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Posts Tagged ‘freedom of speech’

Arizona Appeals Court Cites Masterpiece Cakeshop Decision to Rule Out 1st Amendment Exemptions for Stationary Company

Posted on: June 11th, 2018 by Art Leonard No Comments

The precedential meaning of a Supreme Court decision depends on how lower courts interpret it.  The media reported the Supreme Court’s Masterpiece Cakeshop ruling as a “win” for baker Jack Phillips, since the court reversed the discrimination rulings against him by the Colorado Court of Appeals and the Colorado Civil Rights Commission.  But the opinion has a deeper significance than a superficial “win” or “loss” can capture, as the Arizona Court of Appeals demonstrated just days later in its rejection of a claim that a company that designs artwork for weddings and other special events can refuse to design and provide goods for same-sex weddings.

 

Alliance Defending Freedom (ADF), the same anti-LGBT legal outfit that represented Jack Phillips before the Supreme Court, represents Brush & Nib Studio, LC, a for-profit company that sells both pre-fabricated and specially designed artwork.  The company provides retail goods and services to the public, so it comes within the coverage of the city of Phoenix, Arizona’s, public accommodations anti-discrimination ordinance.

 

Although Brush & Nib had not received any requests to produce invitations for a same-sex wedding since such marriages became legal in Arizona, the owners had determined, based on their religious beliefs, that they would not provide their goods and services for such ceremonies.  Represented by ADF, they sued in the state trial court in Phoenix, seeking a preliminary injunction to bar enforcement of the ordinance against them in case such a customer should materialize in the future.

 

As described in the Court of Appeals’ opinion by Judge Lawrence F. Winthrop, the owners “believe their customer-directed and designed wedding products ‘convey messages about a particular engaged couple, their upcoming marriage, their upcoming marriage ceremony, and the celebration of that marriage.”  And they did not want any part of it.  They “also strongly believe in an ordained marriage between one man and one woman, and argue that they cannot separate their religious beliefs from their work.  As such, they believe being required to create customer-specific merchandise for same-sex weddings will violate their religious beliefs.”

 

They not only wanted to be assured that they could reject such business without risking legal liability; they also wanted to post a public statement explaining their religious beliefs, including a statement that they would not create any artwork that “promotes any marriage except marriage between one man and one woman.”  They haven’t posted such a statement yet out of concern that it would violate a provision of the Phoenix ordinance, which forbids a business from posting or making any communication that “states or implies that any facility or services shall be refused or restricted because of . . . sexual orientation . . . ,  or that any person, because of . . . sexual orientation . . . would be unwelcome, objectionable, unacceptable, undesirable, or not solicited.”

 

Maricopa County Superior Court Judge Karen Mullins rejected the motion for preliminary injunction, finding that the business did not enjoy a constitutional exemption.  The Court of Appeals held up ruling on ADF’s appeal until the Supreme Court issued its Masterpiece Cakeshop ruling on June 4, then quickly incorporated references to it into the opinion by Judge Winthrop issued on June 7.

 

After reviewing the unbroken string of state appellate court rulings from around the country that have rejected religious and free speech exemption claims in such cases over the past several years, Judge Winthrop wrote: “In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” citing the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

 

He continued with a lengthy quote from Justice Anthony Kennedy’s opinion for the Supreme court in Masterpiece Cakeshop:

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, ‘[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy [Piggie] Park Enterprises, Inc. (1968) (per curiam); see also Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (‘Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments’).”

 

The cases cited by Justice Kennedy in the quoted paragraph evidently sent a strong message for lower courts. Piggie Park is a classic early decision under the Civil Rights Act of 1964, holding that a restaurant owner’s religious opposition to racial integration could not excuse him from serving people of color in his barbecue restaurant.  Hurley was the famous St. Patrick’s Day Parade case from Boston, where the Supreme Court upheld the 1st Amendment right of parade organizers to exclude a gay Irish group from marching under their own banner proclaiming their gay identity.  The quoted language from that decision made clear that state’s may pass laws forbidding sexual orientation discrimination by businesses, but in this case the Court found that the parade organizers were not a business selling goods and services, but rather the non-profit organizers of an expressive activity who had a right to determine what their activity would express.

 

The points are clear: States can forbid businesses from discriminating against customers because of their sexual orientation, and businesses with religious objections will generally have to comply with the non-discrimination laws. The “win” for baker Jack Phillips involved something else entirely: the Supreme Court’s perception that Colorado’s Civil Rights Commission did not give Phillips a fair hearing because members of the Commission made public statements denigrating his religious beliefs at the hearing.  Justice Kennedy insisted for the court that a litigant’s dignity requires that the tribunal deciding his case be neutral and not overtly hostile to his religious beliefs, and that was the reason for reversing the state court and the state agency.  Kennedy’s discussion of the law clearly pointed in the other direction, as Justice Ruth Bader Ginsburg observed in her dissent.  And the Arizona Court of Appeals clearly got that message.

 

Turning to ADF’s free speech argument, Justice Winthrop wrote, “Appellants argue that [the ordinance] compels them to speak in favor of same-sex marriages. We disagree.  Although [it] may have an incidental impact on speech, its main purpose is to prohibit discrimination, and thus [it] regulates conduct, not speech.”

 

The court found this case similar to Rumsfeld v. FAIR, a case in which the Supreme Court rejected a free speech challenge by an organization of law schools to a federal law that required schools to host military recruiters at a time when the Defense Department’s policies discriminated against gay people. The law schools claimed that complying with the law would violate their 1st Amendment rights, but the Supreme Court said that the challenged law did not limit what the schools could say, rather what they could do; that is, conduct, not speech.

 

“We find Rumsfeld controlling in this case,” wrote Winthrop. The court found that the “primary purpose” of the city ordinance is to “prohibit places of public accommodation from discriminating based on certain protected classes, i.e., sexual orientation, not to compel speech. . .  Like Rumsfeld, [the ordinance] requires that places of public accommodation provide equal services if they want to operate their business.  While such a requirement may impact speech, such as prohibiting places of public accommodation from posting signs that discriminate against customers, this impact is incidental to property regulated conduct.”

 

Further distinguishing this case from the Hurley decision, the court said that requiring the business to comply with the law “does not render their creation of design-to-order merchandise for same-sex weddings expressive conduct. The items Appellants would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public.  Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa).  This invitation would not differ in creative expression.  Further, it is unlikely that a general observer would attribute a company’s product or offer of services, in compliance with the law, as indicative of the company’s speech or personal beliefs.  The operation of a stationery store – including the design and sale of customized wedding event merchandise – is not expressive conduct, and thus, is not entitled to First Amendment free speech protection.”

