Local First Amendment scholar David L. Hudson, Jr. – an occasional guest contributor to this blog whose First Amendment resume rivals anyone alive (Ombudsman for the First Amendment Center, Legal Fellow for the Foundation for Individual Rights in Education, Professor of First Amendment Law at Vanderbilt Law School, etc.) – has penned an excellent piece over at Slate calling on U.S. Supreme Court Justice Anthony Kennedy to undo the damage of Garcetti v. Ceballos—one of the worst First Amendment decisions in the Supreme Court’s modern history.
“In Garcetti, the Supreme Court created a categorical rule: ‘When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'”
The consequences of Garcetti have been devastating, falling particularly hard on whistleblowers and other public employees who have sought to expose official misconduct. Professor Hudson’s full piece (accessible here) is well worth the read, and for the public’s sake, one can only hope that Justice Kennedy will take notice.
Questions about this article? Email Daniel Horwitz at [email protected].
Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.” As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.” Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.
Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:
Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional. Hard-core censorship of this nature also has no place in a free society. We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”
Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity. I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”
Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively. The individuals referenced in this release will be available for further comment at [email protected] and [email protected] once the parties’ settlement agreement has been approved by the Court.
Selected media coverage regarding the case is available at the following links:
In the wake of the U.S. Supreme Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. City of Chicago, lower courts have grappled with the appropriate standard of scrutiny to apply to Second Amendment claims. Respectively, Heller and McDonald held that the Second Amendment confers an individual right to keep and bear popularly-used firearms in one’s home, and that Second Amendment is applicable against both the states and the federal government alike. However, neither case articulated a specific standard of scrutiny for evaluating Second Amendment claims. As a consequence, the full scope of the right to bear arms — such as whether it applies outside the home, whether it applies to handguns alone, and whether it applies only for purposes of self-protection — remains unclear.
The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed. Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny.
After Heller, several competing theories were presented concerning which standard of scrutiny should apply to Second Amendment claims. For example, one prominent scholar suggested that “courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms,” and proposed that courts apply a different standard depending on the specific justification presented. Another theorized that courts would adopt the separate “undue burden” standard that is used to evaluate abortion restrictions. As this author noted back in 2012, though, in light of Heller‘sundefined standard of scrutiny and its expansive language approving certain “longstanding prohibitions on the possession of firearms,” “the post-Heller world has not turned out nearly as well as gun advocates had hoped.” Instead, “by January 2, 2009, lower courts had issued rulings on all manner of gun control regulations, and . . . the scoreboard was ‘Gun Control 60, Individual Right 0.’”
Since 2012, however, a few courts have starkly deviated from this practice. For example, in a recent February 4, 2016 opinion that could have significant nationwide consequences, the U.S. Court of Appeals for the Fourth Circuit held that certain category-based “firearms and magazine bans require strict scrutiny.” Interestingly, the Fourth Circuit’s opinion on the matter also closely mirrors the standard of review analysis that is commonly employed in the realm of the First Amendment.
Notably, one author — First Amendment scholar David Hudson, who is an occasional guest contributor to this blog — predicted that this might happen. For example, in a 2012 article entitled “Turning to the First to understand the Second,” Professor Hudson anticipated that in determining the appropriate standard of scrutiny for Second Amendment claims, “many courts will refer to First Amendment free-speech law and its use of different standards of review. In other words, judges will use the First to understand the Second.” His most recent article on the matter — “A Continuing Trend: Using the First to Interpret the Second” — further explores this trend. It is reposted below with permission:
The 4th U.S. Circuit Court of Appeals recently used an analogy to First Amendment free-speech law in upholding a Second Amendment challenge and striking down a Maryland law banning semi-automatic rifles and larger-capacity detachable magazines.
In Kolbe v. Hogan, a divided 4th Circuit panel noted that the Maryland law imposed a near complete ban on these semi-automatic rifles and larger magazines. The appeals court analogized to the First Amendment principle that bans on entire mediums of speech are constitutionally suspect.
The U.S. Supreme Court identified this principle in City of Ladue v. Gilleo (1994), a case involving a ban on yard signs. “Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression,” the Court explained in the yard-sign case.
The 4th Circuit majority adopted this rationale in interpreting the Second Amendment right to “keep and bear arms,” writing that Maryland’s law banning semi-automatic rifles was “akin” to a law that bans an entire medium of speech.
Courts have examined and developed, over nearly a 100-year period, a complex and intricate body of First Amendment law. However, Second Amendment law is in its nascent phase. The U.S. Supreme Court did not rule that the Second Amendment right to “keep and bear arms” was an individual right until 2008 and it didn’t rule that this principle applied to state and local governments until 2010.
Sometimes, though, courts have used this First-Second connection to reject gun claims. For example, courts have reasoned that just as the First Amendment doesn’t protect all forms of speech, the Second Amendment doesn’t give one an unqualified right to possess any kind of weapon.
Beginning Sept. 27, 2015. the American Library Association (ALA), the American Booksellers for Free Expression, and a host of other groups will remind us once again that that banning books damages the “marketplace of ideas” and is contrary to the meaning and purpose of a free society and a constitutional democracy.
Acclaimed authors such as Toni Morrison, Kurt Vonnegut, and Maya Angelou have seen their books banned in certain school districts. Classics such as J.D. Salinger’s Catcher in the Rye, Aldous Huxley’s Brave New World and Alice Walker’s The Color Purple have faced censorship. The wildly popular Harry Potter series by J.K. Rowling has faced significant opposition.
Books may be opposed for a variety of reasons, such as profanity, sexually explicit themes, sorcery, gambling, and violence. The ALA’s Office of Intellectual Freedom website provides detailed descriptions of books challenged year by year and by decade, offers a top ten list, and provides detailed statistics.
The U.S. Supreme Court addressed the concept of banning books from a public school library in Bd. of Educ. v. Pico (1982). Five years ago, in an interview, Robert Rieger – one of the students who challenged the censorship in the Pico case – said that “I couldn’t believe they were taking classics from the library.”
In the Pico decision, Justice William Brennan wrote that public school officials could not remove books from library shelves simply because they disagreed with the ideas in those books. In his reasoning, Brennan emphasized the “right to receive ideas.”
This “right” should be sacrosanct in this nation. Inquisitive minds shouldn’t be repressed or rebuffed. Rather, they should be applauded or encouraged.
We want an educated populace who loves to read and explore. Justice Louis Brandeis warned in 1927 that “the greatest menace to freedom is an inert people.”
Celebrate “Banned Books Week” by taking time to reflect on the importance of First Amendment freedoms and the power of “the right to receive ideas.”
David L. Hudson, Jr. is the Ombudsman for the Newseum Institute’s First Amendment Center. He also is the author or co-author of more than 40 books, including The First Amendment: Freedom of Speech (2012).
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.
