Tag: First Amendment

U.S. Corporate Transparency Act: CTA is Declared Unconstitutional in U.S. District Court Case

The Corporate Transparency Act has been declared unconstitutional. On March 1, 2024, U.S. District Court Judge Liles C. Burke issued a 53-page opinion[1] granting summary judgment for the National Small Business Association and held that the Corporate Transparency Act “exceeds the Constitution’s limits on the legislative branch and lacks a sufficient nexus to any enumerated power to be a necessary or proper means of achieving Congress’ policy goals.”

As a result, Judge Burke found the CTA to be unconstitutional because it exceeds the Constitution’s limits on Congress’ power, without even reaching a decision on whether it violates the First, Fourth, and Fifth Amendments. The Court then permanently enjoined the government from enforcing the CTA against the named plaintiffs and ordered a further hearing on the award of costs of litigation.

While it is likely that this litigation will continue to play out in the federal court system, the initial victory has gone to small business and importantly that means that compliance with this now unconstitutional regulatory regime can be set aside for the current time being.

[1] Nat’l Small Bus. United v. Yellen, No. 5:22-cv-01448-LCB (N.D. Ala. 2022)

Copyright ©2024 Nelson Mullins Riley & Scarborough LLP
For more on the Corporate Transparency Act, visit the NLR Corporate & Business Organizations section.

Employment Tip of the Month – February 2024

Q: Can my company treat employees adversely because of their personal political beliefs? If they wear a shirt of their favorite candidate? Or proselytize about their candidate?

A: The short answer: There exists no “First Amendment Right to freedom of expression” in a private workplace, and that extends to political expression. See Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921 (2019) (Only “State actors subject to First Amendment constraints.”)

So, yes, legally a private employer can refuse to hire Democrats or Republicans, and can fire an employee for wearing a shirt of their candidate or vocalizing a particular political position.

On the other hand, other laws can apply, such as the right to “concerted action” under the National Labor Relations Act. Overt adverse action also could be ripe for allegations of selective enforcement, such as “you only selectively enforce this rule against me because I am ___________”, where Title VII covers race, sex, religion, color and national origin; ADA covers disability; ADEA age, etc. Some political positions could easily bleed over into religious beliefs.

Even if legally permissible for a private employer to discriminate against holders of one particular political belief, from a practical management perspective, it cannot be recommended, and would be loaded with risk. Also, it could simply make for bad optics and make it harder to attract and retain the best talent.

Finally, this answer changes entirely for public employers and government employers, where employees do possess First Amendment rights, so long as, in general, they are speaking (1) as a private citizen, (2) about a matter of public concern, and (3) their speech does not interfere with the job. There are exceptions for high-ranking individuals, political appointees or someone trying to release classified information, though in many instances they would still be protected from retaliation.

© 2024 Wilson Elser
For more news on Political Expression in the Workplace, visit the NLR Labor & Employment section.

Parody of Iconic Sneaker Isn’t Entitled to Heightened First Amendment Protection

The US Court of Appeals for the Second Circuit upheld a temporary restraining order and preliminary injunction enjoining use of a trademark and trade dress associated with an iconic sneaker design over a First Amendment artistic expression defense. Vans, Inc. v. MSCHF Product Studio, Inc., Case No. 22-1006 (2d Cir. Dec. 5, 2023) (per curiam). This case is the first time a federal appeals court has applied the Supreme Court of the United States’ recent decision in Jack Daniel’s v. VIP Products, which clarified when heightened First Amendment protections apply to expressive uses of another’s trademark and trade dress.

MSCHF Product Studio is a Brooklyn-based art collective known for provocative works that critique consumer culture. It sells its works in limited releases during prescribed sales periods called “drops.” It promoted and sold a shoe called the “Wavy Baby,” which is a distorted, corrugated version of the iconic black-and-white Vans Old Skool sneaker. MSCHF claimed that the product was a commentary on consumerism in sneakerhead culture and that the Wavy Baby shoes were not meant to be worn but were instead “collectible work[s] of art.”

MSCHF promoted the shoes using the musician Tyga. Vans sent MSCHF a cease-and-desist letter and a week later filed a six-count complaint in federal court, including a claim for trademark infringement under the Lanham Act. The following day, Vans filed a motion for a temporary restraining order, seeking to have the court enjoin the sale of the Wavy Baby shoes. Nevertheless, MSCHF proceeded with its pre-planned drop of the Wavy Baby sneakers and sold 4,306 pairs of the Wavy Baby in one hour.

