Protecting Protesters’ First Amendment Rights, or Silently Supporting a Government’s View? Charlottesville Under the Government Speech Doctrine

By Sarah Rozek, Staff Member (Vol. 16)
November 15, 2017

Charlottesville, a city in West Central Virginia, has a population of more than 200,000. It was not, however, the city’s size, its great selection of wineries, or its world-class university which made it into the headlines this year. Rather, it was the “Unite the Right” torchlight rally, which started on a Saturday night in August, and that “would prove to be the catalyst for a horrific 24 hours in this usually quiet college town that would come to be seen by the nation and world as a day of racial rage, hate, violence and death.”

The rally was organized by white supremacists to protest the removal of the statue of Robert E. Lee from Emancipation Park in Charlottesville. The rally proved to be deadly with violent confrontations erupting between the “Unite the Right” protesters and counter-protesters. One person was left dead after a car plowed into a group of counter-protesters, and at least 34 people were wounded in the clashes. However, it was not just the protests or their deadly aftermath that captured the nation that day. News of police inaction and allegations of police’s failure to protect protesters, coupled with President Trump’s condemnation of violence on “many sides” were what left pressing questions and doubts in many people’s minds.

Some people and media sources questioned whether the police force had “stand down” orders, but Charlottesville’s Police Chief Al Thomas rebuffed these claims as false. However, given the volume and gravity of the claims and the President’s statements following the deadly events, one is left to wonder whether the police’s failure to effectively interfere and protect protesters could be considered a form of action, or in this case inaction, that qualifies as government speech and therefore, is protected from First Amendment scrutiny under the Government Speech Doctrine.

1. Government Speech Doctrine and how it Protects the Government from First Amendment Scrutiny.

Government speech is as old as our democracy; however, the Government Speech Doctrine is “relatively new, and correspondingly imprecise.” The doctrine provides that when the Government speaks, it is exempt from First Amendment scrutiny. This is logical; otherwise the Government could not function if it were subjected to attack on First Amendment grounds every time it chose one course of action over another. The U.S. Supreme Court articulated that “government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”  The Court also explained that “as a general matter, when the Government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”

The doctrine has been applied by the Supreme Court in Pleasant Grove City v. Summum, where the Government’s choice to accept or reject monuments donated by private parties to be placed in a public park was immune from First Amendment scrutiny. The Court reasoned that the choice to place a permanent monument in a park was a form of government speech not subject to scrutiny. Similarly, in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., the Court held that the Texas Department of Motor Vehicles Board did not violate the Sons of Confederate Veterans group’s First Amendment right to free speech when it denied the organization’s application for specialty license plates featuring the Confederate battle flag. The Court reasoned that specialty license plates conveyed government speech, and therefore, were protected from scrutiny. More recently, the Court in Matal v. Tam refused to extend the doctrine’s protection to the U.S. Patent and Trademark Office’s claim that trademarks are some form of government speech.

The takeaway from these cases is that, while the doctrine is relatively new, it took no time at all for various government entities to claim its protection against First Amendment attacks. This is troublesome because the Government can use the doctrine to justify a controversial position or action, and the court is willing to “establish[] a precedent that threatens private speech that government finds displeasing.” As Justice Alito warned in his dissenting opinion in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., the court categorized private speech, in that case a group’s choice of a specialty license plate, with government speech and “thus strip[ped] it of all First Amendment protection.”

The First Amendment protects the right to peaceably assemble, and it prevents government intrusion on our freedom of speech. However, if the Government takes certain actions that purportedly convey government policies or positions on a certain matter, these actions could be protected, and we “the People” would have no recourse on First Amendment grounds.

2. Would the Court Apply the Government Speech Doctrine to Police Action?

Historically, police’s excessive force was scrutinized by the courts as a violation of protesters’ First and Fourth Amendment rights. It could also be argued that the police’s choice to stay neutral was some form of protection of protesters’ First Amendment rights. However, when the Government, instead of taking proper action to protect protesters, chooses to take what seems to be a silent position, and its inaction results in violence and loss of a life, can this be tolerated as protection? What about the “chilling effects” this inaction might have in curbing future protests without fear of violence and lack of protection? And finally, can the government claim protection under the Government Speech Doctrine for its choice to stay neutral in the face of violence as a policy that is immune from scrutiny? So far, these questions remain unanswered by the courts.

