First Amendment Newsflash 2/5-2/18

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.2000px-Simpsons_tv_icon.svg

Photo Credit: Courtesy of Sakurambo


Federal Court News

The Second Circuit threw out a free speech challenge by Citizens United to New York’s requirement that registered charities disclose their donors annually.

The organizers of the Charlottesville rally plan to use a First Amendment defense to a lawsuit alleging that the rally organizers incited violence and are legally responsible for the 30 injuries and one death that occurred.

A brother and sister convicted of cyberstalking linked to the brother’s ex-wife’s death allege that their freedom of speech rights were violated.

A high school senior filed suit stating his First Amendment rights were violated after he was told not to interrupt the city mayor’s question and answer session at his high school.

Arguments have begun in the ACLU of San Diego’s appeal to the Ninth Circuit to rule that a U.S. Customs and Border Protection policy prohibiting photographers at border ports without permission violates the First Amendment.

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The Price of Free Speech: A Brief Examination of Expressions Hair Design et al. v. Schneiderman

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Photo Credit: Courtesy of Alpha Stock Images

By Samantha Aparicio, Staff Member (Vol. 16)

Modern technology and the use of credit cards has created a world where one can make immediate purchases and have access to accounts without the former delay of checks, banks, or cash. This need for immediate gratification has allowed for a monopoly of credit card issuers who can capitalize on customers’ and merchants’ reliance. Most people view credit cards as a necessity to function in our present economy; a tool that creates an ease of access when making purchasing decisions. Does this ease of access have an expense? Who pays the price? In New York, the merchants pay the ultimate price for this immediate gratification. In order for merchants to utilize customers’ credit cards for payment, they must have appropriate technology, and company-approved charging methods, in order to access customers’ funds.  However, the Supreme Court has implied that merchants’ First Amendment freedom of speech rights are implicated when states attempt to control how merchants price their goods.

In order to accommodate for the use of credit cards, merchants have two options available to them. They may use an increased price, “credit surcharge price,” that accommodates for the fees that merchants must pay credit card issuers in exchange for the ability to use credit cards as a payment method, or the merchant may offer a discount for the use of cash. Only ten states ban the use of credit card surcharge prices, including New York.

New York General Business Law § 518 provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Essentially, the New York law prevents retailers from using this surcharge method to increase the retail price of a product for purchases made with a credit card. However, there are no laws that prevent merchants from utilizing the second of the merchant options: providing a discounted price for customers paying with cash. The penalty for using surcharges and violating this law ranges from a possible $500 fine to a potential one-year sentence in prison.

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First Amendment Newsflash 1/22-2/4

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.


Photo Credit: Courtesy of Charlie Nguyen


Federal Court News

A federal judge refused to block the removal of a Confederate monument on courthouse grounds in north Louisiana after the United Daughters of the Confederacy filed a First Amendment claim.

The Trump administration filed court documents supporting a lawsuit against the University of California, Berkley accusing the school of violating the First Amendment by restricting campus speakers with conservative viewpoints.

A federal judge threw out a defamation lawsuit over the “hate group” label that dozens of nonprofit groups received on a website database of U.S. charities.

A federal judge ordered the University of Iowa to temporarily reinstate a conservative Christian organization as a registered student organization after the university revoked campus registration when the group denied a leadership position to a gay student who would not affirm a statement of faith rejecting homosexuality.

The parties involved in a federal lawsuit, claiming a woman’s First Amendment rights were violated after a police officer grabbed her phone and deleted a photo she took of her son in the officer’s vehicle, reached a settlement.

A federal judge temporarily blocked a Kansas law prohibiting state contractors from participating in boycotts against Israel, ruling that the state law violates state contractors free speech rights.

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Rowan County Commissioner Prayer: Coercive or Tradition?

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Photo Credit: Courtesy of Harley Pebley

By Sabrina Heck, Staff Member (Vol. 16)

Imagine sitting in a small-town community meeting, at which you make decisions about traffic, school zones, and other issues that impact your community. You have a keen interest in being present, and you want your voice and concerns to be heard. But you do not believe in God. You do not pray. As the rest of the room bows their head in prayer before the discussion of a proposed traffic light, you look straight ahead, eyes open. You hear a scoff to your right, small and subtle. It is enough. It is enough to make you feel uncomfortable. Enough to make you wish you had bowed your head and closed your eyes in mock prayer not to be out-casted, judged, and belittled by members of your community. You are no longer a peer but a civilian that is tolerated. Your opinions are tainted in their eyes. What you have to say about the stoplight, however insightful, is repudiated by this non-secular community. Why? Because whether or not you believe in “God” obviously correlates to your ability to determine what the timing of the signals at the new stoplight should be.