About a week later, after oral argument on the temporary restraining order (TRO) motion, the district court granted Vans’s motion. The district court concluded that Vans would likely prevail in showing a likelihood of consumer confusion and rejected MSCHF’s contention that the Wavy Baby was entitled to special First Amendment protections because it was an artistic parody. MSCHF appealed.

The Second Circuit held the appeal in abeyance pending the Supreme Court’s Jack Daniel’s decision. In that case, Jack Daniel’s sued the maker of a squeaky dog toy that resembled the iconic whiskey bottle and used puns involving dog excrement in place of the actual language of the Jack Daniel’s label. In a unanimous decision, the Court clarified that special First Amendment protections (as used in the Rogers test for expressive works that incorporate another’s trademark) do not apply when a trademark is used as a source indicator—that is, “as a mark.”

The Second Circuit concluded that the Jack Daniel’s case “forecloses MSCHF’s argument that Wavy Baby’s parodic message merits higher First Amendment scrutiny” because, even though the product is a parody, the Rogers test does not apply if the mark is also used as a source identifier. The Second Circuit drew a direct parallel between Wavy Baby and the punning dog toy in the Jack Daniel’s case, noting that in both cases the infringing product evoked the protected trademark and trade dress of the target to benefit from the “good will” developed by the source brand. Hence, the Court held that the district court did not err in applying the traditional likelihood-of-confusion analysis rather than the speech-protective Rogers test.

Practice Note: An alleged infringer of a trademark may claim that its product is artistic expression to trigger the heightened First Amendment protections offered by filters such as the Rogers test. However, after Jack Daniel’s, courts are more likely to regard such defenses with skepticism unless the allegedly infringing work falls into a more canonical category of artistic expression such as a film, television show, song or video game.

This article was authored by Karen Gover.

© 2023 McDermott Will & Emery
For more news on First Amendment Trademark Protections, visit the NLR Intellectual Property section.

Supreme Court to Consider First Amendment Protection for Parody Dog Toy

The Supreme Court of the United States has agreed to consider the scope of protection afforded by the First Amendment to commercial parody products that feature the unauthorized use of another party’s trademark(s). Jack Daniel’s Properties, Inc. v. VIP Products LLC, Case No. 22-148 (Supr. Ct. Nov. 21, 2022) (certiorari granted). The questions presented are as follows:

  1. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims.
  2. Whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.

This is the second time Jack Daniel’s has filed a petition for certiorari in connection with this case. The Supreme Court first considered the matter in January 2021, following the US Court of Appeals for the Ninth Circuit’s decision to vacate and remand the district court’s finding of trademark infringement, reverse the judgment on dilution and uphold the validity of Jack Daniel’s trademark and trade dress rights.

The case then returned to the district court, which granted summary judgment to VIP Products. The Ninth Circuit affirmed and then Jack Daniel’s filed its second petition for certiorari.

The Supreme Court will seek to settle the long-standing split amongst the US Courts of Appeal regarding the proper analysis for parody in trademark infringement and dilution claims and the scope of protection afforded to it via the First Amendment.

For more Supreme Court and Litigation News, click here to visit the National Law Review.

© 2022 McDermott Will & Emery

U.S. Supreme Court Sides with Public High School Coach in Free Speech/Freedom of Religion Case

The U.S. Supreme Court issued a ruling which will have wide-ranging effects on the ability of governmental entities to react to religious and other speech of public employees. In Kennedy v. Bremerton Schools, the Court ruled that a public high school could not discipline or disfavor a football coach for his practice of kneeling on the 50-yard line and praying at the conclusion of each game, eventually growing to include most of the football team and opposing players as well. The school district had attempted to accommodate the coach’s desire for prayer, but concerns mounted when one parent complained that her son felt compelled to participate despite being an atheist. The coach was eventually placed on administrative leave and not extended an offer to return to coaching the next school year. Both the district court and the U.S. Court of Appeals for the Ninth Circuit rejected the coach’s First Amendment challenges.

