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Florida Federal Judge Refuses to Enjoin Anti-Conversion Therapy Ordinances

Posted on: February 14th, 2019 by Art Leonard No Comments

On February 13, U.S. District Judge Robin L. Rosenberg denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts” (SOCE, alsocommonly referred to as “conversion therapy”) to minors.  The refusal of a preliminary injunction extends as well to a similar ordinance enacted by the city of Boca Raton, which is in Palm Beach County.  Judge Rosenberg concluded that the plaintiffs failed to show that they were likely to prevail on their argument that the measures violate their First Amendment free speech rights.  Otto v. City of Boca Raton, 2019 WL 588645, 2019 U.S. Dist. LEXIS 23363 (S.D. Fla.).

Judge Rosenberg appears to be the first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks.  Just weeks ago, a federal magistrate judge in Tampa recommended to the district court there to grant a preliminary injunction against enforcement of Tampa’s ordinance against conversion therapy practitioners in that city while the litigation proceeds. The district court has not yet ruled on that recommendation, and Judge Rosenberg’s extensive and detailed opinion may influence the other district judge to reject the magistrate’s recommendation.

Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the U.S. Supreme Court’s June 26 ruling, in National Instituyte of Family and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018), that a California statute requiring clinics in that state to advise clients about the availability of state-financed abortion services violated the clinics’ First Amendment rights.  In the course of that opinion, Justice Clarence Thomas, writing for the Court, specifically rejected assertions by two federal appeals courts that “professional speech” is entitled to less constitutional protection than other speech, in cases involving challenges to laws against conversion therapy.

Judge Sansone construed the Supreme Court’s ruling to require using the “strict scrutiny” test to evaluate the Tampa ordinance, and concluded that the plaintiffs were likely to prevail on their claim that the ordinance would not survive strict scrutiny, at least regarding the consensual “talk therapy” that the plaintiffs claimed to be providing to their patients.

Without explicitly mentioning Magistrate Sansone’s analysis, Judge Rosenberg rejected it, concluding that the question of the level of judicial review to be provided to these ordinances is “unsettled” at best, and that the cases that Sansone cited and relied upon do not necessarily lead to the conclusion she reached.

Instead, finding that the appropriate level of review of a ban on talk therapy to attempt to change a person’s sexual orientation (or gender identity, for that matter) is “unsettled,” Judge Rosenberg decided to analyze the issue using the three different levels of judicial review of a statute, always keeping in mind that in requesting a preliminary injunction to block a duly-enacted statute while its constitutionality is being litigated, the plaintiffs have a heavy burden to show a substantial likelihood of prevailing on the merits of their claim.

Using the least demanding level of review, “rational basis,” Judge Rosenberg easily rejected the contention that the city or county were acting irrationally or without any justification in passing the ordinances.  She devoted a substantial part of her opinion to summarizing the evidence that was presented to persuade the county and city legislators that they should pass these laws, concluding that a substantial body of professional opinion unanimously rejects the use of conversion therapy, especially on minors, both because of the lack of evidence that talk therapy can change a person’s sexual orientation, and the mounting evidence of its harmful effects.  Furthermore, she noted, minors are not really capable of giving informed consent and are particularly vulnerable to the psychological harm associated with conversion therapy.

Turning to the next level of scrutiny, which has been applied by other courts in evaluating free speech claims against such laws, “heightened scrutiny,” she found that the legislative record here would back up the defendant’s claims of important governmental interests in protecting minors that are advanced by passing these laws.

Turning to the most demanding level of review, “strict scrutiny,” Judge Rosenberg noted that generally content-based governmental actions to restrict speech are subject to this standard, putting the burden on the government to show that it has a compelling interest at stake and that the measure is narrowly tailored to achieve that interest without unnecessarily abridging free speech.  Narrow tailoring means that the governmental body has to have considered whether a narrower prohibition (the “least restrictive alternative”) would suffice to achieve its compelling goal.

Key to her analysis here is that the defendants met the compelling interest test, because protecting minors is an important role for government, especially when it is necessary to protect them from what may be well-meaning but ultimately harmful decisions by their parents.  The issue which she deemed less conclusive was the narrow tailoring part.  The plaintiffs suggested, as plaintiffs had successfully argued to the Tampa magistrate judge, that a ban on aversion therapy or non-consensual therapy would suffice.  Rosenberg cited reasons for doubting this, including the evidence that talk therapy itself may have harmful effects, as well as her reservations, noted above, about whether such therapy practiced on minors is really consensual.

