Abortion Ambiguities Remain Post-Face Act

By Elizabeth C. Nye, Staff Member (Vol. 14)

When people think about the abortion debate, they think Roe v. Wade. However, the Supreme Court’s decision in Roe was only the beginning of legislation and controversy surrounding abortion rights. The Freedom of Access to Clinic Entrances (FACE) Act, signed into law by President Clinton in 1994, has sparked years of debate and discussion surrounding the First Amendment right to peaceably assemble and protest at—or near—abortion clinics. Namely, some argue that the language of the FACE Act is vague, ambiguous, and infringes upon First Amendment rights. The FACE Act’s failure to define the scope of certain concepts such as “threat,” “intimidation,” and “harassment” makes it difficult to determine what form of language or conduct falls within the right to peaceably assemble.  Through examining the current law, remaining ambiguities within that law, as well as pending legislation, this blog post argues that clarity issues stemming from the FACE Act still exist today. These ambiguities should be resolved by crystallizing the language used in legislation surrounding protests at or near abortion clinics, and by specifying what constitutes “peaceful assembly” under the First Amendment.

The FACE Act: An Overview

The FACE Act makes it a federal crime for anyone “by force or threat of force or by physical obstruction, [to] intentionally injure[ ], intimidate[ ] or interfere[ ] with or attempt[ ] to injure” a person who is obtaining or providing reproductive health services. In some instances, violations of the FACE Act are relatively clear-cut. For example, the Department of Justice filed suit against Richard Retta after he “block[ed] a patient [from entering a Planned Parenthood clinic]…following her for 35 feet and standing in front of the door.” Another individual, David Hamilton, was found to have violated the FACE Act when he used physical force against a volunteer at the EMW Women’s Surgical Center in Louisville, KY.

FACE Act Ambiguities

In other circumstances, however, violations of the FACE Act are much more difficult to determine. For instance, how strictly or broadly do we define the terms “threat,” “intimidation,” or “harassment?” Does the fact that a protesting crowd might angrily chant their views outside of a clinic, but fail to physically harm someone who enters the clinic, mean that such entrants are not being “threatened” or “intimidated?”

Defining “harassment” under the Act has been difficult. For example, in McCullen v. Coakley, the court pointed out that a New York ordinance making it a crime “to follow and harass another person within 15 feet of the premises of a reproductive health care facility” may not pass constitutional muster if a number of factors, including vagueness, fail to be sorted out. Despite the FACE Act being passed two decades prior to this case, it is clear from McCullen that definitional ambiguities still exist. Defining the term “force” under the Act has also proven to be difficult. For example, does legislation that prevents women from accessing reproductive health services act as de facto “forced interference?” If this is indeed the case, then many jurisdictions across the United States could be seen as violating the FACE Act.

New Legislation

If we, indeed, accept the premise that legislation preventing women from obtaining abortions constitutes its own form of forceful interference, then recent legislation within Congress appears to be at odds with the supposed principles set out by the FACE Act. However, if we also accept the idea that the FACE Act is indeed somewhat vague, then could the proposed legislation be seen as merely “gap-filling,” as opposed to being fundamentally at odds with the Act? One such example of new legislation occurred in May 2015, when the U.S. House of Representatives passed a bill banning abortions after 20 weeks by a vote of 242-184. Originally, the legislation required that women seeking abortion services as a result of sexual assault “file a police report to back up any claim of rape.” In the revised bill, this requirement was removed. However, a new provision was added requiring rape victims to receive medical attention and counseling at least 48 hours prior to obtaining abortion services. There has been a great amount of debate surrounding the passage of this bill. Namely, many Democrats called the bill “‘extreme’ and accused Republicans of ‘taking up the measure for political reasons, pointing out the late term abortion ban is popular among religious conservatives.’” In the near future, it will be interesting to see how such legislation conflicts with, or clarifies, the language set out by the FACE Act with regard to forceful interference.

Remaining First Amendment Issues

Despite the plethora of legislation (including pending legislation) and case law, the debate over the First Amendment right to assemble and protest against abortion—and indeed the right to an abortion more generally—remains strongly contested. The FACE Act arguably creates more ambiguities than it solves, and the presence of impending abortion legislation in multiple states suggests that a clear answer is not forthcoming. For example, how much freedom to assemble and protest is being afforded? Should such freedom differ based on location or setting? Should assembled protestors outside abortion clinics be subject to a different interpretation of First Amendment rights than protestors in another setting?

All in all, the non-specificity of the language in the FACE Act, combined with the broad scope of the First Amendment, makes it difficult to interpret whether or not the FACE Act properly falls within the First Amendment’s right to peaceably assemble. Future legislation should avoid these ambiguities regarding freedom to assemble and protest by ensuring that the language is written with a great degree of specificity and carefully defines terms like “threat,” “intimidation,” “harassment,” and “force.”

Protecting Domestic Violence Victims or Depriving the World of the Next Eminem?: A Brief Examination of Elonis v. United States

By Jenica D. Hughes, Staff Member (Vol. 14), Executive Editor (Vol. 15)

Picture this, you marry someone you love and start creating a life together. Eventually, you have two children together, whom you adore, but eventually, your marital relationship begins to suffer and the two of you are arguing more often and decide to divorce.

One day, you check Facebook and see your sibling’s status about taking your children Halloween shopping. You smile, appreciative of your family and their support, but then you notice a comment below: “Tell [your son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [your name]’s head on a stick?” You are shocked and upset, and then you realize that comment came from your ex-spouse, and you find additional violent comments and “rap lyrics” on your ex-spouse’s Facebook directed at you. You then seek help by petitioning for a protective order, only for your ex-spouse to write that a protective order is just a piece of paper, not a bulletproof vest.