With a 6-3 majority, the Supreme Court reversed. In doing so, the Court first found a violation of the Free Exercise Clause.  The Court discounted the school district’s stated concerns that the coach’s practice could violate the Establishment Clause or interfere with students’ right of free exercise. The Court held that absent evidence of “direct” coercion the Establishment Clause was not implicated and then concluded that the coach’s position of authority over the players was insufficient to constitute direct coercion.  The Court distinguished earlier cases involving prayers at football games and civic meetings, by emphasizing that the speech for which the coach was disciplined was not publicly broadcast or recited to a captive audience. Additionally, students were not required or formally expected to participate.

With respect to the Free Speech issue, the Court concluded that the coach’s prayers were not unprotected “government speech,” and in doing so applied a restrictive view of what could be considered “government speech.”  The Court held that because the coach’s job duties did not include leading prayers, the fact that the speech occurred on the field immediately after the game was insufficient to transform it from private speech to government speech.  “To hold differently,” the Court stated, “would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”

The decision, together with Shurtleff v. Boston decided earlier this Term, suggests a sharp break with past Court jurisprudence on the balance between the dictates of the Establishment and Free Exercise Clauses.  Government entities should review their policies on religious activity on government property or by employees in connection with their positions in light of these two decisions.

Article By Ahmad Chehab, Scott R. Eldridge, and Robert T. Zielinski of Miller Canfield

For more civil rights legal news, click here to visit the National Law Review.

© 2022 Miller, Canfield, Paddock and Stone PLC

Supreme Court Offers Clarification on Protection for Off Campus Speech: Implications for School Boards & First Amendment

On June 23, 2021, the U.S. Supreme Court held that the Mahanoy Area School District violated the First Amendment rights of Brandi Levy, a high school student who went to Snapchat to voice her frustrations when she didn’t make the varsity school cheerleading team.

Ms. Levy posted on her personal Snapchat a few photos showing the middle finger, one with the caption, “F*** school f*** softball f*** cheer f*** everything,” and the other saying, “Love how me and [another student] get told we have another year of jv before we make varsity but tha[t] doesn’t matter to anyone else.” which was visible to about 250 people at the time, many of whom were fellow students.  Snapchat messages, by design are meant to go away not long after they are sent.

In this circumstance, at least one other student took a screenshot of the post(s) and shared it with her mother, who was also a coach, to express concern, the school district decided Ms. Levy violated school and team rules, and was ultimately suspended from the junior varsity cheer squad for the remainder of the year.

Ms. Levy and her parents sued Mahanoy School District (“School District”) under 42 U.S.C. § 1983, stating that her suspension violated the First Amendment, and Mahanoy’s team and school rules were overbroad and unconstitutionally vague. The School District argued that they were within their rights to suspend Ms. Levy because of the previous Supreme Court decision Tinker v. Des Moines Independent Community School District, which ultimately held that school officials could regulate speech that would disrupt the work and discipline of the school.

Both the United States District Court for the Middle District of Pennsylvania and the Third Circuit Court of Appeals sided with Ms. Levy, and the Mahanoy School District filed a petition for certiorari, asking whether Tinker standard did or did not apply to this case.

The Supreme Court needed to decide whether the First Amendment prohibits public schools from regulating off-campus speech, and whether the Third Circuit correctly held that the school violated Ms. Levy’s first amendment rights. It was an 8 to 1 decision, with Justice Stephen Breyer drafting the majority opinion and Justice Clarence Thomas authoring the dissenting opinion.

The Supreme Court previously outlined three instances where a school may regulate student speech: (1) incident, lewd or vulgar speech uttered during a school assembly on school grounds, (2) speech uttered during a class trip that references illicit drug use, and (3) speech that others may perceive as bear[ing] the imprimatur of the school, such as in a school newspaper.

Ms. Levy’s words of criticism were outside of school hours and not on school property, and although they were vulgar, they were not threatening in nature, so the Supreme Court held the School District did not have the right to punish Ms. Levy and she was not outside of her First Amendment rights.

What are the Free Speech Implications?

While the Supreme Court ruled in favor of Ms. Levy in this case, the ruling does not necessarily protect all off-campus speech. For example, in Tinker v. Des Moines Independent Community School District, the Supreme Court said schools may regulate speech that disrupts the order of the school or infringes on others’ rights. In his dissenting opinion, Justice Thomas said schools have the authority to regulate speech off-campus when it harms the school and threatens its faculty.

