Supreme Court Roundup Part Three: Harris v. Quinn

Posted by:
Category: Constitutional Interpretation, Constitutional Law, First Amendment, Health Care, Labor & Employment Law, Public
Leave a Comment »

the american twins 2On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the third and final blog post on the presentation.  Readers can find the first post here, and the second post here.  What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act.  As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois.  The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.”  Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong.  Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.

Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees.  Abood v. Detroit Board of Education (1977).  The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union.  Read more »

Print Friendly



Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

Posted by:
Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
Leave a Comment »

the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

Print Friendly



Supreme Court Roundup Part One: McCutcheon v. FEC

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
Leave a Comment »

Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

Print Friendly



US Supreme Court Review: Lane v. Franks

Posted by:
Category: First Amendment, Labor & Employment Law, Public, U.S. Supreme Court
Leave a Comment »

US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

This past year has been another active one for labor and employment law cases at the United States Supreme Court.  Decisions have ranged from public employee free speech to the collection of dues by public-sector unions to the fiduciary duties owed under employee benefits law when a plan fiduciary invests in company stock.   This blog post focuses on the public employee free speech case, Lane v. Franks, No. 13-483 (June 19, 2014), while two subsequent posts will discuss the labor law cases of Harris v. Quinn and NLRB v. Noel Canning, and finally the ERISA case of Fifth Third Bancorp v. DudenhoefferRead more »

Print Friendly



Ninth Circuit Rules on Free Speech Issue in Schools

Posted by:
Category: Civil Rights, Constitutional Law, Education & Law, First Amendment, Public, Race & Law
1 Comment »

clip_image002Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day.  The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009.  The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.

The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities.  The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School. Read more »

Print Friendly



Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

Posted by:
Category: First Amendment, Health Care, Labor & Employment Law, Public, Religion & Law
3 Comments »

stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. Read more »

Print Friendly



4th Cir: Liking on Facebook Is Protected First Amendment Activity

Posted by:
Category: Computer Law, First Amendment, Labor & Employment Law, Public
Leave a Comment »

facebook likeSome of you may recall a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech.  I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.

Yesterday, the Fourth Circuit made the world right again by finding that liking a candidate’s campaign page on Facebook was in fact protected First Amendment speech.

Here is the link to the 4th Circuit’s decision (2-1) in Bland v. RobertsAnd here is the pertinent language from the Court’s opinion:

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Bill Herbert has written on these First Amendment issues involving social networking by public employees in Can’t Escape from the Memory:  Social Media and Public Sector Labor Law.  The article has now been published in North Kentucky Law Review as part of the  Law + Informatics Symposium on Labor and Employment Issues.  A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU, for organizing this very worthwhile event. Read more »

Print Friendly



What Did an Ex-Girlfriend, a School District Resident, and a Company Share in Common? A Round-Up of First Amendment Cases Distinguishing “Content-Based” from “Content-Neutral” Speech Restrictions

Posted by:
Category: Constitutional Law, First Amendment, Public
Leave a Comment »

Constitution & GavelIt’s not every day that a boyfriend-girlfriend spat results in a First Amendment challenge.

The Fourth District Court of Appeals in Florida recently reviewed an appeal from an ex-girlfriend who was prevented from telling all by her ex-boyfriend’s temporary restraining order (TRO). Vrasic v. Leibel (2013 WL 85412). After they broke up, the ex-girlfriend created a website to pre-sell a book about their relationship. She also posted an excerpt containing defamatory statements about him. A lower court granted the ex-boyfriend’s demand for a TRO. The Court of Appeals reversed to the extent that the TRO prevented even defamatory speech on the theories that it was a content-based prior restraint on speech and that the proper remedy is an action for damages.

When analyzing First Amendment free speech challenges, courts first decide if the speech restriction is “content-neutral” or “content-based.” This threshold distinction drives whether a government restriction of speech deserves more exacting scrutiny by courts. The government is unlikely to prevail where the restriction is content-based. But content-neutral restrictions are less problematic and are often permissible.

Deciding if a restriction is content-based or content-neutral is a tricky matter. A content-based restriction will usually target speech directly, while a content-neutral one will affect speech only incidentally. Because the assessment is fact-specific, a review of recent cases making this determination may be the best way to shine a light on the distinction. Read more »

Print Friendly



Religious Objections to Autopsies—A Virtual Solution?

Posted by:
Category: Constitutional Law, Criminal Law & Process, First Amendment, Public, Religion & Law
Leave a Comment »

“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.

Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.

A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.

Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner. Read more »

Print Friendly



What’s in a “Like”?

