What Price Protest?

Posted on Categories Civil Rights, Constitutional Interpretation, First Amendment, Poverty & Law, Public, U.S. Supreme Court4 Comments on What Price Protest?

On December 1, the Wisconsin Department of Administration released new rules governing access to state facilities, including the State Capitol, for protests, rallies, demonstrations and any other “gathering of four or more people for the purpose of actively promoting any cause.” You may read the entire policy here.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.” Continue reading “What Price Protest?”

Fleeting Indecencies and Enduring Constitutional Doctrine

Posted on Categories Constitutional Interpretation, First Amendment, PublicLeave a comment» on Fleeting Indecencies and Enduring Constitutional Doctrine

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII. Continue reading “Fleeting Indecencies and Enduring Constitutional Doctrine”

The Supreme Court and the Fate of the Ministerial Exception

Posted on Categories Civil Rights, Constitutional Interpretation, Education & Law, First Amendment, Public, Religion & Law, U.S. Supreme CourtLeave a comment» on The Supreme Court and the Fate of the Ministerial Exception

In 1999, Cheryl Perich began service as a lay teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan.  A year later, she became a “called teacher,” selected by the congregation to serve as a commissioned minister and charged with duties of a more pastoral nature, such as teaching religion classes, leading the students in devotional exercises, and participating in weekly chapel functions, though continuing to teach predominantly secular subjects.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school. Continue reading “The Supreme Court and the Fate of the Ministerial Exception”

The Right to Violent Video Games

Posted on Categories Computer Law, First Amendment, U.S. Supreme CourtLeave a comment» on The Right to Violent Video Games

This week, the U.S. Supreme Court struck down a California law banning the sale of violent video games to children.  In Brown v. Entertainment Merchants Association, 564 U.S. 1 (2011), the Court held that the First Amendment right to free speech protects the video games.  As I predicted last November in a blog post on the oral argument in this case, Justice Scalia did not favor upholding the law, and indeed he wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Alito and Chief Justice Roberts wrote a separate opinion, concurring in the judgment, while only Justices Thomas and Breyer dissented.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

Continue reading “The Right to Violent Video Games”

The Morning After: Lessons From the Wisconsin Budget Battle

Posted on Categories Constitutional Interpretation, Election Law, First Amendment, Labor & Employment Law, Media & Journalism, Political Processes & Rhetoric, U.S. Supreme CourtLeave a comment» on The Morning After: Lessons From the Wisconsin Budget Battle

At last the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison.  Indeed, it was obvious to everyone that the impasse could not persist, and that the only two options available were either a compromise (unlikely) or the eventual adoption of Governor Walker’s bill intact.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.  Continue reading “The Morning After: Lessons From the Wisconsin Budget Battle”

Constitutional Rights in Action

Posted on Categories First Amendment, Wisconsin Law & Legal System2 Comments on Constitutional Rights in Action

All eyes are on Wisconsin these days.  Governor Scott Walker unveiled details of his budget repair bill on February 11; the bill itself is 144 pages, but provisions that immediately captured attention were those that remove the collective bargaining rights of most state and local employees.  By Monday, February 14, when the bill was introduced, protestors began to fill the Capitol building in Madison.  As the week went on, more and more people descended on the Capitol to protest the passage of the bill, with Saturday’s crowd topping at an estimated 68,000, 60,000 of whom flooded the Capitol grounds and square, while another 8,000 filled the Capitol building itself.  Even more were expected yesterday, which was a furlough day for many state employees.

What is happening in Madison, Wisconsin, is monumental, and I am not solely referring to the proposals contained in the bill.  What is exceptionally important here is that we are able to see the expression of constitutional rights in a most obvious way, a fact that I think has received little attention. Continue reading “Constitutional Rights in Action”

New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Posted on Categories Computer Law, Criminal Law & Process, Environmental Law, First Amendment, Intellectual Property Law, Legal Scholarship, Marquette Law School, Privacy Rights, Wisconsin Law & Legal System, Wisconsin Supreme Court1 Comment on New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests

Now available online, the recently published student comments in the Marquette Law Review cover a wide range of topics.  They include Nathan Petrashek’s comment on the impact of online social networking on Fourth Amendment privacy.  Since social networking sites like Facebook and MySpace attract both criminals (e.g., sexual predators, identity thieves) and the police who investigate them, the question whether users have a reasonable expectation of privacy in their voluntary disclosures under the well-established Katz test is poised to become a significant issue in the near future.  Petrashek relies on Fourth Amendment doctrine, as well as the First Amendment right of association and good public policy, to argue that user content should be shielded from police scrutiny in the absence of a warrant.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior.  Continue reading “New Law Review Comments Cover Social Networking, Wind Farms, Deceptive Trade Practices Act, Open Records Law, and Purchase Money Security Interests”