The Court said exceptions to the ruling in Mahanoy Area School District v. B.L. would be limited, and would have to be worked out in future cases. Justice Samuel Alito said in his concurring opinion that “the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”

According to previous precedent, students do not lose their First Amendment rights when they set foot on school grounds.

“I think this result is foreseeable insofar as the Court seemed unlikely during oral argument to adopt the Third Circuit’s broad view that schools can’t regulate off-campus speech at all, but they also seemed to think the school had overreached here,” said Gautam Hans, assistant clinical professor of law and director of the Stanton Foundation First Amendment Clinic at Vanderbilt University Law School in a statement to the National Law Review.

The Court outlined three facets that distinguish schools’ efforts to regulate off-campus speech. First, it’s the parents’ responsibility to regulate students’ speech off campus. Additionally, if a student is subjected to speech regulations on and off campus, then their speech is regulated 24 hours a day.

“That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all,” per Justice Breyer writing for the majority. Lastly, the Court said schools are America’s “nurseries of democracy,” and therefore have an interest in protecting students’ unpopular opinions.

“Justice Breyer’s adoption of a flexible standard for when schools can regulate speech off-campus demonstrates the real challenges for schools and the need to balance competing interests. I suspect this will get litigated a fair amount in the coming years as courts try to figure out what to do with the standard articulated here,” Professor Hans said.

The Court specifically pointed out that in this case, Ms. Levy’s Snapchats were sent outside of school hours on her own time and were not sent on school grounds. She also did not identify the school itself in the posts, and did not target any person in particular. Therefore, the school did not have the right to suspend her.

“Likewise, there is little to suggest a substantial interference in, or disruption of, the school’s efforts to maintain cohesion on the school cheerleading squad,” the Court said.

What are the Implications for School Boards & Administrators?

In his dissenting opinion, Justice Thomas criticized the Court’s majority opinion for being too vague, and for its lack of guidance to schools on how to discipline students moving forward.

“Because the Supreme Court declined to set forth a uniform rule and give leeway to schools to regulate off-campus speech, the lower courts will further shape the landscape of First Amendment application to student speech,” per  Christine V. Hamiel, Chair of the School Law Section at von Briesen & Roper. “School boards and administration must be mindful that such further interpretation will continue to lay the foundation for what action a school may take with respect to student off-campus speech.”

Due to the ruling’s lack of uniformity, school administrators will have to think about the specific characteristics of off-campus speech when deciding whether or not to respond with disciplinary action.

“While acknowledging that there can be circumstances where off-campus speech may be regulated, it is clear from the decision that the characteristics of off-campus speech that differentiate it from speech at school or at a school function will make it more difficult to pass constitutional muster when dealing with off-campus speech,” per  Robert Burns, Chair of the School and Higher Education Team at Davis Kuelthau. “School administrators will have to analyze such issues carefully when contemplating responding to off-campus speech.”

Moving forward, schools will have to consider multiple factors of the impact of students’ speech when determining if and how to respond.

“The Supreme Court recognized that there can be circumstances where off-campus speech implicates the regulatory interests of schools,” Mr. Burns said.  “It concluded that the facts in Mahanoy did not rise to that level, but going forward school districts are in a position to respond to such speech if they conclude it is creating a substantial disruption of learning or threatening the protection of the school population.”

Should a school decide to take action against a student for off-campus speech, they must also determine the circumstances around the student’s speech.

“Schools must carefully consider each situation and the unique circumstances of each situation on a case-by-case basis, taking into consideration three key features: the authority a school has over the off-campus student; the content of the speech at the time it is made (given that off-campus regulation opens the door to school regulation of all student speech); and a school’s responsibility in maintaining a free ‘marketplace of ideas,’” Ms. Hamiel said.

Copyright ©2021 National Law Forum, LLC

ARTICLE BY Rachel Popa and Hanna Taylor of
The National Law Review / The National Law Forum LLC
For more articles on the Supreme Court, visit the NLRLitigation / Trial Practice section.

The Intersection of Libel Law and Politics

Libel Commentary

Since its beginning, the American Republic has debated sedition, free speech, and protection of reputation. After we cut our British roots we ensured our right to criticize our leaders, the politicians who control our government. The British crown demanded loyalty of its printers, but American courts would not tolerate such prosecutions as the notion of a truly free press emerged.

