Monthly Archives: August 2015

The U.S. Supreme Court and Off-Campus, Online Student Speech

Guest Post By Professor David L. Hudson, Jr.

The most pressing question in student-speech (K-12) jurisprudence concerns just how far the arms of school authorities reach.   Nearly fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Tinker case involved brave students in Iowa who wore black armbands to their schools to protest the Vietnam War.   The Supreme Court ruled in their favor and established a legal rule that applies to this day:  can school officials reasonably forecast that the student expression will cause a substantial disruption of school activities?

The Tinker case involved students engaging in peaceful, symbolic expression on school grounds.  It is clear that school officials have the power to enforce constitutional rules as applied to students on campus.

Thus, the question becomes:  can school officials apply the same “substantial disruption” standard to expression created wholly off-campus?   Is it enough that the student’s intended audience are fellow students?   Is it enough that someone at the school will feel outrage or distress at the off-campus expression?   Is it more a matter of parental discipline or, in the case of truly threatening expression, of law enforcement?

A recent decision by the 5th U.S. Circuit Court of Appeals en banc presents many of these questions.  In Bell v. Itawamba County Sch. Bd., the 5th Circuit ruled that school officials could punish a student who posted a rap video he produced on Facebook and then YouTube that criticized two school coaches in explicit and sometimes harsh language.

The 5th Circuit majority determined that school officials could punish the student because the video amounted to harassing, intimidating, and threatening expression and, as such, rose to the level of substantial disruption.

Several dissenting judges disagreed, emphasizing the totally off-campus nature of the expression.

If the case is appealed to the U.S. Supreme Court, the High Court should take a very close look.  The federal circuits are deeply divided on the standards to apply to student off-campus, online speech.

School officials and students deserve to know the rules.

Attorney David L. Hudson, Jr. is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools and Teen Legal Rights (3d. ed.).

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Summary of Tennessee’s For-Profit Benefit Corporation Statute

By Daniel A. Horwitz

On January 1, 2016, Tennessee’s For-Profit Benefit Corporation law will take effect.  Here’s a summary of the law and what it’s going to do.

1.  What is a For-Profit Benefit Corporation?

A For-Profit Benefit Corporation is defined under Tennessee law as: “a domestic business corporation . . . that intends to pursue a public benefit or public benefits.”[1]

2.  What’s the difference between a For-Profit Benefit Corporation and a “traditional” corporation?

By law, “officers and directors of a [“traditional”] for profit corporation are to be guided by their duty to maximize long term profit for the benefit of the corporation and the shareholders.”[2]

In contrast, “[a] for-profit benefit corporation shall be managed in a manner that considers the best interests of those materially affected by the corporation’s conduct, including the pecuniary interests of shareholders, and the public benefit or public benefits identified in its charter.”[3]  Thus, by law, directors of for-profit benefit corporations are obligated to take the interests of both shareholders and the corporation’s publicly beneficial purpose into account when discharging their duties.[4]

3.  What counts as a “public benefit”?

A “public benefit” is a positive effect (or a reduction of a negative effect) on one or more people, entities, communities, or interests other than the corporation’s shareholders.  This includes, but is not limited to:  artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological benefits.[5]

4.  Does the “public benefit” have to be specified in any formal way?

Yes.  Under Tennessee law, Continue reading Summary of Tennessee’s For-Profit Benefit Corporation Statute

Beacon Center Sues Nashville Over Airbnb Regulations

By Daniel A. Horwitz

The Beacon Center of Tennessee has sued the city of Nashville over its recent Airbnb ordinance.  According to its press release:

“In a major development, the Beacon Center today announced the formation of a brand new litigation arm, the Beacon Center Legal Foundation, and filed its first lawsuit. The Beacon Center is suing the city of Nashville on behalf of P.J. and Rachel Anderson. They are challenging unconstitutional regulations the city has placed on their ability to rent their home on Airbnb, a website that connects homeowners like them with guests visiting Nashville.”

The Beacon Center’s complaint, which is accessible here,  alleges myriad constitutional violations of both the U.S. and Tennessee Constitution, including:

  1. Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (vagueness);
  1. Violations of Article I, Section 19 of the Tennessee Constitution and the First Amendment to the U.S. Constitution (commercial speech);
  1. Violations of Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (equal protection);
  1. Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (substantive due process);
  1. Violation of Article I, Section 22 of the Tennessee Constitution (anti-monopoly); and
  1. Violation of Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the U.S. Constitution (unreasonable administrative search).

