October 31, 2015

Supreme Court Watch: Something for Everyone

Sophia M. Stadnyk

Now that the excitement has abated over the “star” cases, Obergefell v. Hodges, on same-sex marriage, and King v. Burwell, upholding the Affordable Care Act’s subsidies and exchanges, it is an opportune time to examine some of the Court’s other decisions. While these may not sparkle quite as incandescently in the constellation of the Term’s rulings, they are nonetheless worthwhile reads.

Speech Issues

The sleeper case1 this Term was Reed v. Town of Gilbert, 576 U. S. ____ (2015), involving a challenge to a municipal sign code. Sign codes tend to be complex, and the Town of Gilbert’s code was no exception. Generally, it prohibited the display of outdoor signs without a municipal permit, but exempted 23 different categories. Three of these—ideological, political, and temporary directional signs—were in issue. All three were subject to different size and durational restrictions. Reed, the pastor of a small church that held services at various temporary locations, was bound by the most restrictive of these, regarding temporary directional signs. The code limited these displays to four signs, of six square feet, for any single property at any time, and imposed a durational limit of 12 hours before the “qualifying event” and one hour after. (In contrast, ideological signs could be up to 20 square feet in size and placed in any zoning district without a time limit.)

After being cited for violations of the code, the church and Reed sued, arguing the sign code impermissibly distinguished between signs based on content and treated some messages more favorably than others. The Ninth Circuit, however, concluded that the sign code was not content-based because it made only speaker-based and event-based distinctions (that is, based on content-neutral elements of who is speaking through the sign, and whether and when an event is occurring), and tailored these restrictions to serve significant governmental interests in aesthetics and traffic safety.

A unanimous Supreme Court disagreed, ruling that the restrictions were facially content-based and failed to survive strict scrutiny because the town did not show how its distinctions between sign types furthered a compelling governmental interest and were narrowly tailored. Government regulation of speech was content-based if a law applied to particular speech because of the topic discussed or the idea or message expressed. The code’s restrictions, regardless how subtly crafted, depended “entirely on the communicative content of the sign.” Slip op. at 7. The Court clarified that a government’s bias or agreement was irrelevant when a law is content-based on its face; a “content-based regulation was subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained.’” Slip op. at 8. The First Amendment compelled the assessment of the law in operation—the abridgment of speech—rather than the motives behind such action.

The Court expressly rejected the notion that to be content-based, regulations had to censor or favor particular viewpoints or ideas. Although the First Amendment was clearly incompatible with government restrictions based on an ideology, perspective, or viewpoint, it was just as intolerant of restrictions based on a specific subject that did not discriminate among viewpoints within that subject. In this case, the town treated speech on a specific subject differently (ideological vs. political messages), regardless of whether various kinds of ideological viewpoints were themselves targeted. Accordingly, a speaker-based and event-based analysis was “mistaken on both factual and legal grounds.” Slip op. at 12. There was no support in the law for this approach, and it fell apart on closer examination. The code restrictions applied regardless of speaker identity—Reed was allowed to display larger signs if his message was ideological rather than directional; likewise, an event-based restriction would presumably allow the display of any sign within a set period.

Measuring the code against the town’s justifications, there was no evidence that temporary directional signs were more of an eyesore or traffic distraction hazard than any other signs. Alternative neutral approaches in regulating signs could be based on location (on- or off-premises), sign size, placement on public, private, commercial or noncommercial property, sign characteristics (like illuminated or “moving” signs), or imposing restrictions on “one-time” event signs.

The decision has had repercussions already and will likely have many more. Lower courts have cited Reed to invalidate a panhandling law in Illinois, a South Carolina anti-robocall law that applied to political and commercial calls, and a New Hampshire law that made it unlawful for a voter to disclose a digital or photographic copy of his or her completed ballot.2

A sign of the times case, Elonis v. United States, 575 U. S. ____ (2015), addressed 18 U.S.C. § 875(c) and threats in the context of expression on social media. That law makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” Anthony Elonis was going through a rocky patch in his life: his wife left him, taking their children, and a co-worker had made five sexual harassment reports against him. Elonis adopted a “rap-style” name and identity (“Tone Dougie”) on social media and began posting statements on his Facebook page. These included disclaimers about the fictitious nature of his posts, and he explained that this outlet was entirely therapeutic. He was fired, however, after a security officer at his workplace saw a Facebook photo and caption about another employee. This led to another, more extensive post that mocked his employer (“Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? . . . ”). Other posts commented on his estranged wife (“I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts . . . .”) and resulted in her obtaining a restraining order. That prompted another post about the judge and state police, plus one about a school shooting (“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined . . . .”). The FBI, which had been monitoring his social media page, visited Elonis. This was fodder for yet another Facebook entry (“Cause little did y’all know, I was strapped wit’ a bomb . . . I was jus’ waitin’ for y’all to handcuff me and pat me down . . . .”). Following this, Elonis was arrested and charged with a violation of 18 U.S.C. § 875(c). Elonis’s ex-wife and co-workers testified they felt afraid and perceived his posts to be serious threats.