Today, we are witnessing an intense intersection of politics and libel law unlike anything we’ve seen since the 1960s. Politicians are suing for libel damages and being sued. The current overlap of politics and libel includes a push by the president of the United States to change libel law. Those who seek change, including President Trump, say they want to make it easier for plaintiffs to prevail and collect damages. Careful what you wish for, though, because such change would ease the path for plaintiffs seeking to collect damages from public officials such as Donald Trump.

Heading into the 2020 election, the Trump campaign filed three lawsuits in a 10-day period against mainstream media.

Legal scholars and pundits have opined that Trump’s pending libel complaints against The New York Times, The Washington Post, and CNN are weak or even dead on arrival. These analysts point out that Trump’s campaign is seeking damages due to political opinions, which are protected speech under the First Amendment.

As a life-long public figure and now public official, Trump (his re-election campaign is the plaintiff) must prove that the media defendants acted with actual malice, that is, reckless disregard for the truth or that they published information knowing it was false. The actual malice standard is well established through the First Amendment by a unanimous U.S. Supreme Court in New York Times v. Sullivan in 1964.

Win or lose in court, the president’s libel lawsuits also are political messaging, dramatic actions that complement his anti-press rhetoric. The stories about the libel suits are arguably more effective than the libel suits themselves in the president’s battles to discredit the mainstream press. In addition to political messaging, libel claims – even when they fail in court — can be a form of punishment.

Historical Context

Presidential involvement in libel litigation is rare, but not unprecedented. President Theodore Roosevelt was irritated by published allegations of corruption in the sale of the Panama Canal. He pushed the Justice Department to prosecute publisher Joseph Pulitzer and other newspapermen for criminal libel. Courts later quashed indictments.

After his presidency, Roosevelt was sued for libel by a New York political figure (William Barnes) who objected to being called corrupt by Roosevelt. The jury trial, in Syracuse in 1915, was grist for Dan Abrams’ book “Theodore Roosevelt for the Defense.” The jury ruled in Roosevelt’s favor; he seemed to thrive in legal combat, the book says.

Fifteen years ago, there was speculation about the prospect of President George W. Bush suing the National Enquirer. The Enquirer published a report based on unnamed sources who claimed that pressures of the job led Bush to drink, even though he said he gave up alcohol on his 40th birthday.

“The president would be exceptionally ill-advised to file suit over this story, even if he knows . . . it’s false,” wrote First Amendment lawyer Julie Hilden in 2005.

She suggested such a suit would likely fail because its “actual malice” claim appeared to be weak. Plus, she warned, the suit would expose the president to civil discovery. Bush did not sue.

After the 1964 election, Republican presidential candidate Barry Goldwater successfully sued Fact Magazine and its publisher for an article questioning Goldwater’s mental fitness to hold office (Goldwater v. Ginzburg). Federal courts found that Goldwater’s complaint met the actual malice standard, awarding $75,000. The U.S. Supreme Court, in 1970, declined to hear the case.

Trump’s Track Record

In seven earlier speech-related cases filed by Donald Trump or his companies before he became president, four were dismissed on the merits, two were voluntarily withdrawn, and one was an arbitration won by Trump by default. These findings were compiled by Susan E. Seager, a First Amendment attorney who teaches media law at University of Southern California. Indeed, this appears to be a way of life for the highly litigious Trump, who has been involved in approximately 4,000 legal battles over the past 30 years, both as a plaintiff and defendant. An exhaustive analysis by USA Today detailed those seven libel cases where he initiated the lawsuits and seven more where he was named defendant. These don’t even include the threats of suits, the so-called “I’ll sue you” effect that can too often chill speech.

A common thread of these cases is the pursuit of jumbo damages. Trump alleged $5 billion in damages (in New Jersey state court) because author Timothy O’Brien and his book publishers cast doubt on the size of the real estate mogul’s wealth. Trump lost after five years of litigation but assessed the outcome this way to The Washington Post: “I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [O’Brien’s] life miserable, which I’m happy about.”

Judicial Nominations

Judicial appointments are a priority for the Trump Administration. Interestingly, a judge nominated by the president in 2018 dismissed (with prejudice) a case filed by a Republican congressman.