Now reverse the scenario. You were married to your spouse for seven years and when your marriage ended, you began to express yourself through art and picture yourself as the next Eminem. You feel confident in your First Amendment rights, but find yourself in court facing a prison sentence for expressing yourself through those words. The trial court finds you guilty of transmitting threats via interstate commerce, a decision affirmed by the Third Circuit. The Supreme Court is your last hope. Two issues are raised in deciding your case: Whether the statute you were convicted under has a subjective intent ormens rea element, and whether the statute itself is unconstitutional pursuant to the First Amendment.

Victim Rights and Civil Liberties Implicated in Elonis v. United States

Ultimately, when the Supreme Court was faced with these facts in Elonis v. United States , the Court held that   18 U.S.C. § 875(c) , the statute regulating interstate communications, required that the defendant be aware of the threatening nature of the communication. In doing so, the Court sidestepped the First Amendment issue. The Court also declined to answer exactly what mental state Elonis, and like defendants, would be required to have to support a conviction under 18 U.S.C. § 875(c) . This post proposes a true threats intent standard that attempts to balance the competing safety and security needs of domestic violence victims with the civil liberties interests of defendants in a way that fairly represents the interests of all parties.

Domestic violence advocates were pleased with the Court’s side-step of the constitutional issue in Elonis because they tend to focus on protecting victims from the very real consequences of being exposed to threats. Threats are “strongly correlated with the likelihood of physical violence” and “direct threats of violence lead to significant physical violence for more than half of victims.” In contrast, civil liberties groups tend to err on the side of all speech is good speech unless it falls into a very narrowly defined category of speech, such as libel or child porn. Often civil liberties groups fear that speech will be chilled if too broad a category of speech is drawn. The interests on both sides of this particular argument are compelling, which makes balancing such interests of vital importance.

Striking an Appropriate Balance

To meet the competing needs of victims and defendants, the Supreme Court should have found that the appropriatemens rea to convict someone of a true threat is reckless disregard. Reckless disregard is the appropriate standard for the Supreme Court and lower courts to impose when addressing this issue. To act with reckless disregard is to “ disregard[] a risk of harm of which [the individual] is aware .” Justice Alito, in his concurrence in part and dissent in part in Elonis , agreed. He wrote, “Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.”

True threats fall outside of First Amendment protection and are defined as“statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals ” regardless of whether the speaker intends to carry through with the “threat”. Because a threat in and of itself creates harm, particularly in cases of interpersonal violence, imposing a mens rea requirement higher than reckless poses asignificant danger to the mental health of domestic violence victims. Furthermore, if the Court were to determine that knowledge or purpose were the more appropriate standard, threats would become “ one of the most protected categories of unprotected speech .” Indeed, recklessness is the standard that applies to criminaland civil libel, so there is little reason to believe it would be unconstitutional in this context. Given the serious impacts of threats on victims, holding threats out to be one of the most constitutionally protected forms of speech makes little sense.

For the foregoing reasons, reckless disregard is the appropriate mens rea that should be applied by the lower courts and, should the issue come before it again, the Supreme Court.

Coping with Unprecedented Connectivity: Citizens and Police

By Alexander M. French, Staff Member (Vol. 14).

On April 4, 2015, a North Charleston Police Officer shot and killed Walter Scott. Michael Shlager, the responding officer, reported that he pulled Scott over for a broken tail light. Scott fled on foot and Shlager pursued. Shlager claimed that Scott grabbed Shlager’s Taser and that Shlager shot Scott in self-defense. A bystander’s video showed a conflict far different than Officer Shlager’s report. The video shows Officer Shlager shooting an unarmed Walter Scott in the back as Walter Scott ran away. The video also shows the officer walk back to where the scuffle occurred, pick an object off of the ground and drop it near Scott’s body, many believe this unidentified object was Shlager’s Taser. The sad case of Walter Scott and Michael Shlager shows both the growing importance of video footage as evidence and as a means to hold police officers accountable for their misdeeds.

Most legal conflicts between police departments and citizen-journalists follow a very similar pattern. First the officer arrests the recording citizen for harassment, stalking, or wiretapping.  Second, the police department drops or reduces the charges. Finally, the journalist brings a 42 USCA 1983 civil lawsuit against the police department for violating their First Amendment rights. Most of the case law on this subject comes from 42 USCA 1983 cases on appeal. See e.g.,Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Gravolet v. Tassin, 2009 WL 1565864 (E.D. La. 2009); Robinson v. Fetterman, 378 F. Supp. 2d 534, 538 (E.D. Pa. 2005);.

When an officer arrests a person that is recording him, the would-be journalist’s First Amendment rights are immediately implicated.  When a citizen records a police officer, two legal questions emerge: (1) to what degree are the citizens’ First Amendment rights protected and (2) how reasonable are the officer’s subsequent actions? These questions suggest that one of the problems faced by both police officers and citizen journalists is lack clarity, which can result in the arrests of citizens and bad publicity for police departments. This blog post suggests a solution to strengthen citizens’ First Amendment liberties and to clarify when citizens have a right to record police.

Journalists Interest vs. Law Enforcement Interest

The ubiquity of smart phones in the U.S. creates a universe of opportunities for society, including the opportunity to hold police accountable for their inappropriate actions. The constant presence of recording devices also creates the chance to hold criminal defendants accountable for their actions and exponentially increases the amount of objective evidence admissible in court. However, this opportunity for public accountability comes with its own attendant anxieties and burdens, which usually fall heavily on police officers.

