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Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

Posted on: November 22nd, 2020 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.

Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

Posted on: April 3rd, 2019 by Art Leonard No Comments

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).

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.

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.

Shirvell Strikes Out in Court of Appeals of Michigan

Posted on: January 14th, 2015 by Art Leonard No Comments

Andrew Shirvell, the former assistant attorney general from Michigan who was discharged for his conduct in reaction to the election of an openly gay student body president at his alma mater, the University of Michigan, suffered a double loss in the Court of Appeals of Michigan on January 8.  The Court upheld the denial of his discharge grievance, finding his conduct unprotected by the First Amendment, and also ruled that he was not eligible for unemployment benefits while he was looking for a new job after the discharge.

Shirvell began working as an assistant attorney general in 2007.  In 2010, Chris Armstrong was elected president of the University of Michigan Student Assembly, the first openly gay person to hold that position.  Shirvell was apparently outraged at this development, and he set up a public blog called “Chris Armstrong Watch,” which was dedicated to maligning Armstrong for his “radical homosexual agenda.”  Shirvell called Armstrong a “radical homosexual activist, racist, elitist, and a liar,” according to the opinion for the Court of Appeals by Judge Stephen Borello.  One posting “contained a rainbow flag with a swastika posted next to a photograph of Armstrong’s face with the word ‘resign’ nearby.”  Shirvell also called Armstrong a “privileged pervert,” and made various accusations about Armstrong’s alleged agenda as student body president, including a gender-neutral student housing policy “under which, according to Shirvell, ‘cross-dressing students will not have to share a dorm room with a member of the same sex,'” that he contended would “undoubtedly lead to a massive increase in rapes.”

Amidst many other accusations, Shirvell accused Armstrong of hosting a “gay orgy” and accused him of sexual promiscuity, commented about his “deranged character” and suggested that Armstrong was trying to facilitate “homosexual shenanigans” by gay residents of the university’s dormitories.  Also, during a television interview sparked by publicity stemming from his activities, Shirvell “did not deny that on one occasion he referred to Armstrong as ‘Satan’s representative’ on the student assembly” on a Facebook page.  Shirvell also “appeared outside Armstrong’s residence and at events where Armstrong was present and held protest signs.”

Shirvell’s activities and accusations brought him notoriety, leading to “intense media scrutiny” including appearances on CNN’s Anderson Cooper AC360 program and Comedy Central’s The Daily Show.  During these TV appearances, Shirvell said he was speaking as a private citizen and U Mich alumnus, not in his official capacity as an assistant attorney general, but pressure mounted on then-Attorney General Michael Cox (a conservative Republican and no supporter of gay rights) to do something about Shirvell.  Cox sent an email to CNN and later did an interview with Cooper, in which he explained that Shirvell had a right to express his personal views protected by the First Amendment.  But then the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell’s behavior and questioning its effect on the ability of the Attorney General’s office to carry out its mission.  In response to Armstrong’s complaints to university officials about Shirvell’s conduct on the campus, the university barred Shirvell from campus briefly.  The Attorney General’s office began to receive negative e-mails and telephone calls about Shirvell.

Finally, Cox had enough.  After a disciplinary hearing, he terminated Shirvell for “conduct unbecoming a state employee,” explaining that Shirvell’s conduct “could reasonably be construed to be an invasion of privacy, slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General.”

Shirvell did not take this lying down.  Applying for unemployment benefits while he looked for new work, he also filed a grievance with the state’s civil service commission.  The Commission found that Cox had just cause to terminate Shirvell, and the circuit court agreed.  The Unemployment Insurance Agency found that he was not entitled to benefits due to the circumstances of his discharge.  Shirvell appealed both rulings.  At first he had some luck on the unemployment benefits, as a different circuit court held that Shirvell’s activities were protected by the First Amendment as free speech so he should receive the benefits, but ultimately both cases came before the Court of Appeals, which ruled against him on both counts.

The court focused first on the First Amendment issue, finding that Shirvell was speaking as a private citizen on issues that might be considered of public concern, and thus his speech might enjoy some protection.  However, the Supreme Court has ruled that even in such circumstances, a public employee may lose First Amendment protection if his speech “impaired discipline by superiors, detrimentally impacted close working relationships, undermined a legitimate goal or mission of the employer, impeded the performance of the speaker’s duties, and impaired harmony among co-workers.”