On August 5, 2020, U.S. District Court Judge C.J. Williams of the Northern District of Iowa dismissed Congressman Devin Nunes’ defamation complaint against Esquire writer Ryan Lizza and its publisher. The judge said published criticism of Nunes (R-CA) was not actionable (Devin G. Nunes v. Ryan Lizza and Hearst Magazine Media, Inc).

Interestingly, part of this recent case deals directly with President Trump and his tweets. I’ll quote Judge Willliams’ opinion regarding Trump’s tweet that “Obama had my ‘wires tapped’ in Trump Tower:”

First, to the extent defendants assert President Trump “made up” the tweet,

the statement is not of an concerning plaintiff (Nunes). Second, plaintiff has

not alleged that the statement is false. Third, even if the statement is factually inaccurate, the statement that plaintiff’s theory about surveillance of the Trump campaign “began” with President Trump’s tweet is not defamatory.

Other Political Cases

Sarah Palin, John McCain’s vice-presidential running mate in 2008, sued The New York Times for defamation, claiming that a 2017 editorial maliciously associated her with a mass shooting that injured Congresswoman Gabrielle Giffords (D-AZ). A federal judge dismissed her case, but a 3-0 panel of the U.S. Second Circuit Court of Appeals reversed, thus reviving the case (Sarah Palin v. The New York Times).

Besides the characters involved – and the reversal in federal court – this case is interesting because The New York Times published a correction: “An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.”

To prevail, Palin – a public figure — must show that the newspaper acted with actual malice.

Meanwhile, a former contestant on “The Apprentice,” Summer Zervos sued President Trump in 2017 claiming she was defamed because candidate Trump said her allegations of his sexual misconduct in 2007 were lies. In 2019, a 3-2 majority of a New York State appeals court rejected the argument from Trump’s counsel that a sitting president cannot be sued in state court (Zervos v. Trump).

In addition to its spotlight on the Supremacy Clause, the Zervos lawsuit also examines the boundaries of opinion-as-defense in defamation disputes. Trump’s lawyers argue that his campaign rhetoric and opinions are protected by the First Amendment.

Nicholas Sandmann, a student at Covington Catholic High School in northern Kentucky, alleged that he was defamed by news coverage and social media sharing of accounts of his encounter near the Lincoln Memorial with a Native American activist in early 2019. Sandmann sued The Washington Post for $250 million; NBC and CNN for $275 million each.  CNN and The Washington Post settled for undisclosed terms.

Are media rattled by all this litigation? Yes, I think that’s pretty apparent. How could they not be in this anti-press environment? Libel claims are part of a general, overarching criticism of press, reporting the news, and media prerogatives.

From a bottom-line standpoint, media must pay for legal defense. Newspaper publisher McClatchy — a defendant in one of Congressman Devin Nunes’ myriad libel suits — filed for bankruptcy in February. The Poynter Institute for journalism published commentary in 2019 that McClatchy could hire 10 reporters for the money it would spend on the Nunes lawsuit.

A small newspaper in Iowa (Carroll Times Herald) won a libel case but created a GoFundMe appeal in 2019 because the legal defense drained its resources. Response to the solicitation — mainly small donations, from across the country — was impressive.

Most certainly the Sandmann cases have drained considerable resources from some of the most noted media companies in the country as those out-of-court settlements show.

Non-political Cases

We also see a flurry of high-dollar claims not directly related to political speech.

On August 14, the unanimous North Carolina Supreme Court upheld a jury’s libel decision against the Raleigh newspaper (Beth Desmond v. The News & Observer Publishing Company). The Ohio private liberal arts Oberlin College is appealing the whopping $44 million in damages awarded to a local bakery stemming from an alleged shoplifting attempt by three African American students (Gibson’s Bakery v. Oberlin College). Rolling Stone paid dearly for its flawed article about a campus rape at the University of Virginia.

Is libel law likely to change?

Fundamental change is not likely in the near future. Justice Clarence Thomas suggested it’s time for the Supreme Court to examine/roll back the New York Times v. Sullivan standard created in 1964. The premise is that current strict standards intended to protect free speech and free press make it nearly impossible for public figures and public officials to prevail in libel cases.

Justice Thomas’ colleagues on the Court have not publicly joined him in urging review of Sullivan.