The central issue in the case was whether a subjective intent to threaten was required. Notably, neighboring provisions in § 875 also prohibit certain types of threats, but expressly refer to a required mental state requirement or intent. At trial, the government argued Elonis’s state of mind was irrelevant, and the judge gave a jury instruction based on an objective standard (whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicated it as a serious expression of harm). Elonis was convicted and appealed on the intent issue.

In an 8–1 decision, the Supreme Court reversed and remanded, finding that, with respect to the communication of a threat, using a “reasonable person” standard reduced the culpability to negligence only, and this was insufficient to support a conviction. Although “threat” in the provision addressed what a statement conveyed and not the author’s mental state, the government took the “expressio unius est exclusio alterius canon too far” by interpreting the drafting of the section as dispensing with a mental state requirement. Slip op. at 9. The basic principle of criminal law was that “wrongdoing must be conscious to be criminal.” Morissette v. United States, 342 U.S. 246, 250 (1952). When the law was silent on intent, the court would read in the mental element necessary to distinguish wrongful conduct from that which was otherwise innocent. In this case, the mental state requirement in § 875(c) was satisfied if the defendant transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat.

Another speech case involved speech arising from a government program, and the extent to which the government could control the message. Walker v. Sons of Confederate Veterans, 576 U.S. ____ (2015), focused on government-issued specialty license plates. In Texas, as in other states, persons who want to sponsor a specialty plate may go through the state legislature or propose a design to a state board. Once the plate is approved, a person pays an additional fee to get such plates. The Sons of Confederate Veterans (SVC) group proposed a design that included a Confederate battle flag. The relevant statute allowed the board to refuse to create a new specialty plate for many reasons, including when a design “might be offensive to any member of the public . . . or for any other reason established by rule.” The board invited public comment on the SCV application and ultimately rejected the application. It advised that many citizens commented they found “the design offensive, and . . . such comments are reasonable” because the flag, in the board’s view, was associated in public perception with groups advocating hate speech. The SCV challenged this refusal on the basis that the plates constituted private speech, and the state could not open a forum for speech and then deny access to that forum based on viewpoint.

In a 5–4 decision, the Supreme Court, relying on Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (display of private monuments in municipal parks), determined that the license plates were government, not private, speech, and the state was entitled to reject the design. “[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.” Slip op. at 6.

License plates were not a traditional public or other kind of forum available for private speech. As such, the government was not constrained by the First Amendment’s Free Speech Clause and could not be compelled to place its “imprimatur” on any message. States had used license plates to communicate their logos or messages for decades, and license plate designs were often “closely identified in the public mind” with the state. The plates were a form of government ID; governments did not generally allow messages that the government did not endorse on such documents. Although Texas had hundreds of specialty plates, it had rejected other designs besides that of the SCV. These factors supported the finding that in this case, the SCV could not compel the state to communicate or convey a specific ideological message.

Fourth Amendment

Seeking to combat prostitution, many cities have enacted “hotel registry ordinances” that require hotels and motels to keep detailed records of guest information for a specified period (including the names of persons who arrive with a guest, and car make, model, and license) and to make such records available for police inspection on demand. In Los Angeles, operators alleged they were subject to searches and seizures of records by the police without consent or a warrant, when a failure to comply was a criminal offense. In a challenge to the Los Angeles ordinance, the Supreme Court, in another 5–4 opinion, held that facial challenges—those requiring a plaintiff to show that a law is unconstitutional in all of its applications—could be brought under the Fourth Amendment. Second, mandated police inspections under the ordinance (“administrative searches”) were searches under the Fourth Amendment and were facially unconstitutional because requiring operators to make registries available to police, on demand, penalized operators who declined to produce the records without first affording them an opportunity for precompliance review. City of Los Angeles v. Patel, 576 U.S.___ (2015). (Interestingly, some registry information, such as driver’s license and credit card numbers, might be protected from disclosure by federal law, but because the record-keeping requirement itself was not challenged this was not addressed.)