It is difficult to anticipate what a court may rule if presented with the question whether police action, or inaction, could be considered some form of government speech or endorsement of a certain policy. There are also constitutional considerations, state statutes, and police rules and regulations that would come into play. However, given President Trump’s constant communication via Twitter endorsing certain views and news sources, and attacking those who dissent, there is little room needed to wonder what the current administration’s position might be. When the President speaks, the nation listens, and that includes the police force.

Protesting the Flag: The NFL and the First Amendment

By Matt Hinson, Staff Member (Vol. 16)
November 8, 2017

In August, 2016, Colin Kaepernick, former San Francisco 49ers quarterback, sat down in protest during the playing of the national anthem before a preseason game. When asked why he sat down, Kaepernick responded, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Following Kaepernick’s lead, many other players in the NFL began to kneel during the 2016 season to bring attention to the racial and social injustices still present in America today. While the protests during the 2016 season sparked significant debate, the 2017 season protests have proven to be some of the most divisive controversies the sports world has ever seen. In fact, on September 22, President Donald Trump spoke out on the issue, saying:

Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, Get that son of a bitch off the field right now. Out. He’s fired. He’s fired! You know, some owner is going to do that. He’s going to say, That guy that disrespects our flag, he’s fired. And that owner, they don’t know it. They don’t know it. They’ll be the most popular person, for a week. They’ll be the most popular person in this country.

Following President Trump’s statements, there has been a great deal of pushback from both the league and its players. In response to President Trump, the National Football League Players Association (NFLPA) Executive Director, DeMaurice Smith, issued the following statement:

The peaceful demonstrations by some of our players have generated a wide array of responses. Those opinions are protected speech and a freedom that has been paid for by the sacrifice of men and women throughout history. This expression of speech has generated thoughtful discussions in our locker rooms and in board rooms. However, the line that marks the balance between the rights of every citizen in our great country gets crossed when someone is to just shut up and play.

And, this is where the First Amendment comes into play.

The NFL

As the NFL is a private organization, the First Amendment does not protect the actions of the league players. This is not to say that the essence of free speech loses its importance; the actions the players are taking are extremely important to raise awareness of the social issues around us today. However, any action taken by the NFL or its teams against the players involved in protests would not violate the First Amendment due to the state action requirement, which makes it impossible for private parties to violate the First Amendment. Therefore, if there were to be any grounds to bring a legal claim under the First Amendment, the best option would be to bring it against the government; specifically, a claim could be brought surrounding the statements made by President Trump.

Presidential Action Regarding NFL Protests

In a recent Supreme Court opinion, the Court stated that as a general matter, the government is “entitled to promote a program, espouse a policy, or take a position.” However, the Court also went on to state, “the Free Speech clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech.” While NFL teams, which are private actors, are well within their rights to discipline players—or fire them—for protesting the National Anthem, this analysis becomes trickier if the motivating factor behind the punishments is directly related to President Trump’s statement.

If NFL teams and their owners were to be compelled by President Trump’s statement to fire their players who protest the anthem, this certainly could cross the line into the territory of a First Amendment violation. However, one question remains—what would it take to prove such an allegation? Quite frankly, it would take a “smoking gun.”

A recent tweet by President Trump could be a potential avenue. On October 10, 2017, President Trump tweeted: “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag, and Country? Change tax law!” If in the future, tax law was to change in response to President Trump’s disapproval of the player protests, it would only be a matter of time before someone initiated a First Amendment claim. If so, this could mark the beginning of a new development in First Amendment law. However, as no such potential change in tax law has been instituted, there is not much that can be done.

Where to Go from Here

As it stands now, the players will continue to protest, and teams will continue to deal with their players as they see fit. As for the President’s comments, it isn’t exactly clear whether or not he has crossed the line just yet as to illustrate government speech that constitutes a First Amendment violation—only time will tell. As passions continue to rise and players continue to protest, it will be interesting to see how far this situation may reach. While the protests are not within the scope of First Amendment protection from the actions of the NFL, the fact remains that freedom of expression and freedom to protest are two fundamental rights we as Americans believe and respect. The Constitution does not discriminate and neither should the NFL.

“Chilling” Campaign Finance Law Upheld

By Joseph M. (Max) Swindle, Notes Editor (Vol. 15)
May 25, 2016

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.

Abortion Ambiguities Remain Post-FACE Act

By Elizabeth C. Nye, Staff Member (Vol. 14)
May 13, 2016

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.”

