in our First Amendment precedents.” Justice Thomas, concurring in part, dissenting in part. “[N]o common law tort for retaliatory arrest in violation of the freedom of speech existed when § 1983 was enacted [in 1871].” . “This overbroad exception … is likely to encourage protracted litigation about which individuals are ‘similarly situated.’” Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) “If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties.” Justice Gorsuch, concurring in part, dissenting in part. Probable cause may relate to tort of false arrest but not address situation where police make a lawful arrest for an unconstitutional reason. First Amendment provides different protections than the Fourth Amendment. Compare to Equal Protection. Consider probable cause as part of causation analysis – weak or delayed showing strengthens case for retaliation. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) “Arrest authority … can be abused to disrupt the exercise of First Amendment speech and press rights. See, e.g., Lacey v. Maricopa Cty.” Justice Ginsburg, concurring in the judgment in part, dissenting in part. Mt. Healthy City Bd. of Educ. v. Doyle strikes the right balance: Plaintiff must show unconstitutional animus was a motivating factor for the arrest, then burden shifts to government to show arrest would have happened anyway. Dismissal was proper for one officer where there was no evidence of animus, but not for the other, where some evidence existed. Nieves v. Bartlett, 139 S. Ct. 1715 (May 28, 2019) “There is no basis in § 1983 or in the Constitution to withhold a remedy for an arrest that violated the First Amendment solely because the officer could point to probable cause that some offense, no matter how trivial or obviously pretextual, has occurred.” Justice Sotomayor, dissenting. Normal rules governing retaliation claims under Mt. Healthy should apply. “[P]robable cause to believe that someone was a serial killer would defeat any First Amendment retaliatory arrest claim – even if … there were evidence that the officers also detested the suspect’s political beliefs.” . Majority “arbitrarily fetishizes one type of motive evidence – treatment of comparators – at the expense of other modes of proof.” What about photos from the scene, or body cameras? Cited NPPA amicus brief. Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) 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. Yes. Kagan, joined by Ginsburg, Alito, Thomas, Gorsuch, Kavanaugh. Alito, concurring. Roberts, concurring in part, dissenting in part. Breyer, concurring in part, dissenting in part. Sotomayor, concurring in part, dissenting in part, joined by Breyer. Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) “[T]he ‘immoral or scandalous’ criterion in the Lanham Act … is viewpoint-based.” “The meanings of ‘immoral’ and ‘scandalous’ are not mysterious …. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them[.]” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) “[T]he government invokes our First Amendment overbreadth doctrine, and asks us to uphold the statute … because its unconstitutional applications are not ‘substantial’ relative to [its] plainly legitimate sweep. But … this Court has never applied that kind of analysis to a viewpoint-discriminatory law.” “Once we have found that a law ‘aims at the suppression of’ views,’ why would it matter that Congress could have captured some of the same speech through a viewpoint- neutral statute?” “Viewpoint discrimination is poison to a free society.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) But …. First Amendment trademark law can still be FUCT: “We say nothing at all about …, in the Government’s more concrete description, a statute limited to lewd, sexually explicit, and profane remarks.” “Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.” “The particular mark in question in this case could be denied registration under such a statute.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) “[I]t is equally possible to read [the] bar on the registration of ‘scandalous’ marks to address only obscenity, vulgarity, and profanity” to “save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction that is permissible in the context of a beneficial governmental initiative like the trademark registration system.” “The word ‘scandalous’ … is ambiguous” and “I … interpret the term to allow the PTO to restrict … the small group of lewd [ ] or ‘swear’ words that cause a visceral reaction, that are not commonly used around children.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) “I agree with the majority that the ‘immoral’ portion … is not susceptible of a narrowing construction that would eliminate its viewpoint bias.” “As Justice Sotomayor explains, however, the ‘scandalous’ portion … is susceptible to such a narrowing construction to … bar only marks that offend because of their mode of expression, marks that are obscene, vulgar or profane.” “The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar and profane modes of expression.” Iancu v. Brunetti, 2019 WL 2570622 (June 24, 2019) “I agree with Justice Sotomayor … “I would place less emphasis on trying to decide whether the statute … should be categorized as … ‘viewpoint discrimination,’ ‘content discrimi- nation,’ ‘commercial’ speech,’ ‘government speech’ or the like. I believe we would do better to treat this Court’s speech-related categories not as outcome- determinative rules, but as rules of thumb” and “would ask whether the regulation at issue works speech-related harm … out of proportion to is justifications.” Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019) Whether the Establishment Clause requires removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross. No. Alito, joined by Roberts, Kavanaugh, Breyer, and Kagan (in part). Kavanaugh, concurring Breyer, concurring, joined by Kagan Kagan, concurring in part. Thomas, concurring in the judgment. Gorsuch, concurring in the judgment, joined by Thomas. Ginsburg, dissenting, joined by Sotomayor. Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019) Plurality announces new test to replace Lemon v. Kurtzman (1971) where religious symbols are used for ceremonial or commemorative purposes: Longstanding monuments, symbols, or practices are presumed constitutional. Hard to identify original purpose for old monuments . Additional associations with symbols made over time . Message may change over time: familiarity supports preservation . Tearing down monuments would be viewed as hostile to religion But: This would not necessarily support new monuments. Justice Alito Am. Legion v. Am. Humanist Ass’n, 2019 WL 2527471 (June 20, 2019) “As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content.” Justices Ginsburg and Sotomayor dissent “An exclusively Christian symbol, the Latin cross is not emblematic of any other faith. The principal symbol of Christianity around the world should not loom over public thoroughfares, suggesting official recognition of that religion’s paramountcy.” Rucho v.
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