The complaint also claims Continue reading Beacon Center Sues Nashville Over Airbnb Regulations

Tennessee Supreme Court holds that family is entitled to keep its farm because it acquired “title by prescription.”

By Daniel A. Horwitz

Following a highly complex series of property conveyances, inheritances, tenancies, life estates, split tracts and quitclaims that would make even a bar exam drafter blush, the Tennessee Supreme Court has held that a family is entitled to keep its farm because it acquired title to the farm “by prescription.”

In 1918, property owners conveyed their farmland to a husband and wife.  Unfortunately, in 1918, Tennessee property law was in a highly complicated “hiatus period.”  In 1913, Tennessee enacted the Married Women’s Property Act,[1] which was designed, among other things, to recognize “the right[] of a married woman to . . . manage and control her own property.”[2]  In 1919, however, the General Assembly reinstated a portion of property law that had been eliminated in 1913.  Thus, “from the period between January 1, 1914, and April 15, 1919, a conveyance of real property to a husband and wife created a tenancy in common, with no right of survivorship; at all other times . . . however, such a conveyance created a tenancy by the entirety with a right of ownership in the surviving spouse.”[3]

Fast-forwarding approximately a hundred years through a series of conveyances, inheritances and tract splits involving multiple family members, a property dispute arose over who owned a portion of the farmland in question.  One family—the Baileys—had been living on the disputed property for decades.  However, if the property law that was in effect during 1918 had been understood and applied correctly during the previous century of property transactions, then another family—the Littletons—would have had a partial ownership stake in the land.  Thus, the Littletons sued the Baileys claiming partial ownership in their farm.

Fortunately, Tennessee law has a simple way to deal with disputes like this one that don’t require reaching back a hundred years and parsing through dozens of property conveyances and inheritances in an effort to retroactively fix earlier misunderstandings.  Under the doctrine of “title by prescription,” an individual can Continue reading Tennessee Supreme Court holds that family is entitled to keep its farm because it acquired “title by prescription.”

Idaho’s “Ag-Gag” Bill Struck Down on Federal Constitutional Grounds

By Daniel A. Horwitz

This Monday, a federal judge issued a potentially groundbreaking ruling that an Idaho law  that sought to criminalize undercover documentation of animal abuse is unconstitutional.  According to the judge’s memorandum opinion and order, the law in question violates both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.  The judge explained:

“§ 18-7042 seeks to limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

The law was challenged by a coalition of non-profit groups including the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, and the Center for Food Safety, which argued that the law criminalized whistleblowing and violated the First Amendment.[1]  An amicus curiae brief was also filed in support of these groups by legendary First Amendment scholar and Dean of Irvine School of Law Erwin Chemerinsky, who successfully argued that the law unjustifiably discriminated on the basis of a fundamental right — in this case, free speech — by drawing an unconstitutional classification based on the speech’s content.

Many will remember that the Tennessee General Assembly passed a similar law amid great controversy back in 2013, only to have it vetoed by Governor Haslam after numerous animal rights activists—most notably, Carrie Underwood—waged a vigorous public relations campaign seeking to expose the bill’s true intent:  To suppress documentation of animal abuse in the agriculture industry.  Similar campaigns outside of Tennessee were far less successful, however, leading to the enactment of “ag-gag” laws in several states, including Idaho.  Monday’s ruling, however, marks the first time that an “ag-gag” law has ever been struck down in court, seriously calling into question the validity of the seven similar laws that have been enacted across the country.[2]

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Zach Kyle and Cynthia Sewell, Federal judge strikes down Idaho’s ‘ag-gag’ law, Idaho Statesman (Aug. 3, 2015), http://www.idahostatesman.com/2015/08/03/3922838_judge-strikes-down-idaho-ag-gag.html?rh=1.

[2] See Natasha Geiling, Federal Judge Rules Idaho Ag-Gag Law Unconstitutional, ThinkProgress (Aug. 4, 2015, 12:13PM), http://thinkprogress.org/climate/2015/08/04/3687617/idaho-ag-gag-law-unconstitutional/.