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October 31, 2014

Supreme Court Watch: Speech Supreme

Sophia M. Stadnyk

It’s been a gratifying Term for Supreme Court watchers. Although the contraceptive mandate decisions (Burwell v. Hobby Lobby Stores, Inc. and the others) dominated the headlines and generated the most forceful debates, the Court was also called on to balance government interests against competing claims of personal freedom and speech: the freedom not to be subjected to a government’s “favored” religion, the freedom to use traditional public spaces for expressive speech, the freedom to give truthful testimony without fear of retaliatory employment actions, and the freedom from searches of one’s “privacies of life” stored on a cellular phone.

“And Now We Desire to Invoke . . . Thy Guidance”

On May 5, the United States Supreme Court issued the decision in Town of Greece v. Galloway, 572 U.S. ____ (May 5, 2014) (No. 12-696), the first ruling on invocational prayer by the Court since Marsh v. Chambers, 463 U.S. 783 (1983). In Marsh, the Court upheld the giving of prayers to open the sessions of the Nebraska Legislature by the same (paid) Christian chaplain on the basis that such prayers were historically understood as entirely compatible with the Establishment Clause.

The Town of Greece, New York, had established an informal practice, later formalized, of inviting volunteer clergy to open its monthly council meetings with an invocation. At no time was any interested volunteer denied an opportunity to deliver a blessing or prayer, and the town neither reviewed the invocations in advance nor provided restrictions or guidance on what these should contain. But, because nearly all of the town’s congregations were Christian, the result was that most of the volunteers were Christian and often used overtly Christian references (Christ, Jesus, and the like). Volunteer clergy sometimes spoke on behalf of all those present by saying “let us pray,” or asked those present to stand and bow their heads. After two residents, Galloway and Stephens, complained that the invocations were “offensive” as being exclusively Christian, the town invited representatives of other faiths and beliefs to participate, although the majority of the invocations continued to be given by Christians. Galloway and Stephens sued. They did not want to end the practice but sought to make it generic, arguing that the Establishment Clause’s prohibition on government favoring of any religion mandated a nonsectarian and “inclusive” invocation.

The district court upheld the town’s practice: the content of the invocations was not due to an impermissible policy preference for Christianity but, rather, the predominantly Christian character of the town’s congregations. The First Amendment did not require legislative prayers to be nonsectarian, nor did it require a municipality to recruit volunteers from congregations beyond its borders in the interests of religious diversity. On appeal, the U.S. Court of Appeals for the Second Circuit reversed. Using a test of whether a reasonable, objective observer under the totality of the circumstances would have concluded that the town had affiliated itself with a particular religion, the court found that in effect, the town’s practice had resulted in establishing a “civic religion” of its own.

The Supreme Court reversed the Second Circuit in a 5–4 decision, without a majority opinion. The town’s invocation practice did not violate the Establishment Clause because an “insistence on nonsectarian or ecumenical prayer as a single, fixed standard [was] not consistent with the tradition of legislative prayer,” as based in accepted practices and interpreted in Marsh. Slip op. at 10. To hold otherwise would require legislatures to sponsor or censor invocations, and the courts, ultimately, “to act as supervisors” over what constitutes approved religious speech. Id. at 13. This came perilously close to the promotion of an official or civic “neutral” religion as a means of avoiding the establishment of a religion with more specific (and individually objectionable) creeds, something that was itself prohibited by the Establishment Clause.

The result is that local governments may begin their meetings with prayers and are not restricted to invocations that scrub all mention of a particular creed or belief system. The one restraint on content was this: the invocation should be “solemn and respectful in tone” so as to invite the councilors to “reflect upon shared ideals and common ends before they embark on the fractious business of governing. . . . If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” this, examined as a whole, was potential evidence of a constitutional violation. Id. at 14–15. Provided the municipality has a policy of nondiscrimination in its selection process, there is no additional requirement of religious diversity for the sake of diversity, as this skirted the boundaries of a government seeking to define the permissible categories of religious speech. Id. at 17–18.

On the argument of the coercive element or forced participation in prayers not of one’s own faith, Justice Kennedy noted that the American tradition of robust open-mindedness “assume[d] that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.” Id. at 16. In the part of his judgment joined by Chief Justice Roberts and Justice Alito, Justice Kennedy pointed out further that offense is not coercion; the Constitution does not serve to insulate citizens from all ideas and concepts that they find objectionable. Nothing, moreover, prevented persons who disagreed with the invocation from ignoring it, leaving, or skipping that part of the proceedings entirely.