The bottom line for Rosenberg, however, was that the plaintiffs did not meet the bar of showing that strict scrutiny was definitely the appropriate test to apply, or that they had a substantial likelihood of proving at trial that the measures were insufficiently narrowly-tailored.  As a result, they were not entitled to the preliminary injunction.  She reached a similar conclusion analyzing plaintiffs’ claim that the ordinances are an unconstitutional prior restraint on speech or unduly vague.

Most importantly, she took great pains to explain why the Supreme Court’s ruling in the California clinics case does not necessarily mandate that strict scrutiny should be the standard in this case.  For one thing, she pointed out, that case did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals.  The California case involved requiring clinics to provide information that they did not want to be compelled to provide, which is a different story entirely.  “There,” she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informed-consent requirement or tied to a procedure at all.’”

She also noted that Justice Thomas’s opinion did not even specify what the level of judicial review should be in that case.  She pointed to the Supreme Court’s earlier case, Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court considered a state law requiring that doctors make certain “factual disclosures” to patients seeking abortions in an attempt to dissuade them.  In that case, the Court’s opinion said that “the physician’s First Amendment rights” were only “implicated as part of the practice of medicine, subject to reasonable licensing and regulation by the state.”  This suggests that the rational basis test might apply, or at most heightened scrutiny.

Because she concluded that at this preliminary stage it was possible to conclude that plaintiffs had not shown a substantial likelihood of winning under any of the potentially applicable standards of review, Judge Rosenberg denied the preliminary injunction, leaving to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case.  This means that the performance of conversion therapy on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners while the litigation proceeds.

Plaintiffs are represented by Liberty Counsel, the anti-LGBT legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their 1st Amendment challenge to that state’s ban on conversion therapy for minors.

Federal Magistrate Recommends Limited Preliminary Injunction Against Enforcement of Tampa Conversion Therapy Ban

Posted on: February 2nd, 2019 by Art Leonard No Comments

On January 30, U.S. Magistrate Judge Amanda Arnold Sansone (M.D. Fla., Tampa Div.), issued a Report and Recommendation to the U.S. District Court, recommending that the court issue a limited preliminary injunction barring the City of Tampa, Florida, from enforcing its Ordinance banning licensed health care professionals from performing conversion therapy on minors. The Ordinance forbids all kinds of therapy for the purpose of attempting to change a person’s sexual orientation or to reduce or eliminate same-sex attraction. Judge Sansone concluded, relying on the 1st Amendment’s free speech provision, that the plaintiffs were likely to prevail regarding the type of therapy they claim to provide: non-coercive, consensual “talk therapy,” eschewing electro-shock or other aversion therapy methods, and that failure to enjoin the Ordinance would cause irreparable injury to the plaintiffs by restraining their freedom of speech. Vazzo v. City of Tampa, Case No. 8:17-cv-2896-T-02AAS. Plaintiffs are represented by Liberty Counsel, a right-wing Christian advocacy law firm.

In addition to Robert L. Vazzo, a Florida-licensed marriage and family therapist, plaintiffs include David Pickup, who holds a similar license from California, where his practice of conversion therapy has been prohibited by state law. Pickup alleges that he is seeking Florida licensure. Also suing is New Hearts Outreach Tampa Bay, a Christian organization that refers people to licensed therapists for conversion therapy. Equality Florida, a state-wide LGBT rights advocacy group, sought to intervene in defense of the Ordinance, but its attempt was rejected by Judge Sanson and District Judge Charlene Edwards Honeywell, so it is participating only in an amicus capacity. Of course, the City of Tampa’s legal representative is defending the Ordinance. As a preliminary matter, Judge Sansone concluded that plaintiffs were unlikely to succeed on their claim that the Tampa City Council lacked subject matter jurisdiction to pass the law. She found that the legislature’s regulation of mental health services does not expressly preempt the field, and that implied preemption is disfavored.