The current state of the law regarding the recording of police officers is that a citizen-journalist has some First Amendment right to record police officers in the pursuit of their public duties, though courts are split on the extent of that right.  In some jurisdictions, the journalist must be “peaceful” and his recording not be performed in the “derogation of any law.Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999). In others, the right to videotape public police activity is “subject to reasonable time, manner and place restrictions[.]” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).  Finally, despite any First Amendment concerns, “police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.” Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012). These limitations are considered to test if an officer was justified in arresting a journalist.

Whenever a police officer and a journalist interact, there are many interests at play. On the one hand, the journalist has some First Amendment right to the information he gathers (especially if that information is about the government), seeAm. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 597-598 (7th Cir. 2012),  and an interest in holding citizens and officers accountable. On the other hand, the State has an interest in protecting the privacy and safety of its citizens and police officers. If the law hews too close to the government’s interests, then some police officers will suppress journalistic activity for convenience sake. If the law hews too close to the journalists’ interests, then police effectiveness could be impaired as soon as a citizen pulls out a cell phone. Further complicating this problem is the reality that smart phone ownership is increasing. Any attempt to “put the genie back in the bottle” will be, at best, a waste of scarce law enforcement resources.

The Consent Requirement

Most state wiretapping and eavesdropping laws have a positive consent requirement that makes them especially susceptible to abuse by police. For example, in North Carolina, a person is guilty of wiretapping if they record a conversation between two people “without the consent of at least one party to the communication[.]” Under this statute, if a third party bystander records a confrontation between an officer and a citizen, the bystander has committed a crime and may be arrested at the officer’s discretion. Unscrupulous officers can easily use this law as a justification to arrest almost anyone who records a police action and seize their camera. In order to prevent unnecessary conflicts between journalists and police, state legislatures should presume consent to recording when a citizen-journalist is recording the public activities of a police officer in an antagonistic situation with a citizen.

Adding the aforementioned provision to police recording statutes would have three benefits. First, the addendum would protect citizen-journalists in the cases in which the citizen pulls out his camera and records an officer arresting a third party, because the citizen-journalist would be presumed to have consent to record the interaction and the wiretapping statute would not apply.  Second, this addendum would protect citizen-journalists in cases of secret recording of blatant police misconduct, as consent would be presumed in those cases as well. Finally, this addendum circumvents any situations in which the police are restrained in their work, because the presumption of consent is shattered as soon as the police officer requests that a journalist stop recording his interaction.

We are all facing the reality that our actions could be recorded and then posted to YouTube.  The First Amendment implications regarding citizen-journalists recording police officers are only a natural extension of that reality. Given the ambiguity surrounding citizen-journalists’ First Amendment rights and police officers’ authority, conflict is inevitable.  The best outcome for all stakeholders (judge, police, or journalist) is to limit legal conflict through legislative amendments to current wiretapping and eavesdropping statutes.

Cecil the Lion’s Roar: Libel in an Internet Age

By Elizabeth (Beth) A. Kapapoulos, Staff Member (Vol. 14), Chief Staff Editor (Vol. 15).

With the advent of the Internet, an entirely new realm of libel law has emerged in the courts, forcing judges to examine entirely new questions of Internet vigilantism and how to deal with crimes in a digital world.  Defamation, 20 N.C. Index 4th Libel and Slander § 1, includes the two separate torts of libel and slander. This blog will focus specifically on the libel associated with Walter Palmer and Cecil the Lion.

The quickly changing application of libel law and its possible effects on Internet users is exemplified with the recent death of Cecil the Lion, a beloved lion in Zimbabwe who was the victim of a big game hunt. The hunter responsible for his death, Walter Palmer, is a dentist from Minnesota who is the latest victim of Internet vigilantism. Cecil the Lion fans have flooded his Yelp page with negative reviews and threats, forcing him to shut down his dental practice  and hire security for his home because of death threats. At this time, Palmer has not been found to have done anything illegal according to American jurisprudence, but the Internet public has taken it upon themselves to punish Palmer for his actions.

These Internet nay-sayers are clearly exercising their First Amendment right to freedom of speech by giving their opinion of Palmer as both a dentist and a human being. However, this blog will explore whether or not these posters have gone too far. Is there a certain limit past which the First Amendment can no longer protect you? Is there any sort of protection to those who are libeled on the Internet? At what point does an opinion on an Internet site become libelous? These are all questions that have not yet been answered by the courts.

Libel Law and Internet Application

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court made it abundantly clear that the First Amendment should be afforded a lenient interpretation so that the national discussion could be “uninhibited, robust, and wide-open.” 376 U.S. 254, 270 (1927)(stating that there is a national commitment to free public debate). However, in Rosenblatt v. Baer, it was asserted that a person has the right to protect one’s name and that “society has a pervasive and strong interest in preventing and redressing attacks upon reputation.” 383 U.S. 75, 86 (1966)(explaining that important societal values underlie the law of defamation).

Still, sometimes an injury to reputation is not enough to merit a removal of First Amendment protections.

Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention are properly classed as public figures . . . may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.

Gertz v. Robert Welch, Inc., 94 S.Ct. 2997, 3008 (1974).

According to Minnesota law, libel is defined as “a defamatory statement, published to third parties, and which the speaker or publisher knew or should have known was false.” In this case, to find libel there must be an injury to Palmer’s reputation.