Speech Rights of Public Employees: Contextualizing Garcetti

Posted on Categories First Amendment, Labor & Employment Law, Legal ScholarshipLeave a comment» on Speech Rights of Public Employees: Contextualizing Garcetti

Since its recognition of the right of public employees to speak on matters of public concern in Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court has proven less than generous in protecting that right.  Of particular importance, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that if employees speak pursuant to their official work duties, they are not speaking as “citizens,” and their speech enjoys no First Amendment protection.  The holding thus substantially restricts constitutional safeguards for government whistleblowers.

Paul Secunda helpfully places Garcetti‘s formalism in a broader jurisprudential context in a new paper on SSRN, “Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.”   Continue reading “Speech Rights of Public Employees: Contextualizing Garcetti”

Most Important Election Law Decision: It’s Not Citizens United

Posted on Categories Constitutional Interpretation, Election Law, First Amendment3 Comments on Most Important Election Law Decision: It’s Not Citizens United

In late October, I had the privilege of speaking at Chapman University’s Nexus Symposium on Citizens United – article to follow. For the four of you that haven’t heard, Citizens United held that corporations may use general treasury funds to finance independent communications that expressly advocate the election or defeat of a candidate – even during times proximate to the election.

The response to Citizens United has been, in my view, overstated.  Continue reading “Most Important Election Law Decision: It’s Not Citizens United”

What’s the Difference Between Grimm’s Fairy Tales and Postal 2?

Posted on Categories First Amendment, U.S. Supreme Court5 Comments on What’s the Difference Between Grimm’s Fairy Tales and Postal 2?

The question about the difference between Grimm’s Fairy Tales and Postal 2 sounds like the set-up to a corny joke.  In fact, it was a subject discussed yesterday at the U.S. Supreme Court, where the justices heard oral argument on a first Amendment challenge to a California statute banning the sale of violent video games to minors.  The New York Times reports on a spirited question and answer exchange between the justices and attorneys for each side in the dispute. 

According to the report, the law imposes a $1,000 fine for selling violent video games to anyone under the age of 18.  Violent video games are defined as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive way,” or a way that appeals to “deviant or morbid interests” while lacking “serious literary, artistic, political or scientific value.” 

Justice Scalia’s comments and questions made it seem like he is leaning against the law, since he pointedly questioned both the definition of a “deviant violent video game,” and queried whether, since Grimm’s Fairy Tales are indeed grim, whether they, too should be banned.  Continue reading “What’s the Difference Between Grimm’s Fairy Tales and Postal 2?”

Heck and Esenberg: What’s Worse, Campaigning or Campaign Reform?

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal System1 Comment on Heck and Esenberg: What’s Worse, Campaigning or Campaign Reform?

For Jay Heck, the disease needs a cure. For Rick Esenberg, it’s doubtful there is a disease and, even if there is, the cure is worse.

If Tuesday’s “On the Issues with Mike Gousha” program at Eckstein Hall had been a meeting of foreign diplomats, the statement afterward would have described the session as “cordial but frank.”  Two of the most prominent Wisconsin voices in the debate about whether to and how to regulate money spent on political campaigning presented their views with wit and warmth, but with no masking their widely different positions.

Heck, executive director of Common Cause Wisconsin, said elections in Wisconsin and nationally had devolved over the last several decades and regulation of election spending was a matter of restoring confidence in the political system.

Esenberg, a professor at Marquette University Law School and an attorney involved in a case currently challenging regulatory plans in Wisconsin, did not accept that the damage being done by current levels of spending was so serious. Limiting free speech related to elections presents, among many things, a constitutional problem and is a bad idea that often has unintended negative consequences.  Continue reading “Heck and Esenberg: What’s Worse, Campaigning or Campaign Reform?”

Pickering Free Speech Rights and Cyberbullying by Public Employees

Posted on Categories First Amendment, Labor & Employment LawLeave a comment» on Pickering Free Speech Rights and Cyberbullying by Public Employees

Cyberbully I can’t make this stuff up.  From CNN and Anderson Cooper (with video):

For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an Internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.

Using the online moniker “Concerned Michigan Alumnus,” Shirvell launched his blog in late April.

“Welcome to ‘Chris Armstrong Watch,'” Shirvell wrote in his inaugural blog post.   Continue reading “Pickering Free Speech Rights and Cyberbullying by Public Employees”