All posts by DanielAHorwitz

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

Constitutional Law, First Amendment, , ,

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

Business Law,

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

Constitutional Law, First Amendment, Fourth Amendment, , , ,

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.”

Property Law, ,

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

Constitutional Law, First Amendment, , ,

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 [email protected].

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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/.

 

“Short Circuit” for July 31, 2015

Constitutional Law, Criminal Procedure, First Amendment, Opinions,
Each week, the Institute for Justice — a libertarian public interest law firm that specializes in constitutional litigation — issues a fun “short circuit” newsletter summarizing the interesting U.S. Circuit Court opinions of the week (you can subscribe by clicking here).   This week’s summary, authored by John K. Ross, is re-posted below:
  • Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.
  • To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.
  • Inmate Liaison Committee member at Fishkill, N.Y. prison files grievance on behalf of prisoners, is sent to solitary confinement for 90 days. Retaliation? Second Circuit: That’s a possibility.
  • Fifth Circuit: No new trial for a former New Orleans, La. police officer convicted of burning the body of a police-shooting victim to cover up the victim’s death in the aftermath of Hurricane Katrina.
  • Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”
  • Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.
  • A strip club in Winnebago County, Wis., successfully demonstrates that the county’s permitting scheme for adult businesses is an unconstitutional prior restraint. Can the county regulate the club under a new zoning code, or is the club now a preexisting nonconforming use? Seventh Circuit: Now that the First Amendment thing is settled, let the state courts figure out the rest.
  • DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.
  • In which the Seventh Circuit expresses concern about the reliability of drug doggies but gives no succor to man sent away for 20 years for cocaine possession.
  • Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth Circuit: Contra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.
  • Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.
  • Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods.Ninth Circuit: Even if you had standing, which you don’t, you would still lose.
  • A 370 lb. mountain goat with a nasty attitude and no fear of humans menaces visitors and rangers in Olympic National Park for years, then finally kills a hiker. Ninth Circuit holds negligence suit is barred by the Federal Tort Claims Act’s “discretionary function” exception. Dissent: Doing nothing to protect the public from an unruly beast the size of an NFL lineman was not a “policy” choice—it was garden-variety negligence.
  • After having previously concluded that the First Amendment does not apply to a Florida prohibition on doctors inquiring about their patients’ gun ownership, a panel of the Eleventh Circuit changes its mind: The First Amendment applies, but the prohibition is still constitutional. (Interested in occupational speech? Read IJ’s latest cert. petition to the U.S. Supreme Court.)
  • And in en banc news, the Third Circuit will reconsider whether the government must file a forfeiture petition if it wants to keep 10 ultra-rare coins given to Treasury officials for authentication and then not returned to the owner.

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Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.

Constitutional Law, Criminal Procedure, , , , ,

By Daniel A. Horwitz

A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.

The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape.  The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White[1] – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony.[2]  In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”[3]

Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime.[4]  In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.”[5]  More simply, as one Court of Criminal Appeals Judge once explained the issue:  “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”[6] Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims. →

Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

Constitutional Law, Criminal Procedure, , , , ,

By Daniel A. Horwitz

[Disclosure:  The author was represented as an amicus curiae in this case as one of twenty-two members of the Tennessee Bar Association, and he has previously written about and spoken about his opposition to capital punishment on several occasions.]

In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution.  The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e).  Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.

The Government opposed the inmates’ challenge to the constitutionality of the electric chair in part on the basis that Continue reading Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future. →

The Second Circuit weighs in on economic protectionism, an issue which could affect Nashville’s proposed local hire referendum

Constitutional Law, , ,

By Daniel A. Horwitz

The U.S. Court of Appeals for the Second Circuit has officially weighed in on an issue that looks increasingly likely to reach the U.S. Supreme Court:  Whether laws that promote pure economic protectionism — known in economic terms as “rent seeking” — are prohibited by the 14th Amendment to the Constitution.  As this blog has previously explained, with Nashville’s voters contemplating adding a “local hire” provision to the Metropolitan Charter this August, this debate appears poised to return to Tennessee soon as well.

The Second Circuit’s opinion helpfully outlines the divergence of authority that has emerged with respect to this issue, noting:

In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir. 2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”).  The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”).

Ultimately, the majority opinion flatly concludes that:  “economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.”

Rejecting the majority’s conclusion on this point, however, the similarly informative concurring opinion penned by Judge Christopher Droney reaches a directly contrary view.  Judge Droney explains:

[T]here must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses.  As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).  Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit’s approach.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).

I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here.  See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest].    Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority . . ., whenever courts have upheld legislation that might otherwise appear protectionist . . ., courts have always found that they could also rationally advance a non‐protectionist public good.” (emphasis in original)).

A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. . .

As this author has previously noted, the U.S. Court of Appeals for the Sixth Circuit — which has jurisdiction over Tennessee — was the first Circuit court to resolve this issue, holding in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) that: “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”   The Tennessee Supreme Court has reached a similar conclusion with respect to the Tennessee Constitution, concluding in Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956) that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”

Whether this line of authority will cause Nashville’s local hire ordinance to be invalidated — and whether the U.S. Supreme Court will definitively answer the question to resolve the growing divergence of authority — only time will tell.

Questions about this article?  Email Daniel Horwitz at [email protected].

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Tennessee Supreme Court holds that insurance assignment clause was ineffective.

Contract Law, Tort Law,

By Daniel A. Horwitz

A Victim was injured in a car accident, and he sought chiropractic services from the Plaintiff, Action Chiropractic Clinic.  Prior to receiving the chiropractic services, the Victim signed a contract with an “Assignment of Rights” clause.  In pertinent part, the Assignment of Rights clause stated:

For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC

. . . .

For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.

The Assignment of Rights clause specifically named Erie Insurance Exchange as the policy holder.  Of note, however, Erie Insurance Exchange was not the Victim’s insurance company.  Instead, Erie Insurance Exchange was the insurance provider for the driver who had injured the Victim in the car accident.

Action Chiropractic Clinic ultimately charged the Victim $5,010.00 for its chiropractic services.  Shortly thereafter, Erie Insurance Exchange entered into a settlement with the Victim and paid him $8,510.00 for all claims relating to the car accident.  However, neither the Victim nor Erie Insurance Exchange paid Action Chiropractic Clinic anything for the chiropractic services that it rendered to the Victim.  As a result, Action Chiropractic Clinic sued both the Victim and Erie Insurance Exchange seeking payment, among other things, under the “Assignment of Rights” provision. Continue reading Tennessee Supreme Court holds that insurance assignment clause was ineffective. →