Until 2013, the Rowan County Board of Commissioners opened community meetings with Christian prayer. Then, the ACLU of North Carolina intervened. The ACLU filed a lawsuit challenging the commissioners’ coercive prayer practice in March 2013 on behalf of three Rowan County residents. The ACLU argued that the commissioner’s practice and the invitation to prayer before public community meetings is a violation of the Establishment Clause. So far, this argument has succeeded. The district court held the prayer to be unconstitutional. The case then went to a three-judge panel of the Fourth Circuit. The panel reversed the district court’s decision, but the full court granted a rehearing en banc and reversed the holding of the panel in a 10-5 decision.

The decision by the Fourth Circuit that Rowan County’s prayer practice before community meetings is unconstitutional relies heavily on the fact that Rowan County lawmakers lead the prayer. This, combined with the county leaders consistently invoking only one faith, Christianity, and requesting that members participate shows a tendency that the community preferred Christianity over all other religions. In making their decision, the judges looked to prayer by former commissioner Jon Barber in which he said the “one way to salvation is Jesus Christ,” as well as a prayer by former commissioner Carl Ford in which he prayed “that citizens of Rowan County put Jesus Christ first.”

ACLU of North Carolina Legal Director Chris Brook stated that “[t]his ruling is a great victory for the rights of all residents to participate in their local government without fearing discrimination or being forced to join in prayers that go against their beliefs.” Unfortunately, this victory for the ACLU is not going unchallenged. The decision by the Fourth Circuit has not deterred county commissioners from trying to prevail on their argument that the practice of prayer before meetings is a rooted tradition. The commissioners voted 5-0 in favor of appealing the case to the U.S. Supreme Court.

If the Supreme Court decides to hear the case, their decision as to the constitutionality of Rowan County’s prayer practice may be closer than one would initially think. In 2014, the Supreme Court decided in Town of Greece v. Galloway that the town’s practice of opening meetings with prayer does not violate the Establishment Clause. The case was decided 5-4 and reversed the Second Circuit’s holding that, “some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.” Justice Kennedy authored the opinion and wrote that “[t]he town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”

The language of Kennedy’s opinion in Galloway mirrors the arguments of the lawyers for Rowan county who have stated the prayers neither “threaten damnation nor preach conversion,” and have pointed to a tradition of legislative prayers going back to a time before the founding of the republic. The Rowan case is distinguishable from the Galloway case in that government officials led the prayers, not volunteer chaplains. If the case is taken to the Supreme Court, the lawyers for Rowan County may try to rely upon Marsh v. Chambers. In Marsh, the Supreme Court ruled that the Nebraska Legislature’s practice of opening its sessions with chaplain-led prayer is constitutional for it is a practice that has continued without interruption for approximately 200 years. The Court stated that “[w]hile historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress.”

The Rowan case is notably dissimilar to Marsh in two ways; (1) Rowan county prayer is led by lawmakers and (2) It is not clear that the practice of prayer is a longstanding tradition rooted in history. Rowan County Commissioners most likely understand that this difference significantly hurts their case for after the district court’s ruling that the prayer is unconstitutional the commission invited a volunteer chaplain to lead the prayers.

Judge Wilkinson’s majority opinion for the Rowan case emphasizes that “Marsh and Town of Greece do not settle whether Rowan County’s prayer practice is constitutional. Those decisions did not concern lawmaker-led prayer, nor did they involve the other unusual aspects of the county’s prayer practice. And certainly, did not address the confluence of these elements.” Because of this inability to rely on prior cases concerning prayer the Supreme Court may hear the case, but if they decline to review the Commissioner’s appeal than the holding of the Fourth Circuit will stand.

One should feel open and free to participate in community activities and discussions. The decision of the Fourth Circuit gives members of the community who do not associate themselves with Christianity or any other religion the ability to have their opinions heard and heeded without a veil of disdain.

Masterpiece Cake Shop: A Recipe for Constitutional Avoidance


Photo Credit: Courtesy of Meg

By Jonathan Zator; Staff Member (Vol. 16)

A.    An Appetizer

A case is a meal, and oral argument is the dessert. This is an apt metaphor for a case about a cake. Oral argument is “the last thing the Court sees and consumes before it either shows its appreciation for the hearty meal” or “chomps [the] arguments to bits.” In the oral argument for Masterpiece Cakeshop vs. Colorado Civil Rights Commission, the Justices enjoyed a hearty helping of dessert. Now, the Justices should write the most limited review of the meal possible, or else risk destroying the entire restaurant.

B.    The Meal So Far

In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack Phillips, design and create a cake for their wedding. Phillips declined to do so. As a rule, he does not create wedding cakes for same-sex weddings because of his Christian religious beliefs. Specifically, decorating cakes is a form of art through which he can honor God. Phillips believes that making Craig and Mullins’ cake would displease God.