Judge Sansone’s recommendation for injunctive relief flies in the face of rulings by the U.S. Courts of Appeals for the 3rd Circuit and the 9th Circuit, which rejected 1st Amendment challenges to similar state laws. In Pickup v. Brown, 740 F.3d 1208 (2014), the 9th Circuit rejected Dr. Pickup’s 1st Amendment attack on California’s conversion therapy ban, finding that the statute was primarily a regulation of conduct by health care providers, which only incidentally affected professional speech. Subjecting the statute to rational basis review, the court found the state’s interest in protecting minors from harmful effects of conversion therapy that were documented in the legislative process by studies and reports and professional opinions were sufficient to meet the rational basis test. In King v. Governor of New Jersey, 767 F.3d 216 (2014), the 3rd Circuit differed from the 9th Circuit and decided the state was a content-based regulation of speech, but that it was “professional speech” in the context of a pervasively regulated profession – health care –and was thus subject only to heightened scrutiny, not strict scrutiny. The 3rd Circuit found that New Jersey had a substantial interest in protecting its citizens from harmful professional practices, relying on the same kind of evidence that was considered in the California case. Thus, in both cases, the 1st Amendment challenges were unsuccessful because the courts found sufficient justification for the legislature’s action. Both cases were denied review by the U.S. Supreme Court.

While acknowledging these2014 rulings in other circuits, Judge Sansone put greater weight on two more recent cases. In Wollschlaeger v. Governor of Florida, 848 F.3d 1293 (2017), the 11th Circuit, with binding appellate authority on a Florida District Court, found that Florida’s law prohibiting doctors from asking their patients whether they had firearms in their homes was a content-based regulation of speech that failed heightened scrutiny. As described by Judge Sansone, “the challenged provision failed to address concerns identified by the six anecdotes the legislature relied on when passing the law.” However, the more weighty recent precedent is National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018), in which the U.S. Supreme Court ruled that a California law that requires “pregnancy centers” to inform their patients that free or low-cost abortions are available from the state government was unconstitutional as a form of compelled speech. California sought to defend its law using the same sort argument thatt prevailed in the Pickup case: that the statute was a regulation of health care practice, only incidentally affecting professional speech, but this argument did not save the statute.

Wrote Judge Sansone: “NIFLA expressly rejected the analyses in Pickup and King recognizing “professional speech” as a separate category of speech subject to differing constitutional analysis. Instead, professional speech is usually given less protection if it is commercial speech or if a law regulates professional conduct that incidentally involves speech. Although stating traditional strict scrutiny analysis applies to a content-based law that regulates neither commercial speech nor conduct that incidentally involves speech, NIFLA applied intermediate scrutiny to the California law requiring pregnancy centers to post notices.” The Supreme Court had stated that it was not necessary to determine whether strict scrutiny should be applied because, in its view, the law did not even survive intermediate scrutiny.

Taking these cases together, Judge Sansone concluded that the Tampa Ordinance is, at least as applied to “talk therapy” as described by the plaintiffs, a content-based regulation of speech that should be subject to strict scrutiny. She noted in support of this conclusion that the Tampa Ordinance itself refers to the counseling at which it is aimed as “professional speech” in a findings provision explaining that it would be “subject to a lower level of judicial scrutiny.” Judge Sansone’s assertion that this is thus a strict scrutiny case appears to go beyond the authorities upon which she claims to rely, since neither of them applied strict scrutiny or held it was appropriate in a comparable context.

However, proceeding to apply strict scrutiny, she found the plaintiffs were likely to succeed on the merits, at least as to talk therapy that is non-coercive and consensual, even though she found that the Ordinance serves a compelling governmental interesting in protecting the physical and psychological well-being of minors. This is because in a strict scrutiny case, the content-based law has to be “narrowly tailored to serve a compelling government interest.” She continued, “The court will not assume plausible alternatives will fail to protect a compelling interest,” and found nothing in the legislative record to suggest that this law was enacted as “the least restrictive means” to achieve the government’s purpose. “If a less restrictive means would serve the compelling governmental interest,” she wrote, “the government must use that alternative.” She found plaintiffs were likely to prevail on their argument that an across-the-board ban of all kinds of SOCE techniques was unduly broad, giving credence to their suggestion that the City could accomplish its goal by banning aversion therapy techniques while allowing talk therapy, and by requiring informed consent from minors and their parents. Without explaining why, Judge Sansone appeared to accept the plaintiffs’ argument that “talk therapy” seeking to change sexual orientation is not harmful to minors, a point that the defendant and amici will sharply contest in a trial of the merits of this case. Also contestable is the contention that there is meaningful consent by minors whose perhaps parents persuade or compel them to submit to conversion therapy.