Despite this heightened standard for public figures, Palmer could still sue for defamation by showing that: 1) the statements were false; 2) the Internet posters and bloggers were at fault for not ascertaining the truth; and 3) there was actual malice by the posters and bloggers.See New York Times v. Sullivan, 376 U.S. 254 (1927).

Application of Libel Law for Dr. Palmer

Given Palmer’s notoriety created because of the national press about his hunting of Cecil the Lion, which continues months after the lion’s death, it seems that Palmer would be considered a public figure.  Further, the vitriolic responses on his Yelp page, some of which allude to horrible service by Palmer as a dentist, suggest that there has been injury to his reputation.

Clearly these statements were false, meeting the first factor. A court could find that the first factor was met by certain Yelp posts that allude to Palmer cutting patients’ throats during routine procedures and threaten to murder him, as well as Tweets that call him an “environmental terrorist”.  Since Palmer is neither a murderer nor a terrorist, these statements are false. The posts meet the second factor, fault for not ascertaining the truth, as the posts written in first person narrative, and it is obvious that Dr. Palmer did not kill his patients. Since the patients know that they were not killed by Palmer, they are at fault for not ascertaining the truth. These harsh posts also prove the third factor under New York Times, actual malice, because their intention was to ruin his future business as evidenced by their publication on his Yelp page, which is usually used for reviews of businesses. Thus, since all three New York Times factors are met, it seems that courts could find the Internet defendants guilty of libel.


Cecil’s roar, once heard on the African savannah, can now be heard through the keyboards of thousands of outraged animal activists. Although the Internet creates some difficulties in determining potential claimants and liable parties and presents a host of jurisdictional issues, the core doctrine of defamation and First Amendment protection still exists. The fast moving nature of our digital age and the ease at which libelous material can be disseminated makes this issue all the more pressing. In applying the factors to determine defamation, it seems that many of these Internet users could be legally liable for their statements against Palmer.

Senate Bill 2 and the Establishment Clause

By Hillary Li, Staff Member (Vol. 14).

“This is a sad day for North Carolina that history will not judge kindly,” Sarah Preston, the acting executive director of the ACLU of North Carolina said in a statement released on June 11, 2015 . That was the day the North Carolina House of Representatives (the “House”) voted to override Governor Pat McCrory’s veto of Senate Bill 2 (“S.B. 2”), officially making the bill law. The new law permits certain government officials to recuse themselves from performing marriage ceremonies based on their religious beliefs.

Advocacy groups and Representatives who voted against S.B. 2 fear the law will have a negative impact on same-sex couples. Notably, government officials may abstain from performing ceremonies at any time, even the moment they are approached by a couple. Additionally, in smaller counties with only a few magistrates, the concern is that all available officials will recuse themselves. This concern became a reality in McDowell County, as all four magistrates in the county recused themselves, requiring neighboring magistrates to drive in to assist with marriage ceremonies. What’s more, as of September 11, 2015, 32 magistrates in North Carolina had recused themselves under Senate Bill 2. No formal lawsuits have been filed challenging the bill, but advocacy organizations like the ACLU of NC have encouraged any couples that have encountered hurdles to contact their office.

While the new law is not facially discriminatory, because it does not explicitly discriminate against same-sex couples, it directly implicates the Establishment Clause. The First Amendment provides that, “Congress shall make no law respecting an establishment of religion,” and S.B. 2 expressly permits government actors to abdicate their duties based on religious objection.

S.B. 2

Senate Bill 2, first filed in the Senate in January 2015 by Senate Pro Tempore Philip Berger (R-N.C.), allows magistrates, assistant registers of deeds, and deputy registers of deeds to legally recuse themselves from performing marriage ceremonies “due to sincerely held religious objection[s].” S.B. 2, 2014-2015 Gen. Assemb. (N.C. 2015) (codified in N.C. Gen. Stat. §§51-5.5, 14-230, 161-27, 7A-292). Once an official recuses him or herself, the recusal is in effect for at least six months, and the official may not perform any marriages until the recusal is rescinded in writing.  In the event that all magistrates in a jurisdiction have recused themselves, the Administrative Office of the Courts shall ensure that a magistrate is available to perform marriages at least “10 hours per week, over at least three business days per week.” N.C. Gen. Stat. §7A-292(b)(2015).

S.B. 2 was passed by both chambers of the General Assembly, but when it landed on Governor McCrory’s desk on May 29, 2015, he vetoed it. However, a couple days later, the Senate voted to override the veto. The House of Representatives waited a couple sessions to vote on it. As the House vote came out to 69-41 on June 11, it was only 3 votes over the 3/5 majority required. Ten House members were absent , including several Democratic representatives whose votes likely would have changed the outcome. Many advocacy groups were reminded of the “ veto garage ” approach popularized by former speaker Thom Tillis, which entailed leaving vetoed bills in committees for future votes. The approach has been characterized asunfair , but has never been challenged in court.

Advocacy groups released many statements protesting the passage of the bill. Reverend Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality , said “[w]e’re extremely disappointed that the legislators passed this bill, which is clearly discriminatory. Today we saw the Legislature move forward with a transparent anti-gay agenda. It is unconstitutional and won’t stand up in court.” Representatives in the General Assembly chimed in as well. “This was legislation by ambush and we continue to have to resort to the court to defend the rights of our citizens because our legislature fails to do so,” House Democratic Leader Larry Hall said.