Open Elections, Closed Polls: The First Amendment and Reporting from Polling Places

By Wills H. Citty, Staff Member (Vol. 11)
January 20, 2013

President Obama’s inauguration to a second term of office earlier this week officially marked the end of what many considered to be the most contentious, extended, and even exhausting campaign season in recent memory. When asked who is to blame for the particularly frustrating character of the 2012 elections, more than a few Americans would probably point their finger squarely at the media. The rise of 24-hour cable news, and perhaps more importantly, the ready accessibility of news on the Internet certainly has the potential to leave consumers feeling oversaturated by content and commentary.

But however you feel about the state of the news industry today, it must be admitted that media has an important role to play in maintaining a healthy democratic system of government. This role is of the highest importance every four years, when voters head to the polls to decide the political future of the country. News coverage of elections helps maintain an informed electorate, and monitors the integrity of the voting the process. In deciding the appropriate privileges to grant media members pursuing these goals, there are, as in most First Amendment cases, questions of scope.

For instance, do reporters and photographers have a First Amendment right to access polling places as part of the news gathering process? According to one United States appellate court, they do not. As reported by Politico, last week the Third Circuit of the U.S Court of Appeals found a Pennsylvania statute which prohibited anyone not in the course of voting or serving in an official function directly connected with the voting process from coming within 10 feet of a polling place did not violate the First Amendment rights of local reporters.

Though it recognized that the First Amendment does contain some independent protections for news-gathering activities, the court in PG Publishing Co. v. Aichele, noted that these privileges are “qualified and subject to limitations.” In determining whether access to polling places fell within narrowly tailored First Amendment news-gathering rights, the court looked to a trio of Supreme Court cases (The Richmond Newspapers,Globe, and Press-Enterprises cases, respectively). These cases delineate a balancing test for determining when the press should have a positive right of access to government bodies, processes and decisions. The “experience and logic” test, as it is commonly known, asks “whether the place and process have historically been open to the press”, and “whether public access plays a significant positive role in the functioning of the particular process in question.” If both prongs are satisfied, reporters enjoy a qualified privilege to monitor the activity in question. Thus, the test “balances the interests of the People in observing and monitoring the functions of their government against the government’s interest and/or long-standing historical practice of keeping certain information from public scrutiny.”

In applying the first prong test, the court looked to the American historical tradition of a closed voting process. Though public debate leading up to election day should be allowed to be robust and open, the court found the act of voting itself has been almost exclusively secret since the 1800s. Despite the fact that failure to satisfy the first prong alone prevents media members from claiming First Amendment news-gathering rights at polling places, the court continued its discussion to find that the plaintiffs also did not meet the second prong of the experience and logic test. Though it recognized that there might be some benefit to allowing reporters to gather news from inside polling locations, the court found several dispositive drawbacks from this extension of the First Amendment. Initially, the court noted that it had even been provided satisfactory evidence that there was a significant difference in the news-gathering ability of a reporter inside a polling location and one just outside the door. The judges also voiced concern that extension of the privilege to the press members in question would necessarily extend a similar privilege to all members of the media. Even beyond concerns surrounding how to define who is a member of the media and who is not, the court found that the presence of reporters at sign-in tables where voters exchanged personal information had the potential to “concern, intimidate or even turn away voters.”

The decision in PG Publishing Co. v. Aichele is perhaps best understood when viewed through the hierarchical lens which helps illuminates all free speech questions. This framework recognizes that certain types of speech is inherently more important than others, and when superior classes of speech come into conflict with those deemed inferior, the more valuable speech should be favored. Political speech has long been considered the most valuable class of speech, with voting at its core. It is unsurprising then, that the media was prevented from asserting First Amendment privilege when carrying out that privilege has the potential to conflict with voting, the end to which political speech is the means. Further, if coverage inside polling places did indeed discourage voter participation or hinder an effective and fair voting process, it would commit the dark irony of perpetrating the evil it was purported to help prevent.

Can a Bar Association Violate First Amendment Rights Through Its Dues Collection Process?

By Porsha M. Robinson, Articles & Notes Editor (Vol. 12)
November 18, 2012

In October 2012, Nebraska State Senator and Attorney, Scott Lautenbaugh, filed a class action suit against the Nebraska State Bar Association (NSBA). The suit seeks to have the NSBA’s lobbying and dues procedures deemed unconstitutional. Among the claims for relief are claims that: the collection of the dues constitute compelled speech and association, violating the First Amendment; and that the procedures implemented by the NSBA are inadequate as they do not allow members to object or affirmatively consent to the collection of dues to be used for lobbying purposes.