She also found that plaintiffs were likely to prevail on their claim that the ordinance is a form of viewpoint discrimination and is overbroad. Once again, she appears to buy into the plaintiffs’ contentions that “talk therapy” is not a waste of the patient’s time or potentially harmful. (This despite a ruling she does not discuss, the JONAH case, in which a New Jersey trial court found that SOCE practitioners’ representations of being able to change people’s sexual orientation is a form of fraud in violation of the state’s consumer protection law.) She also considered the ordinance to be potentially a prior restraint of protected speech and unconstitutionally vague.

As to the other grounds for preliminary injunctive relief, she found that any restraint on protected speech causes irreparable harm to the persons whose speech is suppressed, and that the equities in this case tipped in favor of the plaintiffs because the harm to them outweighs any harm to the City. “The City, however, failed to show any harm it may suffer if enforcement of Ordinance 2017-47 is enjoined,” she wrote. “The City and Equality Florida instead focus on potential harm to non-defendants, especially minors, if the Ordinance is enjoined.” But this overlooks the traditional role of government as a protector of the health and welfare of minors under the parens patriae doctrine; the Ordinance was adopted in pursuit of that function, based on evidence offered in the legislative process that conversion therapy is not merely fraudulent but also harmful to minors. The court exclaimed that it is not in the public interest to enforce an unconstitutional statute, but there has been on finding on the merits after trial that this statute is unconstitutional, and there surely is a public interest in protecting minors from harm.

Reciting the doctrine that injunctions should be “no broader than necessary to avoid the harm on which the injunction is based,” Judge Sansone recommended that the injunction be narrowly focused on protecting the practice of “non-coercive talk therapy,” and allow to be enforced against therapy that is coercive or goes beyond talk. As she phrased it, “The plaintiffs’ motion for preliminary injunction should be granted to the extent that the City should be enjoined from enforcing Ordinance 2017-47 against mental health professionals who provide non-coercive, non-aversive SOCE counseling – which consists entirely of speech, or ‘talk therapy’ – to minors within city limits.” The City will have an opportunity to contest this recommendation when it is presented to the district judge.

Alliance Defending Freedom Files Constitution Challenge to NYC Law Banning Conversion Therapy

Posted on: January 29th, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), the anti-gay Christian legal organization based in Scottsdale, Arizona, filed a lawsuit in U.S. District Court in Brooklyn on January 23, challenging the constitutionality of New York City’s Local Law 22 of 2018, which prohibits the practice of conversion therapy in the City. The law was a project of the City Council, which enacted it on November 30, 2017. It was returned to the Council unsigned by Mayor Bill De Blasio within thirty days, and became law without his approval on January 5, 2018.  The case is Schwartz v. The City of New York, Case 1:19-cv-00463 (N.Y. Dist. Ct., E.D. N.Y., filed Jan. 23, 2019).

The measure is probably the most broadly-sweeping legislative measure against conversion therapy to be enacted in the United States. State laws on the subject, including the one enacted in January in New York State, limit their bans to provision of such therapy to minors by licensed health care professionals, and designate the offense as professional misconduct that can subject the practitioner to discipline for unprofessional conduct. The City law, by contrast, applies to “any person” who provides such therapy for a fee to any individual, not just minors. The City law imposes civil penalties beginning with $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation, which can be imposed by the city’s Office of Administrative Trials and Hearings. Its enforcement has been assigned to the Department of Consumer Affairs.

For purposes of this law, “conversion therapy” is defined as “any services, offered or provided to consumers for a fee, that seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” The measure does not contain any express exemption for religious counselors or clergy, but presumably if they do not charge a fee for their services they are not subject to this law.