Clarifying the law regarding facial challenges, the majority held that “Fourth Amendment challenges to statutes authorizing warrantless searches [were] no exception” to the rule that such claims could be brought under any otherwise enforceable provision of the Constitution. Slip op. at 5. The Court’s precedents clearly demonstrated that facial challenges to statutes authorizing warrantless searches could properly be brought and, moreover, could succeed. More specifically, in evaluating such challenges, the focus was on searches that the law actually authorized, and not those that could proceed regardless of the law’s application (e.g., when there was consent, a warrant, or exigent circumstances).

Although administrative searches—those directed at a “special need” other than criminal investigations—came within an exception to a warrant requirement, such searches had to provide the subject of the search with an opportunity to obtain precompliance review before a neutral decision maker for the search to be constitutional. This allowed for a determination of whether such searches exceeded the statutory limits or were motivated by an improper purpose, before the subject incurred criminal liability for a refusal to comply. Notably, only four closely or “pervasively” regulated industries were excluded based on a substantial government interest in public welfare (liquor sales, mining, firearms dealing, and automobile junkyards), although even these were subject to some safeguards under the Fourth Amendment. Addressing police concerns that a hotel operator had time to falsify a registry if a review requirement was upheld, the Court indicated the police remained free to conduct surprise inspections based on an ex parte warrant.

Another California case, City and County of San Francisco v. Sheehan, 575 U.S. ____ (2015), examined the interplay between the Fourth Amendment and the Americans with Disabilities Act of 1991 (ADA), 42 U.S.C. §§ 12101 et seq., in the context of the use of force against dangerous suspects who may be mentally ill. Given “deinstitutionalization” and the limitations of the existing mental health system, law enforcement is increasingly burdened as a “first responder” in mental health emergencies. In this case, police were called to escort Sheehan from a group home to an evaluation facility because she had stopped taking her medication and was exhibiting disturbing behavior (she had threatened to kill a social worker, causing the home to be evacuated). When police arrived, Sheehan approached the officers with a knife, threatening to kill them. Police backed off, but returned and pepper-sprayed Sheehan, who would not let go of the knife. She was shot multiple times until an officer was able to kick the knife away. (Those appalled at the police response may find it interesting to google Mythbusters’ “Duel Dilemmas” or “Tueller Drill.”)

Sheehan survived and brought a § 1983 action alleging the officers violated the ADA and her Fourth Amendment rights. The two questions initially before the Supreme Court were whether the ADA’s Title II required law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect, and second, on liability, whether the officers were entitled to qualified immunity (whether it was clearly established that the officers violated the Fourth Amendment in failing to accommodate Sheehan’s illness, despite the dangerous circumstances).

The Supreme Court dismissed the first question as improvidently granted and held the officers were entitled to qualified immunity because they did not violate any clearly established Fourth Amendment rights. The two police entries were part of a single, continuous search or seizure, and the officers knew the “obviously unstable” Sheehan was armed and dangerous. “An entry that otherwise complies with the Fourth Amendment is not rendered unreasonable because it provokes a violent reaction,” and “no precedent clearly established that there was not ‘an objective need for immediate entry’” in this case (slip op. at 14, 15; emphasis in original). An awareness of a person’s disability did not foreclose police measures directed toward protecting officers, the public, and the affected person herself.


Are disparate-impact claims cognizable under the Fair Housing Act (FHA)? Among other things, the FHA makes it illegal to refuse to rent or sell or “otherwise make unavailable or deny,” housing to any person because of race or other protected characteristics. 42 U.S.C. § 3604(a). While this clearly prohibits intentional discrimination, what about neutral policies that lack a discriminatory intent but nonetheless have a statistically disproportionate impact on one minority group? Are such actions “because of” a person’s race? As one amicus brief phrased it, can the “ban on racial discrimination [] be violated by someone who does not engage in racial discrimination”?3

This issue came before the Court twice before, in 2011 and 2013, but both cases were settled before the Court issued a decision. While a third case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, was pending, the federal Department of Housing and Urban Development (HUD) issued a regulation on disparate impact liability under the FHA. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (2013).

This third case involved a claim by The Inclusive Communities Project, an entity that assists low-income minorities in finding affordable housing in Dallas, against the Texas Department of Housing and Community Affairs. The allegation was that the Department created or furthered segregated housing by disproportionately allocating federal tax credits for low-income housing in mostly black inner-city areas as compared to mostly white, higher-income, suburban areas. Even if done in good faith, this allegedly violated the FHA by concentrating low-income housing in minority neighborhoods.