“In the present case,” wrote Judge Borello, “the Department introduced evidence to show that its interests in the effective provision of governmental services outweighed Shirvell’s speech interests,” showing that “Shirvell’s speech interfered with the Department’s internal operations and adversely affected the efficient provision of governmental services.  The Department received numerous e-mails, telephone calls and letters in response to Shirvell’s televised interviews.  Department staff members were questioned about Shirvell during unrelated proceedings and the Michigan Civil Rights Commission and the Ann Arbor City Council issued resolutions condemning Shirvell’s behavior and questioning the Department’s ability to fulfill its mission.  It was clear in both proceedings [the unemployment benefits proceeding and the grievance proceeding] that Shirvell’s speech created a media firestorm which in turn created a public-relations crisis.  The Department dedicated resources to respond to media inquiries about Shirvell and ultimately Cox found it necessary to take time to appear for a nationally-televised interview to defend the Department’s response to Shirvell’s conduct.”  Ultimately, the court found that the complaints “negatively impacted the Department’s internal operations.”

The court found that the notoriety generated by the situation could impede the Department’s ability to recruit “the most qualified employment candidates,” and that Shirvell’s speech “had, or was reasonably likely to have, a detrimental impact on close working relationships and harmony among co-workers within the office.”

In other words, while public employees do not automatically forfeit their right to speak as citizens on controversial matters, a public employer is not required to tolerate the situation if the employee’s speech and related activities makes them a detriment to the office, and the evidence here showed that Shirvell had crossed that line.  Thus, the court found that the Department had met the burden of showing that the adverse impact of Shirvell’s conduct on the department outweighed any First Amendment protection that his speech might otherwise enjoy.

The court found that there was just cause for Cox to fire Shirvell.  The evidence supported the conclusion that his conduct was “unbecoming a state employee in that his speech and speech-related conduct undermined his professional character and reputation, adversely affected the Department’s internal operations, and had a tendency to destroy public respect for the Department and confidence in the Department’s ability to provide services.”  The court pointed out that “as a legal representative of the state of Michigan, the conduct of an assistant attorney general should be held to a higher standard than the average private citizen.”

As to unemployment benefits, the state’s law disqualifies somebody who was “discharged for misconduct connected with the individual’s work.”  Shirvell was arguing that the conduct in question was private and unofficial, but Cox’s internal investigation showed that he was using Department computer equipment for some of the anti-Armstrong activities.  Furthermore, past decisions of the court supported a finding that even off-duty conduct can be disqualifying because it may undermine the ability of a public servant to fulfill his functions in an official capacity.  “When viewed in totality,” wrote Borello, “Shirvell’s behavior evinced a willful disregard of the Department’s interests and he disregarded standards of behavior that the Department had a right to expect of him.”

The court emphasized that an assistant attorney general is “in a position of public trust,” a representative of the state appointed by an elected, politically accountable official, the attorney general. “As an elected official,” wrote Borello, “the attorney general serves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexual orientation.  Thus, the Department had a real and substantial interest in maintaining neutrality and conducting its operations in a non-biased manner; the public actions of its employees, therefore, were critical in protecting this interest.”  The court found that “Shirvell’s public ‘campaign’ against Armstrong undermined” the Department’s interests by casting “a cloud over both his and the Department’s ability to maintain the public trust and severely tarnished the Department’s reputation.”

Apart from these findings, the court found that Shirvell “received a written reprimand for failing to follow the Department’s media contact policy,” and had suffered a brief suspension without pay “after a heated argument with his supervisor involving inappropriate language and threats.  Viewing the recording in its totality,” wrote Borello, “it is clear that there was substantial and compelling evidence” to support the ruling by the unemployment benefits agency, so the circuit court should not have overturned its denial of benefits.

The court affirmed the grievance ruling and reversed the unemployment benefits ruling.  Judges Christopher M. Murray and Peter D. O’Connell signed Judge Borello’s opinion for a unanimous result.

There is a certain irony in this case, inasmuch as Attorney General Cox was a staunch defender of the state’s ban on same-sex marriage, the state’s appeal of a marriage equality ruling to the 6th Circuit resulted in a reversal of the federal district court’s marriage equality decision, and the state legislature has repeatedly refused to enact a ban on sexual orientation discrimination.  But Shirvell’s conduct went too far even for a state government that is not particularly gay-friendly, and he ultimately paid the price through loss of his job and benefits.