Legal challenges to the various state laws, of which there are now more than a dozen, have so far been unsuccessful, but it is not clear that the sweeping New York City law will benefit from some of the legal doctrines that states have successfully marshalled to defend their laws. Most importantly, the state laws fall comfortably within the traditional state role of regulating the provision of health care by licensed practitioners, and by being restricted to minors, they rest within the state’s traditional function of parens patriae, caring for the welfare of minors, which can mean at times defending minors from the well-meaning but harmful actions of their parents, such as refusing blood transfusions or medication for serious illnesses.

ADF is asking the court to issue a declaration that the law is unconstitutional and to issue an injunction against its enforcement by the City. The law does not authorize individuals to file suit against conversion therapy practitioners, but instead leaves enforcement to an administrative process, triggered by complaints to the Consumer Affairs Department.

ADF has found a seemingly sympathetic plaintiff, Dr. David Schwartz, a “counselor and psychotherapist practicing in New York City who has a general practice but who has regularly had, and currently has, patients who desire counseling that the Counseling Censorship Law prohibits.” The Complaint also describes him as a “licensed clinical social worker” who “resides and practices in Brooklyn.” When this writer first read the Complaint, he was alarmed to think that the New York City Council would title a measure “Counseling Censorship Law,” but upon retrieving a copy of the Local Law 22, saw that the title was an invention of ADF for the purpose of framing its 1st Amendment challenge, as the word “censorship” appears nowhere in the legislation, which does not have an official title.

According to the Complaint, Dr. Schwartz is an Orthodox Jew whose patients come mainly from the Chabad Lubavitch ultra-orthodox community. He avows that he provides counseling and psychotherapy attuned to the needs and desires of that community, and cites the late Lubavitcher Rabbi, Menachem Mendel Schneerson, as an authority supporting the practice of conversion therapy. The description of his practice does not mention child patients, stating: “Dr. Schwartz works only with willing patients – patients who voluntarily walk into his office and talk with him because they want and value his counsel. And Dr. Schwartz does nothing to or with his patients other than listen to them and talk with them.”

Schwartz fears that the City law will be used against him, and the Complaint focuses on the $10,000 civil penalty like a sword of Damocles hanging over his head. ADF was smart to avoid mentioning minors, since it filed this lawsuit during the time between the state legislature’s approval of its conversion therapy ban and its signing into law on January 25 by Governor Cuomo. If Schwartz practices on minors as a licensed psychologist, he will be violating the state law, possibly setting up another lawsuit by ADF.

ADF has positioned this case primarily as a challenge to government censorship of free speech and free exercise of religion. The Complaint insists that the only therapy Schwartz provides is “talk therapy,” eschewing the bizarre and cruel practices that were describe in a New Jersey court a few years go in a case brought by emotionally damaged patients of JONAH, a Jewish conversion therapy organization that was found in that case to be in violation of the New Jersey consumer protection law. ADF has crafted the Schwartz Complaint to distinguish this case from the JONAH case, which involved Jewish parents effectively forcing their teenage children to subject themselves to bizarre “therapeutic” procedures to “change” their sexual orientation.

By contrast, without ever indicating the age range of his patients, the Schwartz Complaint says that he “does not view it as the psychotherapist’s role to rebuke patients or to tell them the direction they ‘ought’ to go.” The Complaint describes a practice in which patients come to Schwartz “with a very wide range of issues. However,” it continues, “his practice regularly includes a few individuals who experience undesired same-sex attractions. In some cases, patients come to Dr. Schwartz seeking his assistance in pursuing their personal goal of reducing their same-sex attractions and developing their sense of sexual attraction to the opposite sex.” Schwartz insists that he “does not attempt to increase opposite-sex attraction or change same-sex attraction in patients who do not desire his assistance in that direction. In working with patients who desire to decrease same-sex attraction or increase their attraction to the opposite sex, Dr. Schwartz never promises that these goals will be achieved.”

The Complaint also insists that “Dr. Schwartz engages in no actions other than talking with the patient, and offering ways of thinking about themselves and others that may help them make progress towards the change they desire. Dr. Schwartz does not use electro-shock therapy, he does not recommend that patients view heterosexual pornography or that they subject themselves to painful or other adverse stimulations in response to undesired sexual thoughts. Dr. Schwartz simply listens to what his patients share with him, and talks to them.” The Complaint concedes that some patients do not achieve the goal, and “some have chosen to stop pursuing it,” but claims that Schwartz has had success with an unspecified number of patients who have “over time” experienced “changes” that “have enabled Dr. Schwartz’s patients to enter into heterosexual marriage that they desired.”

