In First Amendment Cases, Timing and Precision Matter, Even During A Pandemic

In First Amendment Cases, Timing and Precision Matter, Even During A Pandemic

Shortly before midnight on November 25, a fractured Supreme Court of the United States in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily blocked New York state pandemic rules on attendance at churches and synagogues. New York Governor Andrew Cuomo scoffed at the ruling: “It doesn’t have any practical effects.”

Contrary to Gov. Cuomo’s shrug, the Diocese of Brooklyn decision does have practical effects on government officials who draft pandemic rules and litigants who challenge them. Simply put, both rules and challenges must be as “precise and as narrow as possible.” Because the Supreme Court has just reminded courts to look for that narrow precision.

The First Amendment balances societal needs against free expression rights, even during an emergency. In a crisis, governments want to act quickly and broadly, but the courts are not going to ignore the First Amendment when governments say “trust us.” Timing and precision matter both in drafting the government’s rules and in challenging them.

Or as the Supreme Court majority put it: “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten.” And Justice Kavanaugh pointed out: “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”

To see how this works, look at three different cases, all involving Free Exercise challenges to pandemic rules: Last May, in South Bay United Pentecostal Church v. Newsom, the Court refused to block California’s rules that prohibited church attendance of more than 100 people. Last week, in Diocese of Brooklyn, the Court blocked similar rules. Three days later, in Spell v. Edwards, Justice Alito, a member of the majority in Diocese of Brooklyn, denied a church’s request to block similar Louisiana rules, without even asking for opposing briefs. Why the difference? Timing and precision in the rules and the challenges.

The basic rule at play in Diocese of Brooklyn is when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.” These complex analyses apply differently at different times: early in a crisis, when information is scarce and the need for some action is urgent, the government gets more leeway than later in a crisis when much more is known and interim steps can provide some relief even if a final remedy is not yet available.

That is the difference between Diocese of Brooklyn and other decisions that permitted governments to impose more sweeping restrictions. By now, the religious institutions challenging the rules have had months to comply with changing scientific and medical recommendations, and, according to the trial judge here (whose judgements are not easily deflected at this preliminary stage), have done an exemplary job. The Court simply told government officials that expectations of more careful and precise drafting and enforcement are growing ever stronger. The same evolution has occurred in recent cases involving protests and riots in American cities over the last few months; earlier decisions gave more deference to law enforcement, while later decisions have been more nuanced in applying the First Amendment’s right of peaceable assembly.

That careful level of precision and evidence in First Amendment questions is the principal lesson for rules drafters and challengers alike in Diocese of Brooklyn. Even briefs from the American Medical Association and other groups with statistical projections were not enough to convince the Court that the unrefuted records of plaintiffs’ compliance and lack of infections should be disregarded. And, though New York argued that it had moved those neighborhoods into a less restrictive set of pandemic rules, the state refused to say that it wouldn’t ignore that required level of precision in the future.

So, what is the required level of precision? The first rule is “don’t speculate.” In Federal Election Commission v. McCutcheon, the Court said: “we have never accepted mere conjecture as adequate to carry a First Amendment burden.” That’s hard with a novel virus, but there must be some actual evidence that the speculative justification is soundly based, not too broad, and applicable to each person or entity subject to the proposed rule. And challengers must demonstrate, with a reasonable proffer of proof, that they are outside the justification, but were included anyway.

In other words, not “let us out because we’re religious,” but “let us out because we, specifically, don’t represent the danger you are addressing.” Which was amply demonstrated in Spell v. Edwards, when the Louisiana church unsuccessfully argued an overly-broad legal theory: “The First Amendment places the decision of whether to assemble solely within the jurisdiction of the church, not the State.” Diocese of Brooklyn does not create new exemptions for religious institutions; it simply requires careful consideration of existing and new standards. Even in a pandemic.

As National Review editorialized: “all the Court does is reiterate the law. Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment the way Cuomo’s rules do.”