The Lemon Test

In 1971, the Supreme Court established the Lemon test to determine whether a law passes scrutiny under the Establishment Clause, which applies to S.B. 2. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Under the Lemon test, to pass Establishment Clause scrutiny, the government’s law must: (1) have a valid secular purpose, (2) not have “the principal or primary effect” of either “advancing or inhibiting religion,” and (3) not create “an excessive government entanglement with religion.” If any of these prongs is violated, the government’s action is deemed unconstitutional. The prongs have been clarified and applied in many cases since then.See, e.g., Lynch v. Donnelly, 465 U.S. 668, 694 (1984); Lee v. Weisman, 505 U.S. 577, 585 (1992).

Some may argue that the Lemon test is outdated because of a changing social environment around religious freedom. There have been cases that approached Establishment Clause questions with tests other than the Lemon test. See, e.g. Bormuth v. Cnty. of Jackson, __ F.Supp.3d __, 6 (2015) (using a fact-sensitive inquiry looking at whether the government act was “psycho-coercive” instead of the Lemon test because an act that fails the coercion test would also necessarily fail the Lemontest). In addition, some Supreme Court Justices have expressed their criticisms of the use of the test in certain situations. See, e.g.Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring) (calling the LemonTest “some ghoul in a late-night horror movie”). Despite this, the Court has never invalidated the test, and lower courts across the country consistently apply it to Establishment Clause cases. In fact, the test was still applied in cases as recently as September 2015. See, e.g. Robinson v. Cate, No. 2:11-cv-02555, 2015 WL 5326199 (E.D. Cal. Sept. 9, 2015); Jewish People for the Betterment of Westhampton Beach v. Vill. Of Westhampton Beach, 778 F.3d 390 (2015). Though it was created in 1971,Lemon is still the main test used by courts when considering Establishment Clause claims, particularly when considering “situations in which the government has allegedly acted to assist an existing religious group.”Amos v. Stolzer, No. 1:14CV63, 2014 WL 6473596, at 5* (E.D. Mo. Nov. 18, 2014).

S.B. 2 Fails Lemon Test

Senate Bill 2 violates all three prongs of the Lemon test. First, S. B. 2 lacks any valid secular purpose. The intent behind the law was to “protect sincerely held religious beliefs,” as stated by House Speaker Tim Moore, which indicates that it intentionally promotes religion to community members, including government officials, couples who want to get married, and other entities involved. It is unrelated to any economic, political, or social motivations that could be deemed unrelated to religion.

Second, the law’s primary effect is to “advance religion.” The officials identified in the bill are government officials, so by allowing them to refrain, based on their religious beliefs, from performing their duties, the bill is promoting religion by the state. It is not merely accommodating religious objections as permitted under Title VII ; it is prioritizing individual religious beliefs over a federal constitutional duty to issue marriage licenses and perform governmental duties. This advances religion over state responsibilities.

Third, Senate Bill 2 creates an “excessive government entanglement with religion.” The government made a law that is explicitly creating an exemption based on religious beliefs, which “invites and encourages” religion to become a part of the job description of state officials. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 306 (2000). There is no way to separate the government job from the religious exemption; they essentially overlap. The law fails the Lemon Test, and should be deemed unconstitutional under the Establishment Clause.

Recent Lawsuit

In December 2015, six plaintiffs filed a federal lawsuit challenging Senate Bill 2 under the Establishment Clause, as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The plaintiffs are three couples who live in different counties in North Carolina. While none of them have been specifically denied access to a marriage because of Senate Bill 2, they claim standing in this suit because they are state taxpayers challenging a specific state law that authorizes public spending for an expressed religious purpose. The outcome of the lawsuit could not only repeal Senate Bill 2, but also speak to the balance between religious freedom and government protections and clarify the federal government’s stance on the Establishment Clause.

Firearm “Gag Order” Bound to Miss Its Mark

By Jonathan C. Jakubowski, Staff Member (Vol. 14).

“The contest for ages has been to rescue liberty from the grasp of executive power.” 

– Daniel Webster

In June 2015, the Department of State proposed several changes to the International Traffic in Arms Regulations (ITAR), which regulate the manner in which items on the United States Munitions List (USML) may be exported. 80 Fed. Reg. 106 (proposed Jun. 3, 2015). In addition to the physical armaments themselves, the ITAR regulates the export of USML items’ technical specifications. The key component of the ITAR, and the reason it concerns First Amendment scholars, is that it requires authorization from the State Department prior to the export of any items falling within its purview. The prior authorization requirement, combined with a creative definition of “export,” creates a real danger of speech suppression through prior restraint.

Currently, the ITAR does not explicitly require State Department authorization to post technical specifications of USML items on the Internet; however, the revised definition of “export” , which includes the “[m]aking [of] technical data available via a publicly available network (e.g. the internet),” changes that. 80 Fed. Reg. 106, 31535 (proposed Jun. 3, 2015). Because the USML covers the types of firearms owned lawfully by millions of Americans, Second Amendment groups fear that these revisions will result in the suppression of firearm-related speech on the Internet. While the Obama administration is certainly no friend to firearm deregulation , the “prior restraint” case law renders such suppression unlikely. Byron Tau, Oregon Shooting: Obama Calls for Gun Reform, Wall Street Journal (Oct. 1, 2015).

The Prior Restraint Doctrine under Intermediate Scrutiny

Originally referring to English licensing schemes used to muzzle publishers of newspapers, the term “prior restraint” has grown to encompass most schemes requiring the licensing of speech. Though courts remain extraordinarily hostile to prior restraints, they may find content-neutral licensing schemes constitutional. See United States v. O’Brien, 391 U.S. 367 (1968) (upholding law that prohibits the destruction of draft cards as a narrowly-tailored, content-neutral speech restriction); see alsoNeb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) (recognizing a presumption against the validity of prior restraints on speech).