Craig and Mullins filed discrimination charges. Under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014, they alleged discrimination based on sexual orientation. An Administrative Law Judge issued a written order in favor of Craig and Mullins. The Colorado Civil Rights Commission affirmed this decision. On appeal, the Colorado Court of Appeals then affirmed the Commission’s ruling.

The ultimate issue is whether compelling a religious cake maker to design and make a cake for a same-sex wedding violates the baker’s free speech or free exercise rights.


C.     The Dessert

The Justices wanted a slice of this case. On December 5, 2017, the Court heard arguments from petitioner Masterpiece Cakeshop, Ltd. and respondent Colorado Civil Rights Commission. Kristen Waggoner and U.S. Solicitor General Noel Francisco represented Masterpiece. Colorado Solicitor General Frederick Yarger and David Cole represented the Commission. Amy Howe provided a detailed summary of the argument.

Several Justices voiced support for Phillips. Chief Justice Roberts compared making the cake to forcing a Catholic legal services organization to give marital legal advice to a same-sex couple. Justice Alito focused on the issue that another baker could decline to create cakes opposing same-sex marriage, but Phillips could be forced to make a cake honoring a same-sex marriage. Justice Gorsuch objected to a part of the state’s order that required Phillips to provide comprehensive anti-discrimination training to his employees.

The Court’s more liberal justices mostly sided with the couple. Their questioning focused on showing that writing a ruling for Phillips would be next to impossible without, as Justice Breyer put it, “undermin[ing] every civil rights law since year two.” Justice Kennedy, when discussing the impact that a ruling for Phillips could have for the LGBT community, proposed that if Phillips wins he could place a sign to indicate that he would not bake cakes for same-sex couples, which would be “an affront to the gay community.”

A significant issue came from certain anti-religious statements. Kennedy raised a statement by a member of the Colorado Civil Rights Commission that “religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust.” The Commission member asserted it is “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” Kennedy asked that if the Justices “thought there was a significant aspect of hostility to a religion in this case” then should the Commission’s order against the baker stand? Yarder, for the Commission, responded that “absolutely, that would be a problem.” Roberts chimed in that “we’ve had this case before” when one judge on a three-judge panel was biased. Gorsuch noted that a second (two out of seven) Commission member said something along anti-religious lines. Kennedy returned to this issue later saying “tolerance is essential in a free society,” but Colorado has not been tolerant of Phillip’s religious beliefs.


D.    Reviewing the Meal: Constitutional Avoidance

A meal has many parts. Based on the dessert, Amy Rowe believes a conservative majority is leaning toward ruling for Phillips, but she did not specify on what grounds. The Court’s best option is to write a short review of the meal by following the canon of constitutional avoidance. Constitutional avoidance is the principle that the Court “should avoid ruling on constitutional issues, and resolve the cases before them on other . . . grounds.” In practice, if the Court faces different possible decisions or interpretations, the Court should decide the issue with the easy constitutional answer to avoid hard constitutional questions and questionable answers. To do otherwise would enter Dred Scott territory.

Targeting the Commission members’ anti-religious comments is the easiest and narrowest possible ruling. Based on the dessert, there are at least five, possibly up to seven, Justices displeased with the Commission’s anti-religious comments. Ruling on this narrower ground is better than entirely upholding the order (harming religious free exercise) or striking the order (hurting the LGBT community and every anti-discrimination law since year two).

This third middle-ground option can be accomplished by extending the precedent in Lukumi Babalu Aye. In that case, the Court –– unanimously –– held that a law could not be designed to target specific religious behavior. Extending that decision, to the Masterpiece case’s order, should appeal to both the more liberal and more conservative Justices. If the Court strikes only the Commission’s order because of the anti-religious comments, then deciding for Phillip and upholding the anti-discrimination statute should please the more conservative and more liberal Justices.

In conclusion, the Court should compromise and decide this case on the anti-religious ground. A single culinary mistake does not demand shutting down a restaurant. A chef may be fired, but a few anti-religious comments should not undo every anti-discrimination statute since year two.


First Amendment Newsflash 1/8-1/21

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.



Federal Court News

Parties in a federal lawsuit that accused a Louisiana police officer of violating a woman’s First Amendment rights by grabbing her cellphone and deleting a photo she took of the officer reached a settlement that includes officer training on the public’s First Amendment right to photograph police performing their duties.

The Ninth Circuit dismissed a sex worker advocacy group’s lawsuit claiming that prostitution should be a First Amendment-protected form of commercial speech.

The Justice Department backs Archdiocese of Washington in its court appeal to have its Christmas fundraising ads displayed on Washington, D.C. public transportation.

A man, whose 1989 Supreme Court case granted First Amendment protection for flag burning, sued the City of Cleveland and others for their roles in his arrest after he tried to burn a flag at the Republican national Convention in 2016.

A federal court ruled that Republicans in North Carolina unconstitutionally violated voters’ First Amendment rights by gerrymandering congressional districts in 2016 to ensure Republican victory.