It is possible to draft such precise rules without unduly infringing on constitutional rights. For example, Washington state Governor Jay Inslee recently released a new restriction on medical and dental elective surgeries, which was eight, single-spaced pages long, with numerous provisions tying restrictions to specific local conditions. This rule will likely require onerous legal and medical judgments in fashioning compliance standards, but is also more likely to survive constitutional challenge than New York’s rule that exempted “big box” stores but not synagogues without considering compliance with health rules in those facilities. After Spell v. Edwards, Louisiana Gov. John Bel Edwards issued a statement pointing out how carefully he considered the effect of his proposed rule on churches.

This is not a new requirement or one limited to Free Exercise cases; on Thanksgiving Day, the Third Circuit Court of Appeals rejected the Trump re-election campaign’s challenge to Pennsylvania vote counting methods essentially because of a failure to provide specific evidence. Thus, Diocese of Brooklyn repeats what the Court has long required when governments seek emergency powers that contravene the First Amendment: “if you ask us to trust you in a crisis, we may give you more leeway in your rulemaking and enforcement at the beginning, but be very careful and precise as the crisis proceeds.”

Senate Rules Committee to Hold Hearing Nov. 18 on Nominees to Federal Election Commission

Senate Rules Committee to Hold Hearing Nov. 18 on Nominees to Federal Election Commission

UPDATE: The Senate Rules Committee will hold a business meeting at 10:00AM (Eastern time) on Thursday, December 3, which may include voting on these three nominees to the FEC. A live video stream of the meeting should be available on the Committee’s meeting page.

The Senate Committee on Rules and Administration has announced a hearing on Wednesday, November 18, 2020, to consider three nominees to the Federal Election Commission, the federal agency regulating campaign finance and activity. The hearing should be streamed on the Senate Rules Committee’s website, beginning at 10AM Eastern time.

The FEC should be comprised of six Commissioners, but since July 3 has had only three, two of whom are holdover members whose terms have long since expired and who are ineligible for reappointment. It takes a quorum of at least four commissioners to approve actions by the Commission, so the agency cannot take official positions and has lost court cases as a result. In January, members of a bipartisan group of election and advocacy lawyers, known as the First Tuesday Lunch Group, wrote to the White House and Senate leaders asking that they immediately fill the FEC vacancies.

“The inability to know how the rules apply to particular organizations or people so they can engage in what is the core protected First Amendment activity while complying with their legal obligations — it’s very frustrating,” said Beth Kingsley, a partner at Harmon, Curren, Spielberg & Eisenbeg, LLP, …

The Washington Post

One of the FEC nominees is Allen Dickerson, an active member of the First Tuesday Lunch Group of public policy lawyers and advocates, who was nominated last September. The other two nominees are Shana M. Broussard and Sean J. Cooksey, who were both announced in October.

Allen Dickerson is Legal Director of the Institute for Free Speech, where he leads a nationwide First Amendment litigation practice. Previously, he was an Associate with Kirkland & Ellis, LLP. He also serves as Captain in the Judge Advocate General’s Corps, United States Army Reserve. He received his undergraduate degree from Yale College and his J.D. from New York University School of Law.

Shana M. Broussard currently serves as Counsel to FEC Commissioner Steven T. Walther. Before this, Ms. Broussard was an Attorney Advisor at the Internal Revenue Service. While at the FEC, Ms. Broussard received the “Outstanding Performance Award” in 2011 and 2014.

Sean J. Cooksey currently serves as General Counsel to U.S. Senator Josh Hawley of Missouri, advising, inter alia, on election law. He previously served as Deputy Chief Counsel for U.S. Senator Ted Cruz of Texas, a litigation associate at Gibson, Dunn, and a law clerk for Judge Jerry E. Smith of the Fifth Circuit.

As they did in January, members of the First Tuesday Lunch Group sent a letter to the Senate Rules Committee on November 16 urging the Committee and the Senate to act swiftly on these nominations. The latest letter said:

“We represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center.  We may find ourselves in adversarial positions in the legal arena. Yet we are united in our commitment to the rule of law and the need for the agency tasked with regulating federal campaign finance laws to function fully and carry out the mission assigned to it by Congress. Today we write as individuals to urge the Senate to move quickly to restore the FEC’s ability to function.”