A licensing scheme is content-neutral when its restrictions are independent of the content or viewpoint expressed in the speech. In these cases, the Court will first ask whether someimportant government interest unrelated to the particular speech justifies its suppression. Further, the restriction must not burden speech any more than necessary to serve the government interest, and the scheme must have clear standards governing the exercise of discretion by the licensing official to guard against content censorship. These criteria are known collectively as intermediate scrutiny . See United States v. Mak, 683 F. 3d 1126 (9th Cir. 2012).

Despite its broad regulatory reach, the ITAR rarely finds itself challenged on First Amendment grounds. From the few existing cases addressing this issue, the consensus is that the ITAR is content-neutral and not a prior restraint in violation of the Constitution. 683 F. 3d 1126, 1136 (9th Cir. 2012). For example, in United States v. Mak , the defendant was caught attempting to travel to China with the technical specifications of the United States Navy’s Quiet Electronic Drive submarine propulsion system. Id. at 1131. He challenged the ITAR on First Amendment grounds, but the court ultimately rejected that claim, id. at 1136, ruling that the licensing requirement served the important government interest of “ regulating the international dissemination of military information,” an interest of “unquestionable legitimacy.” Id. at 1135. Further, because of its myriad exceptions exempting the most protected speech, scientific research for example, the court found that the ITAR was sufficiently narrowly tailored toward that interest to pass constitutional muster. Id. at 1136.

In requiring that the ITAR be narrowly tailored to serve an important government interest, the Mak court signaled that any future challenges to the ITAR as a prior restraint would be analyzed under the framework of intermediate scrutiny. While that case does not speak directly to the constitutionality of licensing requirements for civilian firearm-related speech on the Internet, the unequivocal application of intermediate scrutiny does provide guidance.

Prior Restraint Applied to Civilian, Firearm-Related Speech

The important government interest in “regulating the international dissemination of military information,” which was the death knell for Chi Mak’s appeal, should serve to shield civilian firearms enthusiasts from the ITAR.

Under the intermediate scrutiny that would be applied to licensing schemes for internet speech related to small arms, the government would bear the burden of showing that (1) the licensing requirement served an important government interest unrelated to the content of the speech; and (2) that the licensing requirement was as narrowly tailored as possible to serve that interest. In Mak, the Court found the then current version of the ITAR served an important government interest in “regulating the international dissemination of military information” and that it was sufficiently narrowly tailored because of the exceptions it provided. Mak at 1136. Though that interest is well served by the regulation of submarine schematics and encryption software, it is not so clear how this interest is served by a scheme requiring civilians to obtain licenses to talk about guns on the Internet.

The Mak court was persuaded that the ITAR was narrowly tailored for the regulation of military information precisely because the regulations were applied only to items that were uniquely adapted or modified for military use . Id. at 1135. Firearms commonly borne by civilians necessarily fall outside of that category. It follows that, were a prior restraint placed on these items, courts would likely find the regulations an insufficiently narrow tool for the regulation of military information.

Furthermore, the civilian ownership of firearms holds a unique place in American culture—one that is recognized even by our highest court. In the United States, the right of civilians to own firearms is protected by the Constitution and roughly 1/3 of households own at least one gun.Tom W. Smith & Jaesok Son, Trends in Gun Ownership in the United States, 1972-2014(University of Chicago, 2015). In reviewing state and local laws that forbade the purchase or ownership of handguns, the Supreme Court has stated repeatedly that the ownership of firearms is “ deeply rooted in this Nation’s history and tradition ;” unsurprisingly, it has guarded the Second Amendment zealously. McDonald v. City of Chicago, 561 U.S. 742, 745 (2010). Characterizing the exchange of civilian firearm information online as a proliferation of military information is farfetched, and, as can be inferred from the reasoning in Chi Mak, such characterization would likely render the ITAR too broad to pass intermediate scrutiny.

ITAR’s Narrow Fit Prevents Overreach into Civilian Firearm-Related Speech

To maintain its constitutionality, the ITAR must remain as narrowly focused on the regulation of the dissemination of military information as possible. Though the USML does include firearms commonly owned by civilians, any prior restraint placed on civilian Internet traffic related to these items would destroy the narrow focus that has kept the ITAR in courts’ good graces. Further, given the Supreme Court’s support of the individual right of civilians to own and use of firearms, the government would be hard-pressed to convince the Court that the suppression of one of the primary means of exercising that right serves an important government interest.

“Chilling” Campaign Finance Law Upheld

By Joseph M. (Max) Swindle, Staff Member (Vol. 14), Notes Editor (Vol. 15).


Political silence, the inability to have one’s voice heard, is an issue that marginalizes many citizens and residents. In an effort to remedy this pervasive issue, some citizens choose to give money to public policy think tanks that help foster discussion about important public policy topics. However, this important tool for political mobility seems to be under siege, as issue-focused organizations face costly litigation arising from burdensome reporting requirements.

In 2005, Independence Institute (“the Institute”), a Colorado think tank, commented on two referenda dealing with taxes and government spending. A referenda supporter sued the Institute, claiming that it was required to register as an “issue committee” with the state, and would therefore have to disclose the identities of its contributors. The complaint was thrown out, but not until the Institute incurred high costs. In addition to litigation costs, the Institute suffered immense opportunity costs. The time and money spent on the trial could have been spent educating the public on issues that impact their daily lives, like the tax referenda. Independence Inst. v. Coffman, 209 P.3d 1130 (Colo. App. 2008).