Employee Testimony: “I Swear . . . ”

In Lane v. Franks, 573 U.S. ____ (June 19, 2014) (No. 13-483), a unanimous Court held that a government employee who had been fired in retaliation for his truthful sworn testimony in a federal prosecution, compelled by subpoena, was protected by the First Amendment, even though his testifying fell outside the scope of his ordinary job duties.

Edward Lane, the director of a program operated with federal funds, ran afoul of Suzanne Schmitz, a state legislator. She was one of his organization’s highest-paid employees, but never came to work. (When Lane told her to report to work, she apparently refused, saying she wished to continue to serve in the “same manner” as she had “in the past.”) After Lane uncovered this scam, he fired Schmitz, and she vowed to “get him.” When Schmitz was charged with fraud, Lane testified at her two criminal trials. Schmitz was convicted and ordered to pay $177,251.82 in restitution. After the first trial, Franks, the president of Lane’s employer, fired Lane and 29 other employees, pointing to the organization’s (perhaps not surprising) budget shortfalls. Within two days, however, all of the terminations except Lane’s and one other were rescinded, and a new director was hired to replace him. Lane alleged he was fired in retaliation for his compelled testimony, in violation of the First Amendment.

The Eleventh Circuit, relying on Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), ruled that no constitutional violation had occurred because Lane spoke as an employee, not as a citizen. To recover in a claim of retaliation for protected speech under the First Amendment, a public employee had to establish that he or she spoke as a citizen on a matter of public concern. Lane’s speech was made entirely because of what he discovered in his official duties as a public employee, owed its existence to his professional responsibilities, and was not made in his capacity as a private citizen. The fact that his speech was compelled because of a subpoena did not transform this essential character of the speech. Even if a constitutional violation of Lane’s First Amendment rights had occurred, Franks, the court found, would be entitled to qualified immunity in his personal capacity because the right at issue had not been clearly established.

The Supreme Court reversed in part, finding that Lane’s testimony was speech as a citizen on a matter of public concern. Franks, however, was entitled to qualified immunity for the claims against him in his individual capacity because there was no clear Eleventh Circuit or Supreme Court precedent that would preclude Franks from reasonably believing he could fire Lane on account of testimony he gave as a public employee, outside the scope of his ordinary job responsibilities.

The starting point for the Court was Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968), which required the weighing of the First Amendment protection of a public employee’s speech “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs.”

It was undisputed that Lane’s ordinary job responsibilities did not include testifying in court proceedings. “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties [was] speech as a citizen for First Amendment purposes,” even when the testimony related to the public employment or concerned information learned during the course of the employment. Slip op. at 9. In fact, such testimony in judicial proceedings was “quintessential” speech as a citizen because anyone who testified in court had the obligation, as a citizen, “to the court and society at large, to tell the truth.” Id.

The Court turned the Eleventh Circuit’s approach on its head: a case in which the employee learned of the subject matter of his speech-testimony in the course of employment (as Lane did) was distinguishable from a situation in which the speech itself was ordinarily within the scope of an employee’s duties. “In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” Id. at 10. In addition, the content of Lane’s testimony (government corruption and misuse of state funds) obviously involved a matter of “significant public concern.” Id. at 12. Applying the remainder of the balancing test, the Court found the “employer’s side of the Pickering scale is entirely empty”: there was no “government interest that tips the balance in their favor.” Id. at 13. This would be the case when, for example, Lane’s testimony was found to be false or erroneous, or unnecessarily disclosed sensitive, confidential, or privileged information.

Employee Speech: Whistleblower Protection

A section of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A(a) (captioned “Whistleblower protection for employees of publicly traded companies”), reads that no public company “or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” The question in Lawson v. FMR, LLC, 571 U.S. ____ (Mar. 4, 2014), was how far the scope of this protection extended: did it shelter the employees of private contractors and subcontractors who performed work for the public company, or did it apply to only employees of the public company itself? The plaintiffs in the case were former employees of private companies that had contracted to advise or manage public companies (mutual funds), where the public companies had no employees. Both plaintiffs alleged putative fraud or violations of federal securities laws relating to the mutual funds and claimed they were retaliated against by their employers as a result. No court of appeals had ruled on this issue before the First Circuit, which concluded, after considering the caption, language, and textual structure of the law, that only the employees of the defined public companies could shelter within the whistleblower protection. The defendant FMR was clearly a “contractor” that was prohibited from retaliating against “an employee” who engaged in protected activity, but it was only prohibited from acting against employees of public companies, and not its own employees.