Posted by:
Category: Computer Law, First Amendment, Public
1 Comment »

A big part of why I am so intrigued by social media and employment law is because of the extent of information people are willing to share with others about themselves through these mediums. One way this can be accomplished is through the “like” feature on Facebook. Facebook describes the “like” feature as “a way to give positive feedback or to connect with things you care about on Facebook.” Once someone hits the “like” button, a caption to the content indicates his or her positive affirmation.

Consumer Reports (p. 28, June 2012) recently featured the extent to which people “like” things on Facebook. A national survey of active Facebook adults revealed that over the previous 12 months, 4.7 million “liked” a page pertaining to health conditions or treatments, 2.3 million “liked” a page regarding sexual orientation, 7.7 million “liked” a page relating to religious affiliation, and 1.6 million “liked” a page pertaining to a racial or ethnic affiliation. I raise these statistics with employers when I talk about social media because  these all relate to protected class statuses under the Wisconsin Fair Employment Act, Wis. Stat. § 111.31 et seq. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.

A recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a “like” in a First Amendment context. In Bland  v. Roberts, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff’s election opponents in an election the incumbent sheriff ultimately won. Two of the plaintiffs claimed that the retaliation was due, in part, to the fact that they expressed support on the election opponent’s Facebook page. The court found the only evidence of a “statement of support” was through each individual “liking” the challenger’s Facebook page. The court found that a “like” was not sufficient speech to support the plaintiffs’ freedom of speech retaliation claim. The court explained: Read more »

Print Friendly



Reviewing John Nichols’ Uprising: How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street

Posted by:
Category: Civil Rights, Constitutional Law, First Amendment, Labor & Employment Law, Legal History, Public
2 Comments »

What is it that is swelling the ranks of the dissatisfied?  Is it a growing conviction in state after state, that we are fast being dominated by forces that thwart the will of the people and menace representative government?

Robert M. LaFollette, July 4, 1897, Mineral Point, Wis.

With that quote, John Nichols begins the first chapter of his unapologetically biased book Uprising:  How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street (2012). Nichols, The Nation’s Washington correspondent and an associate editor of Madison’s Capital Times newspaper, recounts the protests in Madison and around the state in early 2011 and analyzes their importance in renewing a spirit of protest that spread from Madison to, ultimately, Manhattan.

Just as Nichols is not an unbiased author, I am not an unbiased reader. What Nichols writes about brings back vivid memories of weekends around the capitol square, in sun as well as in snow and cold, as part of the massive, diverse, palpably energetic crowds that marched around the square in February and March 2011.  Uprising is not a chronological account of the protests; rather, Nichols organizes thematically, beginning with the beginning:  the cold mid-February day, one day after Governor Scott Walker announced his 144-page budget repair bill that contained provisions that went far beyond repairing the budget to stripping collective bargaining rights of public employees.  On that day, Nichols says, fifty members of UW Madison’s Teaching Assistants’ Association (TAA) gathered in front of UW Madison’s Memorial Union and protested (4).  Two days later, Nichols tells us, more than 1,000 TAA members marched to the capitol. They were joined each day thereafter by hundreds and then thousands of others from all walks of life – union and non-union members, public and private employees alike – and they continued marching.

How and why what fifty or so students started became an incredible historical event is chronicled in Nichols’ subsequent chapters.  Read more »

Print Friendly



Speech by Proxy

Posted by:
Category: Computer Law, First Amendment, Intellectual Property Law, Public
Leave a Comment »

On Friday I mentioned Tim Wu’s op-ed last week, which asked if machines “have a constitutional right to free speech”? The question is posed in such a way that the obvious answer seems to be “no,” so it naturally drew responses which simply pose the question the other way: Timothy Lee at Ars Technica asks, “Do you lose free speech rights if you speak using a computer?”, and Julian Sanchez suggests that Wu’s argument would effectively remove First Amendment protection from any speech communicated via a machine. Paul Levy and Eugene Volokh similarly argue that while machines obviously don’t have speech rights, the people using the machines do, and Wu’s examples (e.g., Google’s search results) are the speech of the humans who designed the algorithm behind it.

I think the distinctions here are trickier than any of these pieces, including Wu’s, let on. (Frank Pasquale appears to agree.) My own view, as suggested in my previous post, is that at least for copyright purposes, the more the machine contributes to the substance of the content, the less it is the speech of the humans behind it. But the distinction both First Amendment law and copyright impose is binary: something is either your speech or not your speech. Trying to figure out exactly where that transition occurs — even in principle — is difficult.

Let’s set up a spectrum of possibilities. So here’s the spectrum (click to enlarge):


Read more »

Print Friendly