 

The court also rejected an argument that the ordinance violated the right of expressive association. “We do not dispute that some aspects of Appellants’ operation of Brush & Nib may implicated speech in some regard,” wrote Justice Winthrop, “but the primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity.  Thus, Appellants’ operation of Brush & Nib is not the type of expressive association that the First Amendment is intended to protect.”  Certainly not like a parade, which the court in Hurley described as a “quintessential” expressive activity.

 

However, the court found that the portion of the ordinance dealing with forbidden communications used vague language that was overbroad and unclear about which statements might constitute violations. “We are unable to interpret [the ordinance’s] use of the words ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ in a way that would render [it] constitutional,” wrote Winthrop.  “The presence of one invalid prohibition, however, does not invalidate all of [the ordinance].”

 

“Here, by striking the second half [of the offending section] – which bans an owner of a place of public accommodation from making a person feel ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ based on sexual orientation – does not render the remainder of the ordinance unenforceable or unworkable. . .   The remainder of [the provision] operates independently and is enforceable as intended.”

 

Turning to the free exercise of religion issue, the court had to deal with the state’s Free Exercise of Religion Act, which prohibits governmental entities in Arizona from substantially burdening a person’s exercise of religion “even if the burden results from a rule of general applicability” unless the rule is both “in furtherance of a compelling government interest and is the least restrictive means of furthering that governmental interest.” The statute’s language is taken verbatim from the federal Religious Freedom Restoration Act.

The court rejected the argument that requiring the business to provide goods and services for same-sex weddings imposed a substantial burden on the religious beliefs of the business owners. “Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite sex couples,” wrote Winthrop.  “Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples.  [The ordinance] merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation.”  They could stop selling wedding-related goods altogether, but what they “cannot do is use their religion as a shield to discriminate against potential customers,” said the court.  Although providing those goods and services to same-sex couples might “decrease the satisfaction” with which they practice their religion, “this does not, a fortiori, make their compliance” a substantial burden to their religion.

 

And, even if it did impose such a burden, the court found that the city of Phoenix “has a compelling interest in preventing discrimination, and has done so here through the least restrictive means. When faced with similar contentions, other jurisdictions have overwhelmingly concluded that the government has a compelling interest in eradicating discrimination.”  The court quoted from the Washington Supreme Court’s decision in Arlene’s Flowers, but could just as well have been quoting Justice Kennedy’s language in Masterpiece Cakeshop, quoted here.

 

Finally, the court rejected an equal protection challenge to the ordinance, finding that it did not treat people with religious beliefs about marriage differently than others, and that the owners of the business could not claim that they are members of a “suspect class” for purposes of analyzing their equal protection claim. “Phoenix has a legitimate governmental purpose in curtailing discriminatory practices,” wrote Winthrop, “and prohibiting businesses from sexual orientation discrimination is rationally related to that purpose.”

 

A spokesperson for ADF promptly announced that they would seek review from the Arizona Supreme Court, which has discretion whether to review the decision. Seeking review, however, is a prerequisite to petitioning the U.S. Supreme Court.  ADF is clearly determined to get this issue back before the Supreme Court.  It represents Arlene’s Flowers, whose petition is now pending, and it also represents a videography company in a case similar to Brush & Nibs, affirmatively litigating to get an injunction to allow the company to expand into wedding videos without having to do them for same-sex weddings.  The district court’s ruling against them in that case is now on appeal in a federal circuit court. One way or another, it seems likely that this issue will get back to the Supreme Court before too long.

 

European Human Rights Court Rules Against Russia on “Homosexual Propaganda” Laws

Posted on: June 20th, 2017 by Art Leonard No Comments

 

A seven-member chamber of the European Court of Human Rights in Strasbourg issued a judgment on June 20 in the case of Bayev & Others v. Russia, Applications nos. 67667/09 and 2 others, holding that local and national laws in Russia making it an administrative offense for somebody to “promote homosexuality among minors” or to promote “non-traditional sexual relations” violates the free speech and equality provisions of the European Convention on Human Rights.  The Parliament of the Russian Federation ratified the Convention in 1998, during the period of liberalization in that country, but in 2015 the Parliament approved a draft law endorsed by President Vladimir Putin authorizing Russia to ignore rulings of the European Court of Human Rights when they were inconsistent with the Russian Constitution.  Despite their proclaimed purpose of protecting minors, the laws have been aggressively enforced to prevent public demonstrations in support of LGBT rights.

The Bayev case consolidated applications to the court by three Russian gay rights advocates, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, each of whom had been prosecuted under either the local laws or the federal law, all of which made it an administrative offense, punishable by a fine, to “promote homosexuality” or “non-traditional relationships” to minors.  These applicants had demonstrated with banners asserting the normality of homosexuality, in two cases in places where children were likely to see them (schools, libraries) and in one case in front of a government building.  Each of them was fined, and their appeals were rejected by the constitutional courts in Russia.

In defending the laws, the Russian government insisted that they were within its authority, and consistent with the European Convention, to protect the morals of youth and the demographic and health concerns of the nation by prohibiting such “promotion.”  The government pointed to the severe demographic challenge faced by Russia, which has suffered a declining population, as well as the risks of HIV transmission through homosexual activity and the need to channel Russian youth into traditional heterosexual family relationships to produce more children.

The applicants pointed to the protection for freedom of expression and equality under Articles 10 and 14 of the Convention, contending that the government had not provided adequate justification for censoring the applicants’ messages.

The seven-member chamber, whose judgment will be appealed by Russia to a larger “Grand Chamber” of the court, included judges from Sweden, Spain, Switzerland, Slovakia, Cyprus and the Netherlands, as well as a Russian judge, who was the lone dissenter from the judgment.

The court thoroughly rejected the Russian government’s argument in support of the laws.  The government admitted that the laws restricted freedom of expression, but claimed that the restriction fell within the “margin of appreciation” for justified restrictions.  While noting the government’s argument that the “margin of appreciation” is wide “where the subject matter may be linked to sensitive moral or ethical issues” as to which there is no European consensus, in this case, the court said, “there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms,” citing to its earlier judgment in a case brought by Mr. Alexeyev in opposition to the earliest local enactment of a similar law.

Seeking to justify its position, the government alleged the “incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality,” but the court was not convinced.  “The Court sees no reason to consider these elements as incompatible, especially in view of the growing general tendency to include relationships between same-sex couples within the concept of ‘family life’ and the acknowledgement of the need for their legal recognition and protection.”  After noting the strong trend in Europe towards recognition for same-sex relationships, and suggesting that the court’s jurisprudence had to move with the times, the court also noted the strong desire of same-sex couples to form families and raise children. Furthermore, said the court, “The Government failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or would compromise their future.”

“The Court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” said the court. “It held that these negative attitudes, references to traditions or general assumptions in a particular country cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment, any more than similar negative attitudes towards those of a different race, origin or color.”  The court found that the challenged Russian laws are “an example of such predisposed bias,” and rejected the idea that because the majority of Russians strongly oppose homosexuality, that would justify the government in abridging the freedom of expression of gay people seeking to protect their rights.  Thus, the Court rejected the government’s argument that “regulating public debate on LGBT issues may be justified on the grounds of the protection of morals.”