Federal court reject’s terminated Louisiana State University professor’s First Amendment suit against the university, stating that there is no meaningful connection between her vulgar and sexually explicit language and her training future elementary school teachers.

The Second Circuit applied the First Amendment to grant a right for a food truck vendor to use an ethnic slur in branding for his company.

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Do You Have a Constitutional Right to Your Mimosa at Sunday Brunch?

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Photo Credit: Courtesy of Las Vegas Blogs

By Lindsay Frazier; Staff Member (Vol. 16)

Picture this: You walk into your favorite brunch spot on a Sunday morning at 11:45 a.m. with a group of friends. You decide to partake in a traditional brunch activity and order a mimosa to go with your food. The waitress proceeds to inform you that the restaurant cannot serve alcohol to patrons before noon on a Sunday. Before this summer, this scenario occurred at every restaurant in North Carolina. The passage of Senate Bill 155, also known as the Brunch Bill, now allows restaurants to serve alcohol beginning at 10 a.m., subject to a decision by local government entities.

Towns and cities such as Raleigh, Carrboro, Hendersonville, and Chapel Hill quickly passed ordinances allowing the sale of alcohol starting at 10 a.m. on Sundays, but other areas of the state did not move as quickly. In New Bern, where the city ordinance failed on its first attempt at passage, a city alderman called the bill “another invasion on a Sunday, which is a religious day for a lot of people.” Others expressed concern that the bill’s passage would deter people from going to church. Such comments from elected officials raise questions of the separation of church and state concerning laws that are often decided in ways that benefit or are motivated by religion.


Blue Laws and the Constitution

Laws that prohibit or limit certain activities on Sundays, including those affecting alcohol sales, are commonly known as “blue laws.” Blue laws have long been subject to attack on constitutionality grounds, but the United States Supreme Court has ultimately upheld them in a variety of cases.

In McGowan v. Maryland, the Supreme Court did not strike down blue laws in Maryland, which prohibit the sale of drugs, tobacco, and newspapers on Sunday, based on the grounds that laws with religious origins are not unconstitutional if they have a secular purpose. The McGowan court further stated that the Constitution does not ban federal or state regulation of conduct whose reason or effect merely happens to align with the teachings and/or beliefs of some religions (such as observing Sunday as a holy day). The Court concluded that most Sunday closing laws lean toward a secular purpose, as they provide a uniform day of rest for all citizens. Other blue law cases heard by the Supreme Court have upheld a prohibition on sales of certain goods on Sundays or mandatory Sunday store closings for certain businesses; for example, in Braunfeld v. Brown the Supreme Court upheld a Pennsylvania law that only allowed certain stores to open on Sundays.


Did the Supreme Court Get It Right?

The reasoning of the Court in these blue law cases skirts past Establishment Clause issues by stating that these laws have a secular purpose. This argument seems questionable when it comes to closing stores on Sundays or only being able to sell certain items; after all, other religions may have different holy days that are not Sundays (Seventh Day Adventists and members of the Jewish faith both observe Saturdays as a holy day). Thus, laws prohibiting activities on Sunday appear to be made with those of the Christian faith in mind.

Even if the “secular purpose” reasoning advanced by the Court holds up in regard to Sunday closing laws, it is hard to apply that reasoning to laws prohibiting the sale of alcohol before noon on Sundays because there appears to be no real secular purpose that benefits the general public. Prohibiting alcohol sales before noon on Sundays is not the same as providing a uniform day of rest, as you can buy alcohol any other day at any other time. For that matter, you cannot buy alcohol at 11:59 AM on a Sunday in some North Carolina cities, but you can a minute later at 12:00 PM.

A disconnect quickly appears once the McGowan reasoning is applied to blue laws prohibiting the sale of alcohol on Sundays. With store closings, the public at least gains a benefit in the form of a day off from work. Prohibiting alcohol sales, on the other hand, takes away something that is otherwise legal for those over twenty-one years old and not driving. The public gains no benefit with prohibiting alcohol sales on Sunday, and it appears that most secular purpose arguments would fail. For instance, it is difficult to argue that the secular purpose is a concern for safer roads when people can drink any other day of the week or any time after noon on a Sunday.



Maybe it is time for the Supreme Court to change course, at least when it comes to blue laws relating to the regulation of alcohol sales, as these laws do not seem to fit the secular purpose requirement. If the federal government continues to leave decisions regarding blue laws up to state legislatures, then North Carolina has taken the right step in passing Senate Bill 155. By allowing the sale of alcohol before noon in North Carolina, the state is moving away from laws that appear to raise serious concerns about the separation of church and state, when it comes to the motivation for their passage. While it is still problematic that local lawmakers are deciding whether or not to pass these laws based on their religious convictions, at least the option to allow Sunday alcohol sales now exists in the state.