The Institute filed a lawsuit challenging Colorado’s constitutional provisions that deal with campaign finance for their vague language, as well as their disclosure and reporting requirements. Specifically, the Institute believed that requiring issue committees to disclose individual identities violated the rights to anonymous speech and political participation. The provisions were ultimately upheld in Independence Institute v. Coffman. Both the Colorado and United States Supreme Courts denied certiorari. 558 U.S. 1024 (2009).

The Court of Appeals’ ruling risks the possible chilling of organizations’ political speech, thus limiting the information by which voters make informed voting decisions.

The Burdensome Reporting Requirements

Article XXVIII of Colorado’s Constitution establishes campaign and political finance laws as constitutional provisions. The provisions ensure “that large contributions made to influence election outcomes are not concealed, and that special interest groups cannot disproportionately influence elections outcomes.” Independence Inst. v. Coffman, 209 P.3d 1130, 1135 (Colo. App. 2008). Under these provisions, a group of persons who support or oppose any ballot issue is an “issue committee” when that group has contributions or expenditures in excess of $200. Colo. Const. Art. XXVIII (2015). Once registered, the Colorado Revised Statutes state than an issue committee must submit reports to the Secretary of State that contain “the name and address of each person who has contributed $20 or more” and “the occupation and employer of each person who has made a contribution of $100 or more.” Colo. Rev. Stat. § 1-45-108. Reporting requirements are traditionally justified as needed to ensure no one contributes more to a candidate than is legal. These requirements are meant “to give the electorate useful information concerning the candidate’s views and those to whom the candidate is likely to be beholden.” Colo. Const. Art. XXVIII, Section 1 (2015).

Challenges to the Reporting Requirements

Soon after Independence Institute v. Bruescher, another Colorado case addressed questions regarding the constitutionality of Colorado’s campaign finance laws. In Sampson, et. al. v. Buescher (10th Cir. 2010), a group of residents in Douglass County, Colorado, joined together to oppose an annexation election for their neighborhood. The group spoke publicly and circulated fact sheets opposing the annexation. Their activities and expenditures brought them within the state’s definition of a ballot issue committee. However, the group did not register and report as a ballot issue committee in accordance with Colorado law. A private enforcement action was brought against them, but was eventually settled. The group then brought suit challenging the constitutionality of Colorado’s campaign finance laws. Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010).

The United States Court of Appeals for the Tenth Circuit ruled that the campaign finance laws did burden the individual citizens’ constitutional freedom of association. For example, the residents were burdened by attorney’s fees that cost more than the money used to speak on the issue. What’s more, the residents were burdened by the large amount of time, energy, and money needed to research the law and comply with its requirements. The Court found that the burdens imposed on the residents’ First Amendment rights outweighed the public interest in the disclosure of donors. Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010). The Court held that the residents’ right to association was infringed upon because there was not a substantial relation between the disclosure requirement and a sufficiently important governmental interest. Id. at 1261.

State Interest vs. First Amendment Rights

There are some factual differences between the Institute’s case and the Sampson case. The plaintiffs in Sampson were a group of residents—not a political organization. The key to theSampson court’s ruling was that the administrative and financial burdens the plaintiffs faced outweighed the state interest. One could argue those burdens are not as large for the Institute because it is a think tank, which presumably already keeps up with campaign finance laws.

While that argument does have some merit, there are other factors that show how similar the two cases are and why the Independence Institute court should have used a pattern of reasoning similar to the Sampson court. Like the plaintiffs in Sampson, the Institute is not supporting a candidate but an issue. These classic justifications for disclosure requirements are moot in the current case. The Institute is trying to educate citizens on an issue, not influence what individual candidate gets put into office. The speech in question is about an issue and not a candidate, and candidates are the focus of the campaign finance laws. In both cases, the organizations faced superfluous litigation that did not fit within the true purposes of Colorado’s campaign finance laws. Finally, the lawsuits against both organizations contravene the public’s and State’s best interests.

The Chilling Effect on Political Speech and Mobilization

The court’s ruling in Independence Institute will “chill” issue-oriented organizations from commenting on public policy. Organizations’ concerns about the costly litigation that can arise out of these actions will reduce open discussion on important policy matters. As a result, the public will be less informed and what is in their best interest might not be achieved.

Citizens give money to organizations like the Institute seeking to accomplish what individuals cannot, which is to build a voice loud enough to foster discussion on important topics. When these organizations are no longer willing to speak, it is actually the individual citizens whose voices are silenced.

Unlicensed and Unheard: Stifling Segway Speech

By Mia B. Ragent, Staff Member (Vol. 14)

Do tour guide licensing requirements violate the Free Speech Clause? In the past year, tour guides in two major tourist-destination cities challenged licensing schemes to two different results. For guides in the city of New Orleans, the Fifth Circuit held that the enforcement of tour guide regulations served an important governmental purpose and was within the confines of its police power to implement. Kagan v. City of New Orleans, La., 753 F.3d 560 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403, 191 L. Ed. 2d 361 (2015). The D.C. Circuit struck down a similar Washington D.C. regulation on the grounds that the government interest was not great enough, nor was the regulation sufficiently tailored to pass an intermediate scrutiny test. Edwards v. D.C., 755 F.3d 996 (D.C. Cir. 2014). The D.C. Circuit opinion concluded that while content-neutral, the licensing scheme was not implemented in the least restrictive way possible, a requirement for even facially-neutral laws. Id.

This blog post argues that the D.C. Circuit holding was appropriate while the Fifth Circuit holding was not, because both regulations chilled speech for essentially non-existent problems.