The court also rejected the government’s argument that the laws could be justified as public health measures or as a means to address the country’s demographic problems. In fact, the court pointed out, ignorance about homosexuality would be counterproductive as a public health measure, and there was no evidence that suppressing all discussion of homosexuality that could come to the attention of minors would contribute to growth of the Russian population.  “Population growth depends on a multitude of conditions, economic prosperity, social-security rights and accessibility of childcare being the most obvious factors among those susceptible to State influence,” wrote the court.  “Suppression of information about same-sex relationships is not a method by which a negative demographic trend may be reversed. Moreover, a hypothetical general benefit would in any event have to be weighed against the concrete rights of LGBT individuals who are adversely affected by the impugned restrictions. It is sufficient to observe that social approval of heterosexual couples is not conditional on their intention or ability to have children.”

The court also found that the laws could not be justified as a measure to “protect the rights of others,” such as minors themselves or their parents. The laws did not prevent parents from instructing their children or promoting traditional heterosexual relationships to their children.  Furthermore, the laws as interpreted by the Russian courts and applied to the applicants in these cases were clearly both vague and overly broad, extending to activities that were hardly likely to undermine parental authority or to harm children.

The court found that the biased views underlying the laws also supported the applicants’ arguments that the laws violate Article 14 of the Covenant, which guarantees equality.

As a remedy, the court ordered that the Russian government refund to the applicants the fines they had been ordered to pay, and also awarded them monetary damages to compensate for expenses incurred in connection with this litigation. Also, wrote the court, “it considers that the applicants suffered stress and anxiety as a result of the application of the discriminatory legal provisions against them. It also notes that the impugned legal provisions have not been repealed and remain in force, and thus the effects of the harm already sustained by the applicants have not been mitigated,” so it awarded additional damages as compensation. The amounts awarded were relatively trivial.

The Russian judge on the panel, Dmitry Dedov, submitted a dissenting opinion that channeled the arguments of the Russian government, particularly as they were articulated by the constitutional court in rejecting the appeals in these cases.

The government contended that the challenged measures are non-discriminatory, do not impose criminal sanctions for homosexual conduct and do not single out homosexuals for suppression of their expression, but rather focus on socially harmful messages that everybody, whether gay or straight, are prohibited from sending to minors. Dedov contended that the court erred by focusing on a “conflict of rights” rather than on the government’s “legitimate aim” in promoting the morals and health of minors and Russian society.  He contended that what the local governments and the Federal government had done was well within their appropriate role to promote social welfare, and particularly the well-being of vulnerable minors, and that the court was mistaken in treating this as a case about discrimination.

“Needless to say,” he wrote, “sexual identification, as well as sexual orientation, is a very intimate process, albeit influenced by social life and social relations. The international instruments, including the CRC, recognize that children should primarily consult their parents or close members of the family, rather than obtaining information about sex from the applicants’ posters in the street.”  He argued that it was for the government to determine how to educate minors about their social roles, contending that “it is commonly recognized that sex education is a very sensitive area where the dissemination of information should be carried out very carefully.”

The Russian news agency, Tass, quickly reported that the Russian Justice Ministry would appeal the decision and contest the remedy, which totaled about 49,000 euros. The statement from the Ministry reiterated Judge Dedov’s main point, arguing that “the provisions of a number of regional laws banning LGBT propaganda among minors do not contradict international practices and are aimed exclusively at protection of children’s morality and health.”

The full text of the opinion in English is available on the court’s website, as well as a press release summarizing the decision.

Texas Appeals Court Denies Constitutional Challenge to “Online Impersonation” Statute in Manhunt.net Case

Posted on: September 1st, 2016 by Art Leonard No Comments

Who knew? It is potentially a crime in Texas, and apparently several other states, to pose as somebody else on social media sites like Manhunt.net, and this does not violate anybody’s 1st Amendment rights, held a panel of the Texas 5th District Court of Appeals in Ex parte Bradshaw, 2016 Tex. App. LEXIS 9203, 2016 WL 4443714 (Aug. 23, 2016).

According to the opinion by Justice Robert M. Fillmore, Michael Dwain Bradshaw has been charged with violating Texas Penal Code Sec. 33.07(a), titled “Online Impersonation.” The statute provides that a person “commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to (1) create a web page on a commercial social networking site or other Internet website; or (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.” The indictment charges Bradshaw with “intentionally or knowingly using Joel Martin’s name or persona to post or send one or more messages on or though manhunt.net, an Internet website, without obtaining Martin’s consent, and with the intent to harm Martin.”  Justice Fillmore does not get any more specific about the factual allegations against Bradshaw, devoting the entire balance of the opinion to rejecting his constitutional claims.  Bradshaw, represented by attorneys Mark W. Bennett and Toby L. Shook, filed a pretrial application for writ of habeas corpus, seeking to get the indictment quashed on the ground that the statute is facially unconstitutional.  A Dallas County Criminal Court judge denied the petition, and Bradshaw appealed to the 5th District court.

Bradshaw’s first argument was unconstitutional overbreadth, claiming that as worded the statute has the effect of “restricting a substantial amount of protected speech based on the content of the speech.” The state argued that the statute regulates only conduct and unprotected speech, and that any incidental effect on protected speech “is marginal when weighed against the plainly legitimate sweep of the statute.”  Justice Fillmore noted Supreme Court precedents describing the overbreadth doctrine as “strong medicine that is used sparingly and only as a last resort,” reserved for statutes presenting a “realistic” danger of inhibiting constitutionally protected speech.  The level of judicial scrutiny in such cases depends on whether the statute is content-based – that is, coverage triggered by the substance of the speech involved.  The court concluded that the “vast majority” of speech covered by the statute is not protected by the 1st Amendment, and agreed with the state’s argument that the statute is mainly about regulating conduct.

“Impersonation is a nature-of-conduct offense,” wrote Fillmore, which “does not implicate the First Amendment unless the conduct qualifies as ‘expressive conduct’ akin to speech.” Bradshaw contended that “using another’s name or persona to create a webpage, post a message, send a message” is inherently expressive conduct, but the court did not buy this argument, finding that the focus of the statute was on how somebody used another’s name or image: “Any subsequent ‘speech’ related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment,” wrote Fillmore. As such, the level of judicial review of the statute would not be strict scrutiny – reserved for content-based speech restrictions – but rather “intermediate review” requiring the government to show that the statute advances a significant state interest.  Contrary to Bradshaw’s argument, the court found the statute to be content-neutral.  It didn’t matter whose name or persona was being appropriated; it was the fact of appropriation of identity, which the court saw as conduct, that was being punished, and then only if it was being done for purposes specified in the statute.