The Supreme Court reversed and remanded, placing more weight on the background to the law than its caption in arriving at the law’s purpose. The Enron scandal that gave rise to the Sarbanes-Oxley Act involved contractors and subcontractors who participated in Enron’s fraud and cover-up, and who were able to evade detection because of a “corporate code of silence” that inhibited employees from reporting misconduct on pain of retaliation, including termination. Accordingly, the Court viewed “with suspicion” any interpretation of § 1514A that would limited its scope to only whistleblowers employed by a public company. Nothing in § 1514A’s language confined the class of protected employees to those of a designated public employer; in fact, the list of prohibited actions were those that any employer used to discipline its own employees. Likewise, the section’s enforcement procedures and remedies assumed that the whistleblower was an employee of the retaliator. In addition, Congress modeled § 1514A on another law that was understood to protect contractor employees. Because of the integral role outside professionals played in the Enron debacle, “one [could] safely conclude that Congress enacted § 1514A aiming to encourage whistleblowing by contractor employees who suspect[ed] fraud involving the public companies with whom they work[ed],” and to afford them adequate protection from retaliation when they did. Slip op. at 19.

Free Speech: Sidewalk Counseling Against Abortion

A speech case with significant implications for local governments is McCullen v. Coakley, 573 U.S. ____ (June 26, 2014) (No. 12-1168), regarding a unique Massachusetts law that imposed a 35-foot buffer zone around a reproductive health facility, and prohibited persons, with four exceptions, from knowingly entering or remaining on any “public way” or sidewalk within such a marked zone during a facility’s business hours. Persons entering or leaving the facility, facility employees acting within the scope of their employment, persons travelling on the street or sidewalk solely for the purpose of reaching some other destination, and law enforcement and municipal employees or agents were exempted. The objective was to address intimidation and harassment of clinic staff and users; another provision of the law prohibited deliberate blockades or obstructions to facility entrances. “Sidewalk counselors” who sought to dissuade women from getting abortions by calm and caring outreach claimed that the law violated their First Amendment rights to speak to women and peacefully protest in public areas. In Hill v. Colorado, 530 U.S. 703 (2000), the Supreme Court had previously held that another “sidewalk counseling” law, imposing a 100-foot buffer zone around clinics with an additional “bubble” zone, in which it was illegal to approach within eight feet of a person and to leaflet, display a sign, counsel, or engage in similar acts without that person’s consent, was valid. (Massachusetts had initially adopted a similar law using an 18-foot buffer and a six-foot bubble zone, but replaced it after finding that the six-foot zone was too difficult to enforce in chaotic and dynamic situations.)

The opinion of the Court, delivered by Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan (concurring opinions were filed by Justice Alito, and Justice Scalia, joined by Justices Kennedy and Thomas), was that the Massachusetts law, while neither content nor viewpoint-based, went too far in regulating expressive conduct in places that have traditionally been open for speech activities.

The majority held that buffer zones served legitimate government interests in maintaining public safety on streets and sidewalks and in preserving access to reproductive health-care facilities. Although the law was content neutral—the fact that it regulated only health-care facilities did not make it otherwise—it was not “narrowly tailored” because it burdened substantially more speech than was necessary to further legitimate state interests.

The specific problem, from the record, was limited principally to a Boston clinic on Saturday mornings, and local police were familiar with all of the potential violators. Slip op. at 28. Although the state claimed that Massachusetts had “tried other laws already on the books” (e.g., anti-obstruction and harassment), apparently not a single prosecution had been brought under such laws within the last 17 years. Id. at 27. This suggested that less restrictive alternatives to a buffer zone had not been seriously considered or attempted. Instead, the state resorted to a law that closed down a significant portion of a traditional public forum to all speakers. With respect to the petitioners specifically, the zones carved out areas that made it difficult for sidewalk counselors to get very close to their audience. Although they could “protest” outside the zones, the petitioners were not protestors; they sought to engage women entering clinics in consensual conversations about alternatives to abortion, and their evidence was that this means of communication was essentially impossible given the way the zones worked. The buffer zones “effectively stifled [the] petitioners’ message.” Id. at 22. This implicated the essence of First Amendment expression: close conversations and leafleting were so fundamentally linked with communication that restrictions or prohibitions on these methods resulted in “an especially significant First Amendment burden.” Id.

The bottom line is that, while safety and access in and around abortion clinics is clearly a legitimate concern, the government cannot entirely insulate such facilities from otherwise lawful free speech that occurs on public streets and sidewalks.

