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SPRING 2008 NEWSLETTER
FIRST AMENDMENT LAW UPDATE
by Joshua Skinner and John Husted
UNITED STATES SUPREME COURT
- Davenport v. Wash. Educ. Ass’n, __ U.S. __, 127 S. Ct. 2372, 168 L.
Ed. 2d 71 (June 14, 2007)
A Washington law that required that public-sector unions receive authorization
from nonmembers before spending their agency fees for election-related purposes
was a reasonable, viewpoint-neutral limitation on public-sector unions acquiring
and spending the money of government employees. It did not violate the
First Amendment.
Washington law prohibits labor unions from using the agency-shop fees of a
nonmember for election-related purposes unless the nonmember affirmatively
consents. An agency-shop agreement between a union and a government employer
entitles the union to levy a fee on employees who are not union members but who
are nevertheless represented by the union in collective bargaining, preventing
free-riding by non-union employees. The law in question is a condition on the
union’s exercise of the power, in essence, to tax government employees, by
prohibiting expenditure of nonmember’s agency fees for election-related purposes
without affirmative consent.
The Supreme Court stated that the Washington law is not a restriction on how the
union can spend “its” money; rather, it is a condition placed upon the union’s
extraordinary state entitlement to acquire and spend other people’s money.
Though content based, it does not violate the First Amendment for a state to
require that unions receive affirmative authorization from a nonmember before
spending that nonmember’s fees for election purposes.
FIFTH CIRCUIT
- Reliable Consultants, Inc. v. Earle, __ F.3d __, 2008 U.S. App. Lexis 3102
(5th Cir. February 12, 2008)
In a decision that is likely to be reheard en banc, a Fifth Circuit panel
held that a Texas statute making it a crime to promote or sell sexual
devices is an unconstitutional invasion of the privacy rights of consenting
adults under the standard set forth by the United States Supreme Court in
Lawrence v. Texas, 539 U.S. 558 (2003), the case that struck down Texas’
statute criminalizing sodomy between members of the same sex.
Texas statute prohibits the promotion (which includes selling, giving,
lending, distributing or advertising) of obscene devices. Obscene
devices are defined as any device designed or marketed as useful primarily
for the stimulation of human genital organs. The plaintiffs are
retailers of sexual devices who sell sexual devices in Texas, but apparently
market them as novelties. The plaintiffs filed suit claiming that that
the Texas statute violated the Fourteenth Amendment substantive due process
right of their patrons to engage in private intimate conduct free from
government intrusion.
Citing Lawrence, the panel held that adult sexual intimacy in the home is
violated by Texas’ sexual devices statute because its primary justification
is the upholding of “public morality” and Lawrence specifically held that
public morality is an insufficient basis for placing a burden on adult
sexual intimacy. There was a strong dissent from Judge Barksdale and
the Fifth Circuit is currently considering whether to hear the case en banc.
There is currently a split in the circuits and state supreme courts on the
application of Lawrence to anti-obscenity laws in other states.-
Jordan v. Ector County, __ F.3d __, 2008 U.S. App. Lexis 2333 (5th Cir. February 1, 2008)
In order to establish a First Amendment retaliation claim, a
plaintiff-employee must show that he or she engaged in speech on a matter of
public concern. An employee can prove that he or she engaged in speech
on a matter of public concern by establishing that he or she made “outward
signs” of political affiliation that was in conflict with the interests of
the decision-maker involved in the adverse employment action against the
employee.
When the longtime Ector County District Clerk decided against seeking
reelection in 2002, two employees in the Clerk’s office, Jordan and Morgan,
ran for the office. Morgan won. Jordan did not quit her job but
continued to give some indications that she would run against Morgan in
2006. Morgan fired her in 2005.
Jordan brought suit alleging that she was terminated in retaliation for her
2002 candidacy or her expected 2006 candidacy. The Fifth Circuit held
that her anticipate 2006 candidacy, standing alone, was insufficient to
establish that she had engaged in protected speech because she had not
actually said that she would be a candidate in 2006. However, because
Jordan ran for office in 2002 and, thereafter, gave vague indications that
she might run in 2006, there was a continuity of speech sufficient to
establish that her termination in 2005 could be connected to her candidacy
in 2002. Moreover, Jordan’s efforts to run for office in 2002 was a
matter of public concern protected by the First Amendment. The Fifth
Circuit did not, however, state whether Jordan had a right to run for office
that was protected by the First Amendment – just that her speech in
connection with her 2002 candidacy was protected as outward signs of
political affiliation.
- Pruett v. Harris County Bail Bond Bd., 499 F.3d 403 (5th Cir. August 28,
2007), cert. denied, __ U.S. __, __ S. Ct. __, 170 L. Ed. 2d 62 (2008)
A Texas statute, prohibiting bail bondsmen from soliciting individuals with
outstanding warrants violated the First Amendment, because, since the county
already routinely notified some arrestees of outstanding warrants by letter,
solicitation by bondsmen did not increase the risk of flight, retribution, or
destruction of evidence.