A 5–4 Supreme Court interpreted the “result-oriented” FHA as encompassing such claims. Looking to previous decisions, the majority determined that “antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.” Slip op. at 10. As additional support, the Court pointed to 1988 amendments to the FHA. At that time, all nine circuit courts of appeal had recognized disparate-impact claims under the FHA, and Congress did nothing to invalidate these claims or address the issue beyond exemptions, which would be redundant had Congress assumed that disparate-impact liability did not exist.

At the same time, however, the majority recognized that liability under disparate impact needed to be limited to avoid the spectre of abusive litigation from undermining the entire goal of providing affordable housing or the perpetuation of race-based considerations. Pointing to a racial imbalance alone was insufficient; a disparate-impact claim based solely on statistical disparities would not be allowed absent a showing that the defendant’s policy caused or created the disparities. Moreover, the Court recognized that states, local authorities, and developers were constrained by many legitimate factors (market forces or limited regulatory discretion) in addressing the complex issue of allocating housing and housing resources. Indeed, the majority declined to evaluate the specific actions of the defendants beyond commenting that “it was difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa.” Slip op. at 20. The case was remanded for further proceedings.


In a similar “because of” scenario, in what circumstances does Title VII of the Civil Rights Act of 1964 apply to employers for failing to hire someone “because of” their religion? Title VII makes it illegal for an employer to fail or refuse to hire an individual, or otherwise to discriminate “because of such individual’s . . . religion,” when the religious practice could be accommodated without undue hardship. 42 U.S.C. §§ 2000e-2(a)(1) and 2000e(j).

In EEOC v. Abercrombie & Fitch Stores, Inc., 575 U. S. ____ (2015), Ms. Elauf applied for a sales position at Abercrombie & Fitch, a clothing store. The store stated that it does not do much advertising, relying instead on salespersons (called “Models”) to promote the store’s image and style. Abercrombie prohibits employees from wearing “caps” as part of an overall “Look Policy” for “Models.” Elauf, a Muslim, wore a headscarf to her interview. The interview followed an employer script, and no one raised religion, the headscarf, accommodation, or the cap ban, although the “Look Policy” was touched on. The interviewer, though, later contacted a higher-up to clarify whether the headscarf (which she concluded Elauf wore for religious reasons) was a prohibited “cap.” A district manager allegedly responded that the headscarf and other headwear, religious or otherwise, would violate the “Look Policy,” and directed that Elauf not be hired.

After the EEOC sued on Elauf’s behalf, the Tenth Circuit granted Abercrombie summary judgment, finding that an employer cannot ordinarily be liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with actual knowledge of a need for an accommodation. The rationale is that an applicant or employee is in a better position to know whether the conflicting practice is motivated by religion, as opposed to cultural traditions or personal preferences, and whether the person sees it as a mandatory observance.

In a decision in which Justice Clarence Thomas, a former chair of the EEOC, was the only dissenter, the Supreme Court reversed, finding that to prevail in such Title VII claims, an applicant had only to establish that her need for an accommodation was a motivating factor in the employer’s decision, and not that the employer had actual knowledge of the need. Unlike other antidiscrimination laws, § 2000e-2(a)(1) did not impose a knowledge requirement and focused on motive. To import a knowledge element was to rewrite the law. Addressing the argument that a neutral employment policy could not constitute intentional discrimination, the Court disagreed: Title VII did not mandate “mere neutrality with regard to religious practices” but gave them “favored treatment,” whereby employers had to give way to the need for an accommodation. Slip op. at 6–7. In sum, employers could not use an applicant’s religious practice, confirmed or otherwise, as a factor in their employment decisions.


In addition to the headline-grabbing decisions, this Term’s cases arguably had something of interest for everyone. Will the upcoming Term be as compelling? We’ll see.


1. Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. Times, Aug. 17, 2015, at http://www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequences.html?_r=2.

2. Norton v. City of Springfield, No. 13-3581 (7th Cir. Aug. 7, 2015); Cahaly v. Larosa, No. 14-1651 (4th Cir. Aug. 6, 2015), and Rideout v. Gardner, No. 14-cv-489-PB (D.N.H. Aug. 11, 2015).

3. Brief of Amicus Curiae of Pacific Legal Foundation, et al., at 4, available at http://object.cato.org/sites/cato.org/files/pubs/pdf/tex-dept-hca-merits-stage.pdf.

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.