Looking to the legislative history of the statute, Justice Fillmore found Texas House committee hearings generating a report that the purpose of the statute was “to ‘deter and punish’ individuals who assumed the identity of another and sent false, harassing, or threatening electronic messages to the victim or a third party who was unaware of the perpetrator’s true identity. The committee noted that online harassment had resulted in suicide, threats of physical or mental abuse, and more, but ‘current Texas law does not provide a means of prosecuting some of the most egregious of these acts.  There is nothing in the legislative history,” wrote Fillmore, “that would suggest the legislature was targeting or expressing its disagreement with any particular topic or viewpoint by enacting section 33.07(a).”  And the court concluded that addressing this problem did involve a significant governmental interest of “protecting citizens from crime, fraud, defamation or threats from online impersonation.”

“It also serves a significant First Amendment interest in regulating false and compelled speech on the part of the individual whose identity has been appropriated,” wrote Fillmore, dismissing the “hypotheticals” posed by Bradshaw in his argument as insubstantial “in comparison to the statute’s plainly legitimate sweep over unprotected speech and conduct.”

Bradshaw also attacked the law under the 14th Amendment Due Process Clause as unduly vague, not giving specific enough warning to people about what conduct crossed the line of legality.  In this case, the court found, the legislature had avoided any vagueness problem by including elsewhere in the Texas Penal Code a definition of “harm” generally as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.”  More specifically, Chapter 33 of the Penal Code, which contains the challenged statute, has its own definition of “harm” that includes harm to computer data and “any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.”  Noting that harm is a word in common use, the court also cited to dictionaries, concluding that a “person of ordinary intelligence” would have “fair notice of what the statute prohibits.”

Finally, Bradshaw contended that Texas could not regulate conduct involving the internet because this “unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere,” invoking a legal doctrine called the Dormant Commerce Clause. Fillmore rejected the contention that the Texas law burdens interstate commerce.  “Evenhanded local regulation intended to effectuate a legitimate local public interest that has only incidental effects on interstate commerce will be upheld,” he wrote, “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”  Here, he observed, the court had found that Texas has a significant interest in protecting its citizens.  “It is difficult to envision how interstate commerce is benefitted by the conduct proscribed by section 33.07(a),” wrote Fillmore, “and we believe the burden of the statute on interstate commerce is small.”  Thus, the writ was denied and the prosecution can proceed.

Which leads the reader to speculate about the facts of this case. Did Bradshaw use Martin’s picture or name to cruise on Manhunt.net, to lure people into compromising situations, or to engage in conduct that would damage Martin’s reputation or subject him to liability or prosecution if attributed to him?  If this case goes to trial and produces written opinions or attracts media attention, perhaps we will find out.  If, as is true in the overwhelming majority of criminal prosecutions, Bradshaw accepts a plea bargain offered by the prosecution, we may never find out.

Federal Court Finds No Substantive Due Process Protection for BDSM Sex

Posted on: March 7th, 2016 by Art Leonard No Comments

U.S. District Judge Thomas Selby Ellis, III, has rejected the argument that a consensual BDSM relationship is protected against government regulation by the 14th Amendment.  Ruling in a case brought by a George Mason University student who was expelled after his former girlfriend, an undergraduate at another school called Jane Roe in the opinion, charged him with violations of the student Code of Conduct including BDSM sex, Ellis rejected the claim that the school’s interpretation of its student conduct rules so as to deem improper any BDSM relationship violated the student’s constitutional rights.  Doe v. Rector and Visitors of George Mason University, 2016 WL 7757765, 2016 U.S. Dist. LEXIS 24847 (E.D. Va., Feb. 25, 2016).

The plaintiff, proceeding anonymously as John Doe, was expelled during his sophomore year, effective December 5, 2014, after university administrators overturned a decision by a hearing panel that had found him “not responsible as to each of the four charges against him concerning his ‘involvement in an incident that occurred on or around October 27, 2013,’” which was the specific incident identified in the charges of which he had been notified. Roe appealed the panel decision to administrators who reversed it without giving Doe a fair opportunity to respond to additional allegations that went beyond the subjects addressed before the hearing panel.

Doe had been charged with four violations of the student Code of Conduct based on Roe’s allegations by Jane Roe. She claimed that at times he had continued in the BDSM activities after she used the “safe word” that they had agreed upon as a signal that he should desist, and that after she broke off their relationship, he continued to try to communicate with her, at one point sending a text message that if she did not respond to him he would shoot himself.  She communicated with GMU administrators and campus police, who were already monitoring Doe because of various incidents during his freshman year that had brought him to their attention as a possible disciplinary and safety problem.  The campus police recorded a telephone conversation between Doe and Roe in which he seemed to admit that sometimes he continued despite her use of the safe word because he thought she could “handle it.”  However, at the hearing, when a panelist asked whether there were “instances” where the “red word” was used and Doe did not stop, he said that in “very rare” and “unusual circumstances” he would be “set in the routine of things” and Roe would need to say “red” again, at which point he would “stop immediately.”  He said that when hearing the safe word he “would not just blatantly ignore and then continue” with intercourse. Although the October 27 incident was the only one specifically reference in the formal charge he received, questions were asked at the hearing going beyond that one incident, and it later developed that when Roe appealed the administrators considering her appeal had ex parte communication with Roe, probing beyond the October 27 incident without giving Doe a chance to respond to her allegations.

Doe was charged with violations of the following provisions: “(1) infliction of physical harm to any person(s) including self; (2) Deliberate touching or penetration of another person without consent; (3) Conduct of a sexual nature; and (4) Communication that may cause injury, distress, or emotional or physical discomfort.” He asserted a variety of constitutional claims, including that his expulsion was a denial of liberty without procedural due process, that the speech code provision was unconstitutionally broad, and that application of the Code to consensual BDSM activity violated his substantive due process rights under Lawrence v. Texas, the Supreme Court’s 2003 ruling striking down criminal penalties for consensual gay sex using language that could, depending how it is interpreted, broadly protect the rights of adults to engage in consensual sexual activity.

Judge Ellis found that the Doe’s procedural due process rights had been violated, entitling him to reinstatement as a student at GMU, although leaving to further proceedings the question whether GMU could again bring disciplinary proceedings based on the same incidents. The judge identified numerous faults with the procedures followed by GMU, including a failure to comply with the University’s own rules governing appeals from panel decisions and the appearance of bias on the part of the administrators who ruled on Roe’s appeal. Alternatively, Judge Ellis agreed with Doe that imposing discipline because of his text message to Roe threatening suicide violated his First  Amendment free speech rights, because the message did not communicate a “true threat” to harm her or cause any disruption to GMU’s educational mission.  Ellis pointed out that courts have been striking down campus speech codes that impose sanctions for speech that others find upsetting or uncomfortable on grounds of freedom of speech, and cited this ground as an alternative basis to overturn Doe’s expulsion.

