A Different Take on Lund and the Scope of Legislative Prayer

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By Corey Noland, Staff Member (Vol. 16)

“A moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”

If I did not know any better, I would think this statement was made by a political candidate talking to his or her religious constituents, or perhaps by a pastor discussing his or her perspective on legislative prayer. But no, this quote is taken from a Supreme Court decision written by Justice Kennedy in Town of Greece in which he outlines the standard by which legislative prayer is scrutinized. This quote encapsulates the scope of the Supreme Court’s protection of legislative prayer. The most recent installment in the line of legislative prayer cases is one of significance in North Carolina. Rowan County’s longstanding tradition of opening commission meetings with prayer was challenged by the ACLU in 2013 as running afoul of the Establishment Clause.

My fellow First Amendment Law Review staff member wrote an excellent  blog post in which she outlined how Lund was decided in the District Court and the Fourth Circuit. However, I disagree with her as to the validity of the distinctions used by the Fourth Circuit in Lund to move it outside of the shadow of Town of Greece. Specifically, I disagree with the notion that a prayer led by a commissioner is more coercive than legislative prayer led by a clergyman, and that legislator-led prayer should be treated differently under the precedent set by Town of Greece. My colleague believes that if the Supreme Court takes up Lund, the decision could be “closer than one would initially think;” however, I argue that the Supreme Court’s decision will not be close. The strong presumption in favor of the legislative prayer established in Town of Greece will swallow up the questionable distinctions used by the Fourth Circuit in Lund.

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Carpenter v. United States: The Threat Posed by Increased Government Access to Business Data

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By Evan Dancy, Staff Member (Vol. 16)

Ever since the NSA wiretapping scandal broke in the early 2000s, Americans have lived with the uncomfortable suspicion that the government might be or is keeping active surveillance on the calls we make to our grandmothers or the dog pictures we post to our social media profiles. In fact, the pervasive use of the Internet and social media in our daily lives has assisted law enforcement and government officials in their ability to catch criminals. However, government access to information has also had an adverse effect on our ability to engage in public discourse.

A study conducted after Edward Snowden disclosed government surveillance tactics showed that individuals were less likely to search terrorism-related keywords, such as “dirty bomb” and “suicide attack.” Another study found that individuals who knew the government was surveilling their social media interactions were less likely to share their views when disagreeing with U.S. action. They concluded that “government’s online surveillance programs may threaten the disclosure of minority views and contribute to the reinforcement of majority opinion.” While increased surveillance potentially makes us safer, there is also a concern that growing government surveillance is not only discouraging public discourse but also potentially chilling the democratic engagement of citizens.

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First Amendment Newsflash 3/26-4/8

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Federal Court News

Federal judge allows lawsuit over Kentucky driver’s “I’m God” license plate to move forward.

The Virginia woman who was fired from her government contracting firm for flipping off President Trump’s motorcade sued her employer.

Recent lawsuit settlement over Maryland Governor’s Facebook page requires Maryland’s governor to be more permissive of social media commenters who disagree with him after ACLU lawsuit alleged the plaintiff’s First Amendment rights were violated when the governor deleted the constituents’ comments and blocked them from his official Facebook page.

Federal judge denied plaintiff’s request for a preliminary injunction to prevent Kentucky governor from blocking anyone on his social media accounts after he was sued for allegedly violating free-speech rights by blocking people from his Twitter and Facebook accounts.

An attorney argues for one of two women charged with burglarizing a mosque while making derogatory comments about Muslims that his client’s case is about exercising her free speech rights and not about hate speech.

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Freeing the Word to Subordinate the Woman

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Photo Credit: Courtesy of Jeffrey Bruno, ALETEIA

By Rachel Kokenes, Staff Member (Vol. 16)

 

The Current Political Climate as Backdrop

As President Donald Trump looked (via satellite) into the crowd of anti-abortion activists gathered for the 2018 March for Life, he used a word that most monitoring the national debate surrounding abortion would find controversial—“love.” “‘The March for Life. . . is a movement born out of love. You love your families, you love your neighbors, you love our nation and you love every child—born and unborn—because you believe every life is sacred, that every child is a precious gift from God.’” This take on the anti-abortion movement, while undoubtedly applauded by those who believe it, is somewhat unique for a sitting president. In fact, although other presidents may have been pro-life, President Trump is the first to show his face at the march (Presidents Reagan and W. Bush each made telephonic remarks), a cornerstone event for the pro-life movement that has existed for forty-five years.

In response to POTUS’s speech, Planned Parenthood issued a statement accusing the Trump administration of being “laser-focused on using their power to control women’s bodies.”  In fact, President Trump did not simply praise the anti-abortion movement itself, he also heavily criticized the seminal Roe v. Wade decision and the “permissive abortion laws” that it enabled. He has been on record  stating that he hopes precedent will be overturned. Coming from the man singularly responsible for filling any vacancies that may arise on the Supreme Court, this statement should not be taken lightly.

Wading even further into the judicial branch than the appointment of judges, the Trump administration unsuccessfully attempted to coerce the D.C. Circuit into denying an undocumented teenager an abortion while in custody.