The Complaint recites the traditional arguments put forward by conversion therapy proponents, about how patients who are “strongly motivated to change” can achieve their goal. Interestingly, the Complaint refers repeatedly to “reducing” same-sex attraction without ever asserting that Schwartz claims to have “eliminated” such attraction in his patients. And, of course, proponents shy away from any sort of formal documentation, insisting that patient confidentiality precludes providing concrete examples. It also cites no published scientific authorities supporting the efficacy of talk therapy in changing sexual orientation.

Several paragraphs are devoted to statements attributed to Rabbi Schneerson relating to this subject, without any citation of published sources.

ADF’s legal theory here is that the city’s “Counseling Censorship Law” is a content-based regulation of speech that is “aiming to suppress the dissemination of ideas and information about human sexuality and the human capacity for change in this area” and “does not adopt the least restrictive means to pursue a compelling government interest,” arguing that the government “has no cognizable interest at all – let alone a compelling interest – in preventing citizens from hearing ideas that those citizens with to hear in a counseling relationship.” The Complaint argues that the law both prohibits and compels speech, in the sense that it “effectively requires Dr. Schwartz to tell the patient that no change is possible, which Dr. Schwartz does not believe to be true.”

The Complaint also claims that the law is “unduly vague” in violation of the Due Process Clause, picking apart various phrases and terms and suggesting that their ambiguity make it difficult for a practitioner to know what he can or cannot say to a patient. The Complaint also argues that the law violates the 1st Amendment rights of patients who want to receive talk therapy to change their sexual orientation. And, of course, it focuses at the end on the Free Exercise Clause, arguing that Schwartz “has a right to use his professional skills to assist patients to live in accordance with their shared religious faith, including the religious mandates of the Torah and the teachings of the Lubavitcher Rebbe and other respected Orthodox Jewish authorities based on the Torah. The Counseling Censorship Law purports to be justified, in its legislative history, by a supposed finding that ‘changing’ sexual orientation is impossible. The Lubavitcher Rebbe, whose teachings inform the core of Dr. Schwartz’s religious convictions, taught exactly the opposite.”

The Complaint argues that because the Council enacted the law knowing that “it was hostile to and targeting practices particularly associated with persons and communities adhering to traditional religious beliefs,” it is “not a neutral law of general applicability,” even though it nowhere mentions religion. This is an attempt to establish that Schwartz’s 1st Amendment claim is not governed by the U.S. Supreme Court’s holding, in Employment Division v. Smith, that individuals do not have a right based on their religious beliefs to be exempted from “neutral” laws of “general applicability.”

Interestingly, all the attorneys listed on the complaint are staff attorneys of ADF based in Scottsdale, Arizona. No member of the New York bar is listed, although a footnote indicates that one of the attorneys, Jeana J. Hallock, will be applying for pro hac vice admission (admission for purposes of this case only) to the bar in the U.S. District Court for the Eastern District of New York. The lead attorney signing the Complaint is Roger G. Brooks. The defendants are The City of New York and Lorelei Salas, the Commissioner of Consumer Affairs, whose department has issued regulations on enforcement of the law, and who is sued only in her official capacity. The New York City Law Department will defend the City and Commissioner Salas in the case, which is likely to attract amicus briefs on both sides of the case.

Indiana Federal District Court Finds No 1st Amendment Protection for College Teacher’s Sexist, Racist, Homophobic and Islamophobic Classroom Comments

Posted on: September 30th, 2018 by Art Leonard No Comments

Ruling on cross-motions for summary judgment in a lawsuit against a state university by a tenured professor who was suspended after an investigation of classroom conduct and statements brought to light by student complaints, Senior U.S. District Judge James T. Moody ruled that the 1st Amendment did not protect, inter alia, certain statements the professor made about homosexuality. Poulard v. Trustees of Indiana University, 2018 U.S. Dist. LEXIS 167617 (N.D. Ind., Sept. 28, 2018).