Ellis had previously granted a motion to dismiss Doe’s argument about substantive due process, but Doe filed a motion to reconsider that ruling and Ellis decided his reasoning deserved further explanation in this opinion. Doe argued that under Lawrence v. Texas the government (including a state university) could not “criminalize intimate sexual conduct between consenting adults.”  Doe argued that GMU’s Code constituted a “legislative enactment that treats BDSM relationships as sexual misconduct per se.”  Thus, he argued, “the appropriate analytical framework was the strict scrutiny analysis employed where a legislative enactment infringes on a constitutionally protected liberty interest.”  Ellis rejected this argument.

He found that “the Supreme Court’s cases recognizing judicially-enforceable fundamental liberty interests” ran along two lines of precedent, one focused on history and tradition and the other on animus. Looking at the historical approach, he found that there is “no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty,” so that approach would not find BDSM sex to be a fundamental right.  “Perhaps in recognition of the futility of his argument” under this historical approach, wrote Ellis, Doe “bases his fundamental liberty interest argument on Lawrence, in which the Supreme Court heavily emphasized a tradition of animus against gay people underlying the criminal sodomy statute at issue.

Ellis placed the Supreme Court’s marriage equality ruling, Obergefell, in the same category as Lawrence, observing, “Obergefell highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group.  Lawrence is not to the contrary.  There, the Supreme Court reasoned that a statute criminalizing homosexual sodomy violated a judicially enforceable implied fundamental liberty interest in sexual intimacy because of the history of animus toward homosexuals.  Indeed, the Supreme Court has since noted that Lawrence ‘acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State’ and ‘therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians.’”  In Lawrence and Obergefell, the Court said that history and tradition could “guide” and “discipline” the Court’s inquiry but “not set its outer boundaries.”  Instead, as Ellis saw it, there was a balancing of “impermissible animus” on one hand and “whether the government’s interest in limiting some liberty is a justifiable use of state power or an arbitrary use of that power” on the other hand.

Ellis asserted that the conclusion that “there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant and important to the analysis is the absence of a history of impermissible animus as the basis for the restriction at issue here.  Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity,” he wrote.  Thus, “a legislative restriction on BDSM activity is justifiable by reference to the state’s interest in the protection of vulnerable persons, i.e., sexual partners placed in situations with an elevated risk of physical harm.  Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.”

Judge Ellis was appointed to the federal bench in 1987 by President Ronald Reagan. He took senior status in 2007 but continues to hear cases in the federal trial courts in Virginia and has occasionally participated as a substitute judge on panels of the 4th Circuit Court of Appeals.

Doe is represented by Allison Marie Lansell, Justin Emerson Dillon, and Adam Ross Zurbriggen of Kaiser LeGrand & Dillon PLLC, Washington D.C.   The University’s Legal Department provided the defense through attorneys David Garnett Drummey and Brian Eugene Walther.

Discharged Atlanta Fire Chief Strikes Back in Federal Lawsuit

Posted on: December 24th, 2015 by Art Leonard No Comments

Kelvin J. Cochran, who was discharged as Chief of the Atlanta, Georgia, Fire and Rescue Department (AFRD) after he self-published a book asserting negative views about homosexuality and same-sex marriage based on his religious beliefs, has struck back at the City and Mayor Kasim Reed with a lawsuit claiming a violation of his constitutional rights.  On December 16, U.S. District Judge Leigh Martin May issued a ruling dismissing some of Cochran’s claims, but allowing others to go forward.  Cochran v. City of Atlanta, 2015 WL 9244523 (N.D. Ga., Dec. 16, 2015).

Cochran became the Atlanta Fire Chief in 2008.  He left for ten months in 2009 to serve as Administrator of the U.S. Fire Administration in Washington, D.C., but returned and continued in the Atlanta position until he was suspended as a result of the controversy surrounding his book and ultimately discharged on January 6, 2015.

Cochran, self-described as a devout evangelical Christian and an active member of Atlanta’s Elizabeth Baptist Church, wrote and self-published a book titled “Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation.”  The book grew out of a men’s Bible study group at his church, and was intended as a guide to men to help them “fulfill God’s purpose for their lives.”  One of those purposes, according to Cochran’s book, is to avoid any sexual activity outside of a traditional heterosexual marriage, expressing the view that homosexual activity and same-sex marriage are immoral and inconsistent with God’s plan.

Cochran consulted the City’s Ethics Officer about whether a city official could write a “non-work-related, faith-based book,” and was told he could do that “so long as the subject matter of the book was not the city government or fire department,” but he did not obtain a written ruling.  He later asked the Ethic Officer if he could identify himself in the book as Atlanta Fire Chief, and she responded in the affirmative.  Cochran placed the book for sale on Amazon.com, and distributed free copies to various individuals, including Mayor Reed, some members of the city council, and various Fire Department employees whom he considered to be Christians (some of whom knew he was writing the book and had requested copies).

A Fire Department employee who saw the book and objected to its statements about sexual morality contacted City Councilmember Alex Wan to complain, which led Wan to initiate discussions at the City’s “upper management” level.  This led to a meeting of top City officials with Mayor Reed.  On November 24, 2014, Cochran received a letter informing him that he was suspended without pay for 30 days while the City determined what to do.  Among other things, the City cited an ordinance prohibiting city officials from engaging in outside employment for pay without written permission from the Ethics office.  At the same time, Mayor Reed went public about disagreeing with Cochran’s views expressed in the book, stating “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback regarding the LGBT community” and disassociating his administration from those views.  Councilmember Wan released a statement to the local newspaper that “I respect each individual’s right to have their own thoughts, beliefs and opinions, but when you’re a city employee, and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.”  Cochran’s suspension and statements by Reed, Wan and other city officials led to extensive media coverage.  On January 6, 2015, Cochran was informed of his discharge.

Atlanta has had local legislation banning sexual orientation discrimination for many years, and has long provided benefits for same-sex partners of city employees.  At the time this controversy arose late in 2014, a federal district court had ruled against the constitutionality of Georgia’s ban on same-sex marriage, but the matter was still pending on appeal in the courts.  Atlanta government leaders had openly supported the litigation for marriage equality.  Cochran’s views expressed in the book were apparently out of synch with the views of the City’s elected leadership.  However, Cochran claimed in his federal complaint that he has never been accused of discriminating as Fire Chief on the basis of sexual orientation.