Libel cases are percolating in federal and state courts that eventually could ripen for Supreme Court review. The Roberts Court has been protective of speech, including commercial and political speech, such as:

  • Citizens United v. FEC, 2010 (political contributions)
  • Snyder v. Phelps, 2010 (picketing at funerals)
  • Sorrell v. IMS Health, 2011 (data mining, drug marketing)
  • Reed v. Town of Gilbert, 2015 (sign regulations cannot be based on content)
  • Matal v. Tam, 2017 (trademarks)​

We all can be grateful that American libel law does not mirror British libel law, where the burden of proof is on the defendant rather than the plaintiff. Surely by now we have all seen the clickbait coverage of actor Johnny Depp’s libel case against The Sun (Johnny Depp v. News Group Newspapers) for its 2018 reportage of his contentious divorce, which included a headline calling him a “wife beater.”

American libel law is not British libel law. And we need to keep it that way.

© Aimee Edmondson, PhD

Article by Aimee Edmondson, PhD E.W. Scripps School of Journalism at Ohio University and National Law Review Guest Contributor.
For more on free speech, see the National Law Review Constitutional Law section.

SCOTUS Favors Employers’ Religious Liberties Over Employee Rights

The Supreme Court of the United States (SCOTUS) issued two important decisions this week in cases reflecting the ongoing legal tensions between employers’ religious liberties and the right of employees to be free from discrimination; and in both cases, SCOTUS tipped the scales decidedly in favor of employers’ religious liberties.

First Amendment Supersedes Employment Discrimination Claims

The Supreme Court issued a decision in two similar cases – essentially dismissing the discrimination claims brought by two Catholic school teachers who were discharged from their instructional positions at two different Catholic schools in southern California. In Our Lady of Guadalupe School v. Morrissey-Berru (19-267), and St. James School v. Biel (19-348), the Supreme Court held by a 7-2 majority that the U.S. Constitution’s First Amendment Religion Clauses foreclose the teachers’ employment discrimination claims. In the OLG case, the former teacher sued for age discrimination; in the St. James case, the teacher was dismissed after she sought a leave of absence for cancer treatment. The teacher later passed away.

Relying on the “ministerial exception” outlined in the 2012 SCOTUS decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), the majority opinion, authored by Justice Samuel Alito, noted that “religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg in dissent, criticizes the majority for its distillation of the Hosanna-Tabor standard into “a single consideration: whether a church thinks its employees play an important religious role,” and observes that it “strips thousands of schoolteachers of their legal protections.”

Religious Exemptions From Birth Control Mandate Under the Affordable Care Act

In a similar but procedurally more complicated ruling, the Supreme Court upheld the federal government’s expansion of a federal rule that exempts employers with religious or moral objections from being required to provide employees with health insurance coverage for birth control under the Affordable Care Act (ACA).

In a 7-2 decision in Little Sisters of the Poor v. Pennsylvania (19-431), SCOTUS tackled the latest skirmish of the ACA’s birth-control mandate. The ACA mandate generally requires employers to provide female employees health insurance with access to contraception. Religious entities have repeatedly challenged the rules, as well as the opt-out accommodation process developed under the Obama administration for employers with religious or moral exemptions.  (The Trump administration had expanded those exemptions.)

With the majority opinion authored by Justice Clarence Thomas, SCOTUS held that the departments of Health and Human Services, Labor, and the Treasury had authority to issue rules for employers. In a concurring opinion, Justice Elena Kagan (joined by Justice Stephen Breyer) acknowledges the statutory authority of the federal agencies, but cautions, “that does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside the HRSA’s [Health Resources and Services Administration’s] statutory authority, but also as ‘arbitrary [and] capricious.’”

In her dissenting opinion, Justice Ginsburg (joined by Justice Sotomayor) notes, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

Takeaways for Discerning Employers

While these Supreme Court decisions, in tandem, may bolster employers’ confidence in their sincerely held beliefs and moral objections about certain employment-related decisions, it is also important to recognize its limitations.  Employers should strategize with their leadership and legal counsel to carefully weigh whether and to what extent these decisions should (or will) inform their own policies and practices, as well as any resulting reputational impact and workplace morale considerations.

© 2020 BARNES & THORNBURG LLP

For more recent SCOTUS employment decisions, see the National Law Review Labor & Employment law section.

