SCOTUSBlog is running a series of video interviews with the ACLU’s Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.
Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief’s defense of the facial constitutionality of Massachusetts’ public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law–not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.
The ACLU’s McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU’s position “evolved over time.”
McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.
There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU’s brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.
Not all evolution is progress.
Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.
(cross-posted at Mirror of Justice)
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Posted in Fourth Circuit, Law, tagged Elrod-Branti, Facebook, free speech, Hampton, Hollander, sheriff, Thacker, Traxler on September 18, 2013|
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A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):
Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.
Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones, 706 F.3d 379, 388 n.3 (4th Cir. 2013).
In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43, 54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s Campaign Page conveyed that message to those viewing his profile or the Campaign Page.15 In fact, it is hardly surprising that the record reflects that this is exactly how Carter’s action was understood. See J.A. 160 (McCoy’s testimony that in light of Carter’s liking Adams’s Campaign Page, “everybody was saying that . . . Carter is out of there because he supported Adams openly”); see also J.A. 793 (Sheriff’s Office employee stating that Roberts had said that “certain employees were on the Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).
All of this sounds just right.
Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined. Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).
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Posted in Fourth Circuit, Law, tagged Chesterfield County, definition of religion, Duncan, fortune-teller, Free Exercise, free speech, inherently deceptive, Psychic Sophie, RLUIPA, Thoreau, Traxler, Wilkinson on February 26, 2013|
The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.
From a doctrinal perspective, two noteworthy aspects of Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”
With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”
With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”
From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”
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