Cochran’s lawsuit poses a classic and recurring policy question: to what extent can a state or local government require public officials to refrain from publicizing their views on controversial public issues when those views conflict with official policies as articulated by politically-accountable officials?  The U.S. Supreme Court has issued a series of important decisions since first addressing this issue in 1968 in Pickering v. Board of Education.  That case involved a public high school teacher who was discharged after publishing a letter in a local newspaper that was critical of the board of education’s budget proposals (which had been twice rejected by local voters).  The Court held that public employees are protected by First Amendment free speech rights when expressing views on matters of public concern when they are speaking in their capacity as private citizens, but such protection is not absolute: the court must conduct a balancing test weighing the employee’s free speech rights against the employer’s legitimate concerns about being able to carry out governmental functions.  Speech that results in disruption of those functions may lose its constitutional protection.  Subsequent rulings have clarified that when a public employee is speaking in an official capacity, he is speaking for the government and can be disciplined or discharged when his speech contradicts government policy.

Cochran filed a nine-count complaint against the city and Mayor Reed, raising various claims under the 1st and 14th Amendments.  Although Judge May dismissed some of those claims, and ultimately found that Mayor Reed enjoyed qualified immunity from personal liability to Cochran, she concluded that his complaint alleged facts sufficient to maintain several of his 1st Amendment claims as well as one of his 14th Amendment Due Process claims.

Cochran’s complaint leads off with a claim that he was fired in retaliation for constitutionally protected speech.  Judge May determined that Cochran’s speech satisfied the requirement that it be on a matter of public concern and that he was speaking as a private citizen (even though his book’s “About the Author” section identifies him as Atlanta’s Fire Chief), making his claim subject to the Supreme Court’s Pickering balancing test.  The City argued that the AFRD has a “need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers,” and thus that Cochran’s “interest in publishing and distributing a book ‘containing moral judgment about certain groups of people that caused at least one AFRD member enough concern to complaint to a City Councilmember'” could not outweigh the City’s interests in securing discipline and efficiency.

However, Judge May pointed out that on a motion to dismiss she is to evaluate the complaint based solely on the plaintiff’s allegations, and Cochran had alleged that his book did not threaten the City’s ability to administer public services and was not likely to do so.  Cochran claimed that the book did not interfere with AFRD internal operations, and that he had not told any AFRD employee that complying with his teachings or even reading his book “was in any way relevant to their status or advancement” within the Department.  Thus, Judge May could not find at this stage in the case as a matter of law “that Defendants’ interests outweigh Plaintiff’s First Amendment freedom of speech interests.  However,” she continued, “the factual development of this case may warrant a different conclusion.”

Cochran’s second count claims unconstitutional viewpoint discrimination, focusing particularly on a section of the City Code that requires department heads to obtain prior written approval from the city’s Board of Ethics before “engaging in the provision of services for private interests for remuneration,” which he had not done.  Cochran protested the self-publication of a book did not come within this policy. The City claimed he had no standing to challenge this provision since he had never applied for written permission, but Judge May disagreed, rejecting the City’s motion to dismiss this count on the basis of standing.

Cochran’s third count alleges violation of his religious liberty rights, claiming he was terminated because he expressed his religiously-based viewpoint.  The City’s response was that he failed to allege that his religion compelled him to publish his views while serving as Fire Chief without obtaining prior written approval or to distribute the book to various city employees.  Judge May ruled that such allegations were not necessary to state a religious liberty claim, and that Cochran’s allegations “raise a plausible inference that Plaintiff sincerely held the religious beliefs that he contends were the reason for his firing,” so this claim would not be dismissed.  Similarly, Judge May found that Cochran adequately alleged facts to support his fourth claim, that the city’s action violated his 1st Amendment right to freedom of association “by terminating him for expressing religious beliefs in association with his church.”  However, May found insufficient Cochran’s allegations to support his claim of a violation of the 1st Amendment Establishment Clause, stating that at the hearing on the motion to dismiss “it became clear that although the Complaint contains an Establishment Clause claim, the exact contours of that claim. . . are unclear,” and that it appeared to be duplicative of other claims.  Although May dismissed this claim, she granted leave to Cochran to file an amended claim appropriately raising Establishment Clause issues.

Turning to Cochran’s Equal Protection Claim under the 14th Amendment, May found that Cochran had failed to allege sufficient facts to sustain this claim.  Most significantly, he had failed to identify a “comparator” in order to establish discrimination.  A “comparator” is somebody similarly situated to the Plaintiff who had articulated the opposite point of view without incurring adverse action from the City.  Cochran pointed to Mayor Reed, who had publicly articulated opposition to Cochran’s views, but the judge pointed out that Reed, as the elected chief executive of the city, was not similarly situated to Cochran, an appointed department head.  “As the Mayor,” wrote Judge May, “Reed is Plaintiff’s superior. . .  As the City’s ultimate decision-maker, Reed could not be similarly situated to Plaintiff, who is subject to Reed’s decision-making power.”  She also pointed out that Reed had not “ever tried to publish a book on morality that was approved by the City or even that Reed is from a different religious group from Plaintiff.  At bottom, the Court finds that Reed is too dissimilar to serve as a similarly situated comparator for numerous reasons.”  It was not sufficient for Cochran to allege that “numerous City employees” who were similarly situated to him were treated differently in this regard.  It appears that he is the only appointed City department head who had published a work of this kind.

Judge May dismissed Cochran’s claim that the City’s policy about outside work by city officials that was cited in support of his discharge was unduly vague, pointing out that prior similarly challenges to the policy had been rejected by the 11th Circuit Court of Appeals, which is binding on Georgia federal courts.  She also found that the public comments by Mayor Reed in connection with this controversy were not sufficiently personally “stigmatizing” of Cochran to sustain a “liberty interest” claim under the Due Process Clause.  However, she refused to dismiss a procedural due process claim, finding that the ordinances cited by the City in its briefs “do not establish that Plaintiff lacks a property interest in his employment.”  Under the 14th Amendment, the Courts have held that a public employee with a property interest in his job may not be deprived of that job in the absence of fair procedures, which Cochran claims he was not accorded in this case, where the decision to fire him was made unilaterally by the mayor.

As to personal liability by Mayor Reed, the ultimate decision-maker on Cochran’s discharge, Judge May found that it would not necessarily be clear to the Mayor that his actions were unconstitutional while exercising the discretionary function to discharge his Fire Chief, since the ultimate determination of that will rest on the court’s application of the Pickering balancing test.  Depending how that weighing turns out, the City may be held liable, but a municipal official in the position of the Mayor exercising a discretionary function of his office would not unless the outcome was clearly established as a matter of law.  The courts have developed this qualified immunity doctrine to avoid stifling the ability of public officials to exercise discretionary functions in situations where there is not a definite constitutional ban in place.

Ultimately, the question confronting Judge May is whether the Atlanta city administration is required to keep in office an appointed department head who has published views that are out of synch with the City’s policies.  If Cochran were a rank and file employee, he might well win some of his claims.  But as a department head with supervisory authority over a major public safety agency, he will confront significant difficulty in arguing that the elected officials responsible to the voters are constitutionally required to keep him in office, as Judge May intimated in ruling on his first free speech claim.