Jean Poulard has taught political science at Indiana University Northwest Campus (IUN) for more than 30 years, earning tenure in 1990. On June 1, 2015, Gianluca DiMuzio, then chair of the political science department, in which capacity he looked at student course evaluations of department faculty, communicated to Ida Gillis, then Director of Affirmative Action for IUN, student evaluation comments raising concerns about Professor Poulard’s behavior and statements in the classroom. The student comment that first raised a red flag was that Poulard would “frequently voice his racist and sexist views” and that he was “obscenely flirtatious with his female students, often saying perverted things.”

Prof. Di Muzio also commented that he had personally observed Poulard kissing students on the hand and cheek. Gillis and DiMuzio extended their investigation over several years of student evaluations, uncovering a variety of incendiary classroom comments attributed to Poulard, among them a student writing, “I took great offense when he stated how wrong and disgusting it is to be gay and how terrible and messed up a child with same sex parents is going to be in the head.”  There was also a statement that “black people were destroying Chicago and his solution to crime would be a weekly hanging.”

When confronted with these statements in the ensuing disciplinary proceeding, Poulard denied making some statements, softened others (such as claiming he spoke in favor of capital punishment, not weekly hangings), but did not deny hugging and kissing students or his comments about gay people and gay parents.

Gillis wrote a report, supplemented by Di Muzio’s complaint, which was presented to the Vice Chancellor for Academic Affairs, who concluded that Poulard had violated the University’s Sexual Misconduct Code and Code of Academic Ethics, suspending him for a month without pay, placing a letter of reprimand in his personnel file, and requiring him to complete the University’s sexual misconduct training.

Poulard brought a federal suit, claiming breach of his tenured employment contract as well as violations of his constitutional rights to due process and freedom of speech. Judge Moody found that material fact disputes about when the University began to include a disclaimer of contractual effect in its Academic Handbook precluded summary judgment on the breach of contract claim, but rejected the due process claim, finding that the procedures leading up to the Vice Chancellor’s ruling comported with standards of procedural fairness.

As to the First Amendment claim, and particularly the comments about gays and gay parents, Moody found no 1st Amendment protection for Poulard’s remarks. Although some of his statements, for example, “regarding gays, Muslims, and African Americans and crime, could potentially be matters of public concern,” wrote Moody, that was only one factor in applying the Supreme Court’s Pickering standard governing public employee speech, especially as applied in the 7th Circuit under Piggee v Carl Sandburg College, 464 F. 3d 667 (2006).  “Applying a balancing test,” he wrote, “the Seventh Circuit found that the instructor’s interest in making comments regarding religion and homosexuality were not protected when balanced against the school’s interest in the instructor’s adherence to the subject matter of the course she was hired to teach (which in that case was cosmetology).”

Moody continued, “In the case at hand, [Vice Chancellor] McPhail specifically restricted plaintiff’s speech out of concern for ‘developing among students respect for others and their opinions.’ The court agrees with McPhail that IUN had strong interests in restricting plaintiff’s statements in order to preserve respect for the student body, harmony among the IUN population, and to prevent the exclusion and isolation of the minorities targeted by plaintiff’s speech.  McPhail also concluded that the statements were not germane to the topic of the class.  However, plaintiff argues that his case can be distinguished from Piggee on this issue, because, since he teaches a political science course, his statements and comments were within the scope of the course.  The court disagrees.”

“It is true that the teacher in Piggee taught cosmetology which was even further off topic from the instructor’s speech,” Moody explained. “However, here, plaintiff’s course was a course involving Latin American politics, an issue that was not addressed in any of the statements at issue.  Second, the court recognizes that faculty members have some right to engage in academic debates, pursuits, and inquiries.  And being a political science course should give professors some leeway to delve into topical or hot-button social and political issues.  However, statements about gays being ‘disgusting,’ criticizing religious (Muslim) clothing, and asserting that African Americans should be ‘hung,’ are not topical statements and do not invoke hot-button issues.  They sound much more like harassing statements that IUN has a strong interest in eliminating in order to foster an inclusive learning environment for all students, including gays, Muslims, and African Americans.  Accordingly, when performing the Pickering balancing test, the court concludes that the interests of IUN outweigh Poulard’s interests.”  Thus, the court granted defendants’ motion for summary judgment as to the 1st Amendment free speech claim.  Judge Moody also found that a separate free speech claim under the Indiana Constitution could be resolved on the same analysis.

Judge Moody was appointed to the bench by President Ronald Reagan.

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.