Founding Fathers & Bayou Ghosts

In 2014, five major cities across the country mandated that a private tour guide be licensed before conducting any tours, including Washington, D.C. and New Orleans, Louisiana. In Washington, D.C., the owners of Segs in the City , a Segway tour company based out of the capital, challenged the licensing scheme. The company, whose logo is a fusion of a hot pink martini glass and Segway Human Transporter, takes customers on “Segway Safari” adventures through monuments, past museums, and onto the off-road terrain of the National Mall.

The New Orleans regulations were challenged as well. These  plaintiffs lead a variety of tours, the topics of which include regional cuisine, neighborhood history, and ghost and vampire folklore. While the tour experience may vary dramatically in the two cities, the licensing laws were nearly identical.

The licensing schemes in both Washington D.C. and New Orleans were content-neutral—they did not regulate what a tour guide could or could not say. Instead, they each required that guides pay a fee and pass both a background check and an extensive history exam in order to lead a tour (New Orleans required an additional drug test as well). In both cities, the governments stated that the regulations were necessary to protect basic public safety and the tourism industry. Brief of Defendant-Appellee at 11, Edwards v. District of Columbia , No. 13-7064 (D.C. Cir. 2013); Brief in Opposition at 1, Kagan v. City of New Orleans , No. 14-585 (U.S. 2015).

Licensing Schemes Lack Muster to Pass Heightened Scrutiny

Neither court considered the regulation of tour guide speech to be a regulation of commercial speech (expressions related solely to the economic interests of the speaker which are not inherently protected), but both applied the intermediate scrutiny test for commercial speech established in Central Hudson, because the licensing schemes regulated an economic activity with inherent expressive speech. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 573, 100 S. Ct. 2343, 2355, 65 L. Ed. 2d 341 (1980). Central Hudson held that speech suppression is permitted whenever it directly advances a substantial governmental interest and is not more extensive than is necessary to serve that interest. Id.

The Central Hudson test requires that a law infringing on the First Amendment must meet five specifications: (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest, and (5) the regulation leaves open ample alternative channels for communication. Id at 2531.

For the New Orleans regulation, the Fifth Circuit reasoned that the licensing process was content-neutral (it did not dictate what a tour guide could/could not say on a tour), and that requirement of a drug test and a history exam furthered the city’s substantial interests in protecting both the tourism industry and the public from criminals. Kagan v. City of New Orleans La. , 753 F.3d 560 (5th Cir. 2014).

For the D.C. regulation, however, the D.C. Circuit held the District had failed to present any evidence that the problems it sought to thwart actually existed. What’s more, the court asserted that the government failed to demonstrate that the exam was an appropriately tailored antidote. Finally, the court concluded that the District had provided no explanation for using less restrictive but more effective means of accomplishing its objectives. Edwards v. D.C. , 755 F.3d 996 (D.C. Cir. 2014) .

While the two courts agreed on how to apply the majority of the Central Hudson test, they disagreed that the respective cities had an important or substantial interest at stake, and that the restriction on the First Amendment freedoms were no greater than necessary to protect that interest.  The Fifth Circuit appeared to accept New Orleans’ rationale at face value, concluding that “without those protections for the city and its visitors, the government interest would be unserved.” Kagan v. City of New Orleans, 753 F.3d 560 at 561 ( 5th Cir. 2014). The court reached this conclusion even though the city only produced two total instances of unlicensed tour guides, and there was no evidence that these guides had harmed or defrauded anyone. Id.

The D.C. Circuit took a more probing look into the problem that was sought to be remedied by the regulation, and found similarly laughable statistics, in addition to irreconcilable theories on market forces and crime prevention. “What, pray tell, does passing the exam have to do with regulating unscrupulous tour businesses and unethical guides? How does memorization of addresses and other, pettifogging data about the District’s points of interest protect tourists from being swindled or harassed by charlatans?—surely, success on the District’s history exam cannot be thought to impart both knowledge and virtue.” Edwards v. D.C., 755 F.3d 996 at 1007 (D.C. Cir. 2014) .

The D.C. Circuit agreed that public safety and tourism could produce substantial government interests, but with a proper examination of the facts at hand properly concluded that the regulation was unnecessary to constitute an acceptable limitation on protected speech under the Central Hudson test.

Implications Beyond Segway Tours

Whether or not to tip a guide who makes corny jokes or breathes too heavily into the microphone is up for debate, but whether or not these licensing schemes stifle free speech should not be. The D.C. Circuit was correct in holding that under an intermediate scrutiny analysis, the regulatory scheme prevented tour guide operators from becoming licensed, and therefore pre-chilled their speech. It was neither sufficiently narrowly tailored, nor had the city proven the harm that necessitated regulation in the first place.

While tour guide licensing may seem mundane, the issue of regulation of unlicensed professionals bleeds into every aspect of modern life. Occupational licensing requirements are currently being litigated in lower courts across the country, with many plaintiffs raising First Amendment objections. From a diet blogger in North Carolina, Cooksey v. Futrell , 721 F.3d 226 (4th Cir. 2013), to a virtual veterinarian in Texas, Hines v. Alldredge , 783 F.3d 197 (5th Cir. 2015), to a newspaper advice columnist in Kentucky, Rosemond v. Markham , No. CV 13-42-GFVT, 2015 WL 5769091 (E.D. Ky. Sept. 30, 2015), what a locality may censor and when exactly an intermediate scrutiny test is appropriate are questions left unanswered by the Supreme Court. New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551, D.C. Mun. Regs. tit. 19, § 1200.1 (2010)