Youtube May Be an Enormous Town Square, But It’s Still Not Subject to the First Amendment

In Prager University v. Google LLC, et al., Case No. 18-15712 (9th Cir. Feb. 26, 2020), the Court of Appeals for the Ninth Circuit dismissed a First Amendment lawsuit against YouTube late last week, holding that the video hosting giant is a private forum that is free to foster particular viewpoints – and need not be content-neutral.  The victory is a significant message to other online content hosts, aggregators and service providers that they need not feel threatened by censorship claims for selecting and curating content on their systems.

The lawsuit began in 2017, when conservative media company PragerU sued YouTube for imposing restrictions on some of PragerU’s short animated educational videos.  YouTube tagged several dozen videos for age-restrictions and disabled third party advertisements on others.  PragerU claimed the restrictions constituted censorship because they muted conservative political viewpoints.

Traditionally, the First Amendment regulates only U.S. and state government actors when it comes to censoring speech; it does not touch the actions of private parties.  The Ninth Circuit noted that these principles have not “lost their vitality in the digital age.”  While this threshold question is not new, PragerU’s approach to this legal hurdle has drawn fresh interest in how courts’ conception of state action might one day shift in order to accommodate the digital re-imagining of a marketplace of ideas.

PragerU argued that YouTube should be treated as something akin to a government where it operates a “public forum for speech.”  The theory follows that because YouTube has an overwhelming share of the video sharing and streaming space, it essentially performs a “public function.”  The Ninth Circuit affirmed that public use of private resources, even on a large scale, is simply not governmental.  Just because YouTube generally invites the public to use its private property (in this case, its platform) for a specific or designated purpose, does not mean that property should lose its private character.  Similarly, the Ninth Circuit ruled almost twenty years ago that internet service provider America Online was not a government actor even though it broadly opened its networks to the public to send and receive speech.

PragerU’s theory does enjoy some support.  As the Ninth Circuit acknowledged, a private actor is a state or government entity for First Amendment purposes when it performs a public function that is “traditionally and exclusively governmental.”  In other words, the First Amendment may well still apply to private companies tasked with operating public elections or even local governmental administrative duties (for example, the proverbial “company town”).  But the Ninth Circuit simply did not accept the argument that YouTube’s function of “hosting speech on a private platform” bore any resemblance to “an activity that only governmental entities” traditionally and exclusively perform.  After all, noted the Court, even “grocery stores and comedy clubs have opened their property for speech.”  Neither was the Court persuaded that the sheer scale of YouTube’s operation – equal to perhaps many millions of grocery stores and comedy clubs – should alter the analysis.

Had the Ninth Circuit adopted PragerU’s approach, it would have been the first major judicial endorsement of the view that a private entity can convert into a public one solely where its property is opened up to significant public discourse.  Instead, the Ninth Circuit imposed and upheld a more traditional delineation between public and private actors in First Amendment jurisprudence.

© 2020 Mitchell Silberberg & Knupp LLP

See the National Law Review for more on constitutional law questions.

“Bikini Baristas” Ordered to Cover-Up

The 9th Circuit court of appeals has enforced the City of Everett, Washington’s Dress Code Ordinance and amendments to the Lewd Conduct Ordinances. These ordinances require employees of “Quick-Service” facilities to cover “minimum body areas” (the dress code ordinance specifically stated that it was targeting an apparent influx of “bikini barista stands”). The owner of “Hillbilly Hotties,” a coffee stand where employees wear only bikinis, and several of the bikini baristas themselves challenged the ordinances as unconstitutionally vague. Plaintiffs also alleged that the Ordinances violated their First Amendment right to free expression.

The Court of Appeals reversed a lower court ruling that prohibited enforcement of the Ordinances on the ground that they are unconstitutionally vague. The appeals court explained that a person of ordinary intelligence would be able to understand the terms in the Ordinance and would be adequately informed of which body areas cannot be exposed or displayed.

The Ninth Circuit also concluded that Plaintiffs’ first amendment claim faltered based upon their failure to show a great likelihood that their intended message would be understood by those who received it. The court found that the baristas’ acts of wearing pasties and g-strings in close proximity to customers did not necessarily convey the baristas’ purported message of female body confidence and empowerment.

Read the full decision here.

 

© 2019 Proskauer Rose LLP.
This article was written by Anthony J Oncidi and Cole D. Lewis of Proskauer Rose LLP.
For more on First Amendment questions please see the National Law Review Constitutional Law page.