7th Circuit Rules Chicago Sheriff Violated First Amendment Rights of Backpage.com by Pressuring Credit Card Companies

Posted on: December 1st, 2015 by Art Leonard No Comments

 Cook County, Illinois, Sheriff Thomas J. Dart violated the 1st Amendment rights of Backpage.com when he sent a letter to the executives of Mastercard and Visa pressuring them to refrain from processing credit card transactions between Backpage and its advertisers, ruled the 7th Circuit on November 30 in a sweeping free speech opinion by Circuit Judge Richard Posner.  Backpage.com, LLC v. Dart, 2015 U.S. App. LEXIS 20728, 2015 WL 7717221.

Wrote Posner, “The Sheriff of Cook County, Tom Dart, has embarked on a campaign intended to crush Backpage’s adult section – crush Backpage period, it seems – by demanding that firms such as Visa and Mastercard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution. Visa and Mastercard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal services.”

Dart’s ire is specifically aimed at the “adult” section of Backpage.com, which is “subdivided into escorts, body rubs, strippers and strip clubs, dom[ination] and fetish, ts (transsexual escorts), male escorts, phone [sex], and adult jobs (jobs related to services offered in other adult categories, whether or not the jobs are sexual – not every employee of a brothel is a sex worker).”

District Judge John J. Tharp, Jr., had denied Backpage’s motion for a preliminary injunction against Sheriff Dart, reasoning that he was just exercising his own free speech rights by writing to Visa and Mastercard to express his disgust with the sexually-oriented advertising and alluding to the credit card companies’ potential liability under a federal money-laundering statute.

To Posner and the other members of the panel (Circuit Judges Ripple and Sykes), Dart was doing more than just expressing a personal opinion. “While he has a First Amendment right to express his views about Backpage,” wrote Posner, “a public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment,” citing American Family Association, Inc. v. San Francisco, 277 F.3d 1114 (9th Circ. 2002).

The 7th Circuit panel saw through Dart’s carefully-worded letter to perceive the implicit threat of a boycott and possible prosecution.  Posner pointed out that if Backpage was engaging in any unlawful activity, Dart could prosecute the organization directly.  Dart had attempted to do that with Craigslist, but was rebuffed by the district court in Dart v. Craigslist, Inc., 665 F.Supp. 2d 961 (N.D. Ill. 2009).  “Craigslist, perhaps anticipating Dart’s campaign against Backpage, shut down its adult section the following year,” Posner observed, “though adult ads can be found elsewhere on its website.  The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him.  Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights.  But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website – and no one is claiming that.”

“The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands,” Posner asserted. He picked apart Dart’s letter in detail, concluding that it was not a mere expression of Dart’s opinion, but rather was “designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up.”  The credit card companies certainly felt threatened; shortly after receiving the letter, both of them cut off Backpage and informed Dart of their actions, which he hailed at a press conference, with a press release claiming credit for their actions.  Backpage was forced to make its ads free, forfeiting a major source of revenue, which led to this lawsuit.

Posner pointed out that a letter like Dart’s emanating from a private citizen “would be more likely to be discarded or filed away than to be acted on,” noting that the companies had received numerous such letters from private citizens in the past objecting to their facilitating operation of websites such as Backpage and Craigslist.

The court concluded that the credit card companies “were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage – lest the ads that the sheriff doesn’t like simply migrate to other sections of the website), when it is unclear that Backpage is engaged in illegal activity, and if it is not then the credit card companies cannot be accomplices and should not be threatened by the sheriff and his staff.”

Posner rejected Dart’s argument that most of the sexually-related advertising on Backpage is illegal. “Fetishism?  Phone sex? Performances by striptease artists?  (Vulgar is not violent.)  One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’ – a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually.  It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution,” wrote Posner.  What is delightful about that paragraph, actually, is Posner’s citation to several on-line reference sources spelling out the activities of professional dominatrices. Indeed, the entire opinion is a delight to read, as Posner’s indignation with the sheriff’s abuse of power shines through the writing.  The opinion is available free on the 7th Circuit’s website.

Backpage.com is represented by James C. Grant of Davis Wright Tremaine (Seattle) and Robert Corn-Revere and Ronald G. London of the same firm’s D.C. office. The court received amicus briefs from Ilya Shapiro on behalf of the Cato Institute, Reason Foundation, Dkt Liberty Project, and Wayne Giampietro on behalf of the Center for Democracy & Technology, the Electronic Frontier Foundation, and the Association of Alternative Newmedia.

State Court Affirms Model’s Right to Sue for Unauthorized Use of Her Photo in an AIDS Public Service Advertisement

Posted on: March 25th, 2014 by Art Leonard No Comments

New York Supreme Court Justice Anil C. Singh rejected a motion by an “image distributor” to dismiss a model’s lawsuit seeking compensatory and punitive damages for the unauthorized publication of her picture in a public service advertisement placed in print media by the New York State Division of Human Rights to inform people living with HIV about legal protection from discrimination. The March 6 ruling was published in The New York Law Journal on March 24.

The defendant, Getty Images (US) Inc., “is in the business of licensing stock photographs on the Internet,” according to Justice Singh’s opinion, summarizing the allegations in Avril Nolan’s complaint. Getty acquired Nolan’s image from a photographer named Jena Cumbo. Cumbo had not obtained a written release from Nolan authorizing the use or sale of her picture, but nonetheless sold it to Getty, which then licensed it to the New York State Division of Human Rights, which used it to illustrate an advertisement placed in newspapers with the caption: “I am positive (+) and I have rights” and “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights.”

Nolan is not HIV-positive, and alleges that the appearance of this advertisement has caused her emotional distress and actual harm, as it has led people to think that she is infected with HIV. Her lawsuit relies on the New York Civil Rights Law, Sections 50 and 51, which makes it unlawful for anybody to use a person’s image for trade or advertising purposes without getting their written permission, and authorizes individuals to sue for damages.

Moving to dismiss the case, Getty argued that “displaying and licensing a photograph are, as a matter of law, not advertising or trade uses” under the civil rights law, and to impose liability in this case would violate Getty’s First Amendment rights. Getty argues that it is merely licensing the photograph, and that it is the “end-user” of the photograph, if anybody, that would be liable to Nolan for its public display in this context. Getty argued that the law did not require it to “investigate the existence or validity of every image release on its database because such duty would be inconsistent with the First Amendment.” Getty also emphasized that Nolan is a model and willingly posed for a commercial photograph, so could hardly argue that the subsequent use of the photograph violated her right of privacy.

“Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiff’s likeness created a false impression about plaintiff,” wrote Justice Singh. Furthermore, he rejected Getty’s argument that the New York State Constitution affords “heightened free speech protections to commercial speech.” Actually, quite to the contrary, commercial speech generally enjoys less protection than political or artistic speech, and the New York courts have repeatedly rejected constitutional challenges to the Civil Rights Law, which authorizes individuals to pursue damages for unauthorized use of their photographs.