It had been common practice for bondsmen to send solicitations to individuals
subject to arrest warrants. Similarly, law enforcement officials
frequently send letters to petty defendants giving them notice of open warrants
against them, hoping they will turn themselves in. Two bail bondsmen
challenged a new Texas statute that restricted bondsmen from sending
solicitations to potential customers. They alleged that the statute’s
prohibition of any solicitation regarding an outstanding warrant was a denial of
their First Amendment rights. The district court granted the
bondsmen’s motion for summary judgment, holding the statute unconstitutional,
and the County appealed.
The government may ban commercial speech related to illegal activity. The
court considered the County’s asserted substantial interests, which included the
diminishment of flight risk, harm to potential arresting officers, harm to
bystanders of a potential arrest, and the potential for destruction of evidence.
Though the statute advanced the state’s substantial interests, other,
less-restrictive and more-tailored means existed. Furthermore, the County
cannot give such notice itself and then claim that restricting notice by others
is necessary to advance the stated interests. Thus, the statute was not
narrowly tailored to comply with the First Amendment, and was declared
unconstitutional.
- Baranowski v. Hart, 486 F.3d 112 (5th Cir. May 4, 2007),
cert. denied, __
U.S. __, 128 S. Ct. 707, 169 L. Ed. 2d 553 (2007)
A Texas prisoner was not denied free exercise rights under the First
Amendment and the Religious Land Use and Institutionalized Persons Act
(RLUIPA) when the prisoner retained the ability to participate in
alternative means of exercising his religious beliefs, even though the
prison failed to provide weekly Sabbath and other holy day services, failed
to allow Jewish prisoners to use the chapel for their religious services,
and failed to provide him with a kosher diet.
Baranowski, a Jewish inmate in a Texas state penitentiary, filed a civil
rights complaint against prison officials, alleging that they denied Jewish
prisoners, among other things, access to holy day services and kosher meals,
and that they discriminated against them by favoring other faiths for chapel
services, worship, and rehabilitation. The defendants moved for
summary judgment, noting that offenders are allowed to worship in their
cells and use devotional items and texts, that of the 145,000 offenders in
TDCJ, only 70 to 75 actually practice the Jewish faith, and that there is a
geographical restraint on the availability of rabbis. Further, the
prison recognizes 21 Jewish holy days, compared with two for Christians.
Providing kosher meals would put a strain on an already strained food
services system. Also, religious freedom and opportunity is allowed as much
as possible consistent with security, safety, order, and rehabilitation
concerns.
A prison regulation that impinges on an inmate’s free exercise of religion
is valid if it is reasonably related to legitimate penological interests.
The Court found that the prison official’s actions were logically connected
to legitimate penological concerns of security, staff and space limitations.
It also found that there were no easy alternatives. Further, prisoners
may practice their faith in alternative ways. Considering the
threshold inquiry under RLUIPA, the Court found that the acts of the
defendants regarding religious services had not placed a substantial burden
on the prisoner’s free exercise of his Jewish faith. Though the
unavailability of kosher meals might be a substantial burden, the prison’s
actions, directed at maintaining good order and controlling costs, involve
compelling governmental interests.
TEXAS SUPREME COURT
- HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board, 235 S.W.3d
627 (Tex. August 31, 2007)
The State of Texas impermissibly intruded upon religious freedom rights
protected by the United States and Texas Constitutions when it required
private, religious post-secondary schools to meet prescribed standards
before using the term “seminary” to describe itself or using terms such as
“degree,” “associate,” “bachelor,” “master,” “doctor” or their equivalents
to recognize attainment in religious education training.
Texas law restricts the use of academic terminology to prevent deception and
fraud resulting in substandard degrees. For instance, Texas law
restricts the use of the title “seminary,” as well as the various types of
terms of academic achievement – “diploma,” “degree,” etc. Academic
institutions must be accredited before using these terms. HEB Ministries, a
church in Fort Worth, operates a school, Tyndale Theological Seminary and
Bible Institute, founded to offer a biblical education in preparation for
ministry in churches and missions. It was not accredited. HEB
Ministries was notified that it was in violation of Texas law and it brought
suit under the United States and Texas Constitutions.
The Texas Supreme Court held that the Act violated the Establishment Clause
and the Texas Constitution as applied to a religious institution’s programs
of religious instruction. The State’s restrictions imposed on
religious training constituted an active involvement in religious activity.
The Court also concluded that the restriction on the use of the name
“seminary” by schools offering only religious programs of study, and the
restriction on the words that such institutions may use to refer to
completion of religious programs violate the Free Exercise guarantees of the
First Amendment and the Texas Constitution.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © by Fanning
Harper & Martinson P.C.. All rights reserved. You may reproduce materials
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