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Viral Videos and Violations: The First Amendment on University Campuses

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By Rachel LaBruyere, Staff Member (Vol. 16)

On MLK Day this year, University of Alabama student Harley Barber posted two expletive-laden videos to her finsta account. The first video featured Barber saying “I love how I act like I love black people because I fucking hate niggers.” After students threatened to inform Barber’s sorority about the video, she posted a second video ranting “[n]igger, nigger, nigger. I don’t care if it’s Martin Luther King Day. I’m in the south now bitch, so everybody can fuck off. I’m from New Jersey so I can say nigger as much as I want.”

After the videos went viral, Barber was kicked out of her sorority and expelled. She is not the first, and will certainly not be the last, student to face repercussions for offensive campus speech. Recent months have seen a series of similar cases — and the history of these cases stretches back decades. While the expression and language involved in these cases is certainly abhorrent, it is also constitutionally protected by the First Amendment. Which begs the question: does a university punishing students for protected speech violate the constitution?

The Doctrinal Line

Experts have opined that if Barber were to bring a First Amendment case against the university, it would likely be successful. Former ACLU attorneys penned an open letter to UA’s President expressing concern over Barber’s expulsion. They noted that UA is a public institution and therefore an agent of the state under the purview of the First Amendment. They also expressed dismay at the decision to expel Barber, noting “if the First Amendment allows the state to punish someone for ugly remarks that are profoundly offensive, as in this case, then it acquires the power to do the same for other speech that is offensive to those in power.”

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First Amendment Newsflash 3/12-3/25

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.

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Photo Credit: Courtesy of Karthik BK

 

Federal Court News

The Ninth Circuit found that the City of Long Beach’s zoning rules violated the First Amendment by unreasonably restricting prospective business owners’ options for establishing new tattoo shops.

After the ACLU filed a federal lawsuit saying a blanket sign ban during a Vice President Mike Pence appearance at a St. Patrick’s day parade would violate the free speech rights of parade attendees, the city of Savannah reversed course and announced signs would be allowed at the event.

The ACLU filed a federal lawsuit alleging the New Orleans permit requirement for large murals is unconstitutional after the city accused a muralist of a zone violation for a mural featuring a controversial Trump quote.

The 10th Circuit upheld the constitutionality of Utah Senate Bill 54, which creates an alternative avenue for candidates to qualify for primaries by collecting signatures, despite arguments that this bill infringes on the First Amendment associational rights of political parities.

The New York City Police department is facing a class action lawsuit, which alleges that the police department’s policy of requiring Muslims to remove their religious headscarves for arrest photos violates the First Amendment’s free exercise clause.

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Georgia and Delta Relationship Hits Turbulence

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By Sabrina Heck, Staff Member (Vol. 16)

In light of the most recent school shooting in Parkland, Florida, corporations like Dick’s Sporting Goods and Walmart have changed their policies on gun sales. Other major corporations, such as First National Bank of Omaha, MetLife, Hertz, and Symantec, have diminished or discontinued their affiliation with the National Rifle Association (NRA) by ending discount programs for NRA members. Most notable has been Delta Airlines’ disassociation with the National Rifle Association.

On February 24, 2018, Delta tweeted, “Delta is reaching out to the NRA to let them know we will be ending their contract for discounted rates through our group travel program. We will be requesting that the NRA remove our information from their website.” A Delta spokesman, Trebor Banstetter, informed multiple news organizations that only thirteen people had booked tickets using the NRA discount for the upcoming conference.

Delta CEO, Edward Bastain, has stated “we are not taking sides” in the national debate over gun control. Delta’s decision to end discounts for NRA members who were attending the gun-rights group’s annual meeting in Dallas was intended as a showing of the company’s neutrality in the debate. Unfortunately for Atlanta-based Delta, this move to be neutral and stay outside of the gun control debate sparked conflict and animosity between the corporation and Georgia legislators.

Shortly after Delta reported their cutting ties with the NRA, Republican Lt. Gov. Casey Cagle tweeted, “I will kill any tax legislation that benefits @Delta unless the company changes its position and fully reinstates its relationship with @NRA. Corporations cannot attack conservatives and expect us not to fight back.” On Thursday, March 1, 2018,  the state House and Senate voted to pass a broad tax bill after GOP lawmakers eliminated language that would have exempted jet fuel from sales taxes.

The question now is whether or not the state of Georgia has infringed upon a corporation’s First Amendment rights by dropping the jet-fuel tax break that Delta wanted from a recently passed tax bill—likely intended as a punishment. The 2010 U.S. Supreme Court case Citizens United vs. Federal Election Commission  held that corporations have First Amendment rights. Analyzing the facts of this case under Citizens United, it would appear that the state of Georgia has infringed on Delta’s First Amendment rights. Constitutional law professor Michael J. Gerhardt remarked that, “generally, the government may not punish anyone, much less a single company, for expressing itself (or trying to control the expression of its values). . .[i]f Georgia punishes the airline for expression Georgia does not like, that is a First Amendment violation.”

While it seems there is a clear First Amendment violation, whether Delta would have a strong legal case against Georgia is questionable. According to Rust v. Sullivan, the government can selectively fund programs without violating the Constitution. If the government were to threaten to take away funding they had already provided because of an organization’s viewpoint, then there would be a First Amendment violation. In the present case, Delta did not have the tax exemption to begin with, so the state is not taking something away from Delta that it already had.

Delta has not stated that they will be taking any action against the state or that they intend to move their headquarters out of Atlanta. Bastain commented that“[n]one of this changes the fact that our home is Atlanta and we are proud and honored to locate our headquarters here.”