Letter from members of First Tuesday Lunch Group, Nov. 16, 2020

Over the weekend, the “watchdog” organization Accountable.us sent a letter to the Senate Rules Committee Chair Roy Blunt and Ranking Member Amy Klobuchar opposing the confirmation of the three nominees for the FEC. The letter asks the Rules Committee “to stop advancing these ideologically-driven nominations — and the potential nomination of any new FEC commissioner” and was picked up by Salon as “Trump and GOP rush to ‘quietly pack the FEC with partisans’ after election.” 

This characterization and others in the letter will likely come as a surprise to Ranking Member Klobuchar who strongly supports the nomination of Shana Broussard, and to the 25 other Senate Democrats who in January urged restoring the FEC quorum. As Sen. Klobuchar noted: “Democrats advanced Ms. Broussard to the White House for consideration more than a year ago.” 

And the holdup in the FEC nominations reportedly was not entirely due to the White House but also to intraparty concerns in the Senate. To its credit, the Accountable.us letter does acknowledge obliquely these negotiations when it refers on its second page to “a previously negotiated Republican-Independent pairing” which includes Broussard. 

It is possible to express concern about the direction of the FEC without inappropriate and inaccurate characterizations or personal attacks. Meredith McGee, Executive Director of Issue One and not ordinarily reticent in such discussions, for example, issued a statement asking the Committee to avoid “allegiance to ideology” but avoided casting aspersions on any nominee or their backers: “Now is not a time for pro forma confirmation hearings. Every person nominated for Senate-confirmed positions deserves rigorous scrutiny. Putting an allegiance to ideology over an allegiance to faithfully enforcing our nation’s anti-corruption laws will further jeopardize an already dysfunctional agency. When the FEC is broken, the American people lose, and senators should not forget that during next week’s confirmation hearings.”

The FEC is broken, and has been for a long time. It would help the agency if it were able to function, which is why Senators, members of the First Tuesday Lunch Group, and others have been calling for months for the confirmation of new Commissioners. But the tone and misinformation in the Accountable.us letter and echoing media coverage is not the best way to do that.

With rising calls for violence, where’s the line between protected assembly and prohibited violence?

With rising calls for violence, where’s the line between protected assembly and prohibited violence?

Is Saying “No Justice, No Peace” Protected By the First Amendment?

Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances.[1]

On July 27, Dirk DeJonge, an avowed Communist, spoke at a public meeting held at 68 Southwest Alder Street in Portland, Oregon.  The meeting was called to protest against illegal raids and shootings by Portland police. DeJonge urged the 300 attendees to resist the police.

While DeJonge was speaking, the Portland Police broke into the meeting hall, and arrested DeJonge and several others. DeJonge and others were charged with “unlawfully and feloniously presid[ing] at, conduct[ing], and assist[ing] in conducting an assemblage of persons” which advocated “criminal syndicalism and sabotage.” Criminal syndicalism” was described as “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”

The year was 1934. With some American cities exploding with riots and violence, and federal, state and local law enforcement struggling to permit free expression while preventing murders and property damage, was this the law they should apply? The U.S. Supreme Court had upheld California’s criminal syndicalism law less than ten years before.[2]

The Portland convictions went to the Supreme Court, which struck down the conviction and the Oregon statute: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental. … The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”[3]

What about the First Amendment’s limitation: “the right of the people peaceably to assemble”? Violence is never protected by the First Amendment, under any justification, even as a “political” act.

But a new report[4] finds that one-third of Americans would see violence as “justified” after the November elections “if the other side wins.” And protests across the country are increasingly violent, as protestors and counter-protestors share tactics, travel to join protests, and attack others.[5] Gabriella Coleman, an anthropologist at McGill University who specializes in online activism and social movements, told the Washington Post that the current protests are moving “the needle of what is considered a peaceful protest.”[6]

So, where’s the First Amendment line between peaceable and violent? Under both modern and traditional jurisprudence, that line is very tolerant, but fairly-well established. Protestors can advocate violence, but not incite, organize, direct