Searching Stored Speech

Riley v. California, 573 U.S. ____ (June 25, 2014) (No. 13-132), decided together with United States v. Wurie (No. 13-212), concerned “stored” speech and other personal cell phone information in the context of the Fourth Amendment and privacy.

In Riley, police seized a cell phone on booking Riley following a lawful arrest. Certain gang-related items had been found when he was arrested, so police examined the photos and videos on his “smart phone” assuming that this would reveal additional evidence of crime. Sure enough, several images showed Riley next to a car linked to a gang shooting. Riley was charged with that crime and subject to a penalty enhancement based on offenses being committed in furtherance of gang crime. When Riley moved to suppress the evidence, the California court allowed the phone search as a permitted warrantless search incident to booking. In Wurie, the police seized Wurie’s flip-top phone (this was 2007; it was a less smart phone than Riley’s) when they arrested him for a drug sale on the street. The phone kept receiving incoming calls from “my house.” Suspecting that Wurie was a drug dealer lying about his home address because he had drugs hidden at home, officers manipulated the phone to bring up the “my house” number. This was traced to a physical address registered to someone else. Wurie’s name was on a mailbox, though, and a woman who looked like one in the phone’s screen photo was present at the premises. Officers obtained a search warrant; when drugs and a firearm were found, Wurie was charged with additional weapon and drug offenses. The U.S. Court of Appeals for the First Circuit concluded that the Fourth Amendment’s exception to the warrant requirement for searches incident to an arrest did not allow searches of data on an arrestee’s phone because, unlike other physical possessions that could be searched incident to arrest, cell phones contained a large amount of personal data and posed a negligible threat to law enforcement interests.

Chief Justice Roberts wrote the opinion in which the other Justices joined; Justice Alito wrote an opinion concurring in part and concurring in the judgment. The rule on search-incident-to-arrest was that it was reasonable for officers to perform a search on the arrestee and the area within his immediate control, including personal property immediately associated with the arrestee, in the interests of officer safety and preservation of evidence, based on the trilogy of cases starting with United States v. Robinson, 414 U.S. 218 (1973). The rule rested both on the heightened government interests at stake in a volatile arrest situation and an arrestee’s reduced privacy interests caused by the arrest and being taken into custody. Slip op. at 15.

Likewise, in deciding whether to exempt a given type of search from the warrant requirement, the Court balanced the extent to which it intruded on individual privacy against the degree to which it was needed for the promotion of legitimate governmental interests. Unlike other physical objects like a wallet or purse, cell phones had the potential to “place vast quantities of personal information literally in the hands” of police, id. at 9–10; conversely, the stored data had little or no capacity for harming an arresting officer or effectuating an arrestee’s escape. For these reasons, the Court declined to extend the Robinson rule to warrantless searches of data on cell phones (the phone or case, however, could be used to hide a weapon like a razor and could be physically searched).

The government’s arguments on evidence lost because of remote wiping (which mostly turned on actions by third parties not present at the arrest scene) and data encryption (caused by the ordinary operation of a phone’s security features, independent of any active attempts by others to conceal or destroy evidence) were unpersuasive, not the least because neither problem was “prevalent” and could be prevented through readily available technology.

The key to the ruling was the immense storage capacity of modern cell phones and the fact that such phones are now being used by increasing numbers of people in almost every aspect of life: as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers,” as the Court pointed out, id. at 17, to shop, manage money, read, work, play, and to text, call, and e-mail back and forth (one amicus brief pointed out that a 16 GB device could hold over a quarter of a million voicemails). Twelve percent of phone users even shower with their device. Many smart phones allow for reconstructing a user’s movements, down to the minute, even down to within a particular building. A more compact and “revealing montage” of a person’s life is hardly imaginable. Id. at 20. Given the difficulty of crafting a rule that would limit cell phone searches (and take into account that phone information might actually be stored elsewhere, in the cloud), the Court rejected any exception or analogue-based rule, finding that the warrant requirement, or the more case-sensitive exigent circumstances exception, sufficiently provided for law enforcement claims of need and urgent situations. In the meantime, no doubt, the technology of personal electronic devices will continue to develop and evolve, and a rolodex may already be as much an archaic relic as an abacus.

Sophia M. Stadnyk

Sophia M. Stadnyk is a lawyer and writer with extensive experience in local government and municipal law. She is admitted to the bar in jurisdictions in the United States and Canada.