Membership in the NSBA is currently mandatory. The dues that are paid by members are used to provide continuing education for active lawyers, regulate the practice of law, and discipline attorneys. Along with that, the NSBA also has a “Legislative Program,” where they participate in lobbying, as well as track and take positions on bills. These activities are wholly or partially funded by mandatory member dues. Many of the bills that the NSBA had taken a position on in the past two years did not have anything to do with the legal profession, rather included topics such as: “concealed handguns, government contracts, divorce, grandparent visitation, child support, truancy, and criminal sentences.”

The First Amendment protects the counterpart of the freedom to associate and the freedom of speech; the First Amendment protects the freedom not to associate and the “freedom to avoid subsidizing group speech with which an individual disagrees.” Members of the NSBA may support some of the bills that the NSBA opposes and vice versa. For this reason, Lautenbaugh does not believe that mandatory member dues should be used for legislative lobbying or other activities (including those that may conflict with his personal beliefs). He believes that the use of his dues for this purpose constitutes government-compelled speech and violates his First Amendment rights.

The NSBA attempted to protect the First Amendment rights by adopting certain procedures. The first attempt was a one-sentence “check-off” procedure (“Lobbying Check-Off”) option on annual dues notices. It allowed members to check off if they did not want a portion of their dues to be used for the purpose of lobbying (this check off is basically assuring the members that their dues would not be used to pay outside lobbyists). The other procedure was for members who did not utilize the Lobbying Check-Off procedure. These members had access to a “Member Dues Grievance Procedure” that allowed members to challenge particular expenditures. Only one person ever took advantage of this procedure though; this may be due to the fact that an executive committee of the NSBA made the final determination in regards to the grievance. The annual dues notice that the NSBA sends out does not seek the affirmative consent of members to use their dues for political, ideological, and other nonchargeable activities.

The claim states that because members are not “being provided with an immediate rebate of, or advance reduction in, the amount of dues being spent on non-chargeable activities, and without being provided an opportunity to opt in to non-chargeable activities . . . members are being forced to associate with and subsidize the NSBA’s political speech, lobbying efforts, and other non-chargeable activities; and are otherwise deprived of their rights to free speech and free association under the First Amendment.” It also states that the procedures implemented by the NSBA are not “narrowly tailored to allow members to object to non-chargeable expenditures, in order to protect their fundamental rights to freedom of speech and association” (failing to provide safeguards known as the “Hudson requirements”). Furthermore, the claim states that there is no “opportunity to affirmatively consent to the use of their dues for nonchargeable activities.”

Lautenbaugh relies heavily on a Supreme Court case decided in June, Knox v. Service Employees International Union, Local 1000 (). In this case, a California public-employee union “charged nonmembers a fee to cover its collective-bargaining activities, but informed the nonmembers and allowed them to ‘opt out’ of the cost of the union’s political and ideological activities.” Later, in order to raise funds to oppose ballot initiatives, the union increased monthly dues, but the increase didn’t allow for an opt-out provision as before and those who initially opted out had to pay a portion of the increase (even though such increase was solely for political activities.) So basically, the union was requiring those nonmembers who objected to pay a fee in order to advance union’s political and ideological activities. The Court held that since unions have “no constitutional right to receive any payment from these employees” the general rule that “individuals should not be compelled to subsidize private groups or private speech” should prevail in this case.

It seems that the applicability of Knox will be tested in a bar association context. The difference is that Knox was in regards to a public-employee union and this case relates to lawyers and the mandate that they be members of their state bar.

Anti-Islam Ads: Hate Speech or Protected First Amendment Activity?

By Justice D. Warren, Articles & Notes Editor (Vol. 12)
September 24, 2012

According to an Associated Press article, an anti-Islam advertisement were to go on display in 10 Metropolitan Transit Authority (MTA) subway stations in New York on Monday after a federal judge in the Southern District of New York ruled that the MTA could not refuse the advertisement on the basis of its content.

The American Freedom Defense Initiative (AFDI) sponsored the ad, which read, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” The same ads recently appeared on San Francisco city buses; authorities there placed disclaimers beside the ads explaining that the city did not support the message and that all revenue generated from the ads would go to charity.