“Written consent is explicitly required by the statute,” Singh pointed out. Furthermore, as long as Nolan’s photograph was available for viewing as part of Getty’s on-line catalogue, “the plaintiff’s assertion of a website’s accessibility sufficiently meets the required statutory element of use within New York State.”

Singh also noted that in deciding a motion to dismiss, he was assuming the truth of Nolan’s factual assertions. In order to win the damages she is claiming, Nolan would have to prove at trial all the requisite elements of the claim.

The Law Journal interviewed Nolan’s attorney, Erin Lloyd of Lloyd Patel in Manhattan, who said she first learned about the ad through a message posted on her Facebook page and “became instantly upset and apprehensive that her relatives, potential romantic partners, clients, as well as bosses and supervisors might have seen the advertisement.” According to Lloyd, Nolan was “humiliated and embarrassed” when forced to “confess to her bosses that her image had been used in an advertisement for HIV services, implying that she was infected with HIV.” The lawsuit seeks $450,000 in damages, and claims that Getty has a legal responsibility to get permission from models before exhibiting or licensing their photos.

For its part, Getty says that Nolan’s picture is one of millions of images collected from photographers and generally available on its website. If it were to be held liable in any case where a photographer did not obtain a written model release, its business plan would effectively fall apart. Getty’s law firm, Wolff and Sholder, argued in the motion to dismiss that “displaying and licensing a photograph is not the same as ‘advertising’ as contemplated in the Civil Rights Law,” according to the Law Journal’s report.

New York courts have held that the Civil Rights Law provisions do not apply to unauthorized use of a photograph to illustrate a news story, and have interpreted this judge-made exception to the statute rather broadly. As long as a photograph has some sort of thematic relationship to a newsworthy story, the person depicted in the photograph has no claim to damages. Thus, if Ms. Nolan’s photograph had been used in a news story about HIV-related discrimination, she would have no claim under this statute, even if the placement or caption might lead readers to conclude that she was HIV-positive. But an advertisement — even a public service advertisement — is different.

In this case, Nolan is seeking to hold Getty, the distributor of the image, responsible for its eventual use in a commercial context, even if, as Getty argued, it may have been unaware of that potential use when it licensed the photograph. Indeed, it seems possible, even likely, that an advertising agency retained by the Division of Human Rights to devise this advertisement licensed the photo from Getty’s on-line catalogue through an automated process in which no human being at Getty participated. The court may ultimately confront the question whether it is appropriate to apply the Civil Rights Law to anybody and everybody in a chain of transactions if a photograph ends up being used in an actionable commercial context when the original creator of the image – the photographer – failed to get a broadly-worded written release from the model. Requiring photographers to submit such releases with every photograph they submit to Getty may become a requirement of the business to avoid liability if a photograph is used commercially within New York.

The Colorado Wedding Cake Case

Posted on: December 8th, 2013 by Art Leonard No Comments

A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.

Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013.  Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home.  Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.”  According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'”  Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings.  “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”  Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident.  The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.

Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful.  The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights.  When Phillips rejected that ruling, the case was referred for trial before an administrative judge.   As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.

Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.”  He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry.  “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.  Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.  Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”

Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion.  His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys.  Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights.  Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds.  In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.

In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute.  He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding.  He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.

Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination.  “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote.  “Only same-sex couples engage in same-sex weddings.  Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.”  Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.

On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'”  Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech.  Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it.  “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”  In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker.  Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”

Finally, Spencer rejected Phillips’ free exercise of religion argument.  He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct.  “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief.  “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate.   The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest.  The Colorado public accommodations law meets that test.

As an administrative judge, Spencer does not have authority to impose fines or penalties.  Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission.  If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.

The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer.  Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people.   Given ADF’s participation, it is likely this ruling will be appealed.

The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies.  In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony.  The Supreme Court has received a petition to review the New Mexico case.

Supreme Court Refuses to Review Some Pending LGBT-Related Cases: Virginia Sodomy Law; University Discharge of Homophobic Administrator

Posted on: October 9th, 2013 by Art Leonard No Comments

 

On October 7, the first day of its October 2013 Term, the Supreme Court announced that it had denied petitions for certiorari in two pending LGBT-related cases, MacDonald v. Moose from the 4th Circuit and Dixon v. University of Toledo from the 6th Circuit.

In MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied sub nom Moose v. MacDonald, No. 12-1490, 2013 WL 3211338, the 4th Circuit held that Virginia’s sodomy law was facially unconstitutional in light of the Supreme Court’s 2003 decision in Lawrence v. Texas, which had invalidated the Texas Homosexual Conduct Act.  Unlike the Texas statute, which only applied to same-sex conduct, the Virginia sodomy law broadly applies to all acts of anal or oral sex, regardless of the genders or ages of the participants or the location of the activity.  In this case, the state prosecuted and convicted William MacDonald for soliciting a young woman to engage in oral sex with him in a parked car.

The solicitation statute applies only to criminal conduct, and thus incorporated by reference the sodomy law.  MacDonald argued in defense that his conduct was protected under Lawrence, but the Virginia courts took the position that because the woman was only 17, and thus a minor, his conduct was not protected because Lawrence did not protect sexual conduct involving minors.  After his conviction was upheld by the Virginia Supreme Court, he filed a federal habeas corpus action challenging the constitutionality of his conviction.  The district court denied his petition, but a 4th Circuit panel voted 2-1 to reverse, finding that the broad Virginia sodomy law was facially unconstitutional under Lawrence.  Attorney General (and now Republican candidate for governor) Ken Cuccinelli petitioned for certiorari, arguing that Lawrence was an “as applied” decision, and that the Virginia sodomy law should be construed to apply only to conduct not protected under Lawrence, including the conduct of Mr. MacDonald.  His petition was denied without comment or recorded dissent.  It will be interesting to see whether the Virginia legislature, which has stubbornly refused to amend or repeal the sodomy law to bring it into compliance with Lawrence, will take any action now that this case is over.

In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), petition for rehearing en banc denied (2013), cert. denied, No. 12-1402, 2013 WL 2357630, the 6th Circuit held that the University did not violate the 1st Amendment free speech rights of Crystal Dixon, an administrator who was discharged after she published a letter to the editor in a community newspaper articulating views about homosexuality that the University administration considered to be unacceptable for a person in her position.  The district court and court of appeals rejected her 1st Amendment claim, having found that she was speaking as an employee of the public university, and thus her speech was not protected by the 1st Amendment and the University could discharge her if it found her statements to be inconsistent with its policies concerning sexual orientation.  Her petition was denied without comment or recorded dissent.  The decisions below seem consistent with the Court’s precedents on public employee speech under the 1st Amendment.   When an employee is speaking in her capacity as an employee, the public employer has a right to determine the content of her speech as representing the public employer, and to discharge the employee for disseminating a message contrary to the employer’s policies.