Pamela Geller, the executive director of AFDI who once headed a campaign against an Islamic center near the World Trade Center site, was the driving force behind the ad. Geller also filed suit in the District of Columbia last week to enjoin Washington’s transit system from preventing display of the ad.

“If it’s not a film it’s a cartoon, if it’s not a cartoon it’s a teddy bear,” Geller said. “What are you going to do? Are you going to reward Islamic extremism? I will not sacrifice my freedom so as not to offend savages.”

Judge Paul A. Engelmayer issued a permanent injunction of MTA’s restriction last month after granting AFDI’s request for a preliminary injunction in July. Judge Engelmayer demonstrated a clear commitment to First Amendment principles in the case:

As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict. The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space. As such, the AFDI Ad is afforded the highest level of protection under the First Amendment.

MTA refused the ad under its “no-demeaning standard,” which restricts ads that “contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”

Following the Second Circuit’s ruling in New York Magazine v. Metropolitan Transportation Authority that displays in transit systems constituted designated public forums, Judge Engelmayer applied strict scrutiny in the case, requiring that MTA have a compelling interest in blocking the ad and that the means chosen be narrowly tailored to achieve that interest. Judge Engelmayer found that, as worded, MTA’s no-demeaning standard was not narrowly tailored because it allowed advertisers to demean groups of people that are not protected under the regulation.

The ruling in the MTA case came before violent protests erupted in the Middle East in response to an anti-Islam film that was released on YouTube earlier this month. It will be interesting to see if recent events will have any effect on Geller’s request for an injunction in D.C. should the case go to court.

The Supreme Court in Brandenburg v. Ohio carved out an exception to First Amendment freedoms through a two-prong test for determining whether the speech is protected. Under Bradenburg,speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” While it seems evident that the anti-Islam film would not meet this test, it is possible that AFDI’s ad could.

The aftermath of the anti-Islam film could provide the D.C. court’s evidence that AFDI’s ad is in fact “likely to incite or produce” imminent lawless action. And, unlike the film, AFDI’s ad comes with a specific directive, encouraging viewers of the ad to “Defeat Jihad.” At a time in which global tensions are high surrounding anti-Islam sentiments, it is feasible that a court could consider the current state of affairs in determining the value of certain speech.

In the end, it is doubtful that the D.C. court would be willing to split with the Southern District of New York on this issue because the ads have appeared in San Francisco without producing “imminent lawless action” (though many artists have taken to covering up portions of the ad with their own content). Regardless of how that court decides, the debate will continue nationwide over the efficacy of providing First Amendment protection to speech that may leave certain people susceptible to violence.

Although the movie was posted on YouTube in early July, it was not until very recently that it began to garner attention outside of the U.S. Following the attack in Libya, violent protests have spread throughout the Muslim world into dozens of other countries. People are outraged not just because of the film’s mocking depiction of Muhammad but because they believe the U.S. government should have prevented the film from becoming public in the first place. Unlike many other countries where any video posted onto the Internet must initially be approved by the government, the U.S. has a long tradition of free expression that limits the government from taking any such action. Shortly after the deadly attacks in Libya, Secretary of State Hillary Clinton tried to explain the nature of the First Amendment. She clarified:

I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day. . . . In today’s world with today’s technologies, that is impossible. But even if it was possible, our country does have a long tradition of free expression, which is enshrined in our constitution and our law. And we do not stop individual citizens from expressing their views no matter how distasteful they may be.

Clinton’s remarks encompass the essence of the freedom of speech component of the First Amendment—Americans are allowed to express themselves as they wish and the government is not allowed to interfere.

Of course, there are some exceptions to protected speech. In Brandenburg v. Ohio, the Supreme Court established a two-prong test for determining whether or not speech is protected, holding that: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” Under this test, it would be difficult to prove that the anti-Islam film is not protected speech. While the film has in fact induced “lawless action” around the globe, it is unlikely that the film’s direct purpose was to spur this type of action. Even if this was the intent, the movie originally appeared on the Internet over two months ago, and it is only within the past week that violence has erupted; thus, the imminence requirement of the test would likely not be satisfied.

Deplorable as it is, the anti-Islam film is protected speech and as such, the U.S. government could not have stopped it from disseminating around the world. The takeaway from the tragic events that have taken place in the past week is that a view expressed by one man or an insignificant minority certainly does not represent the sentiment of all Americans and most importantly, that no matter how offensive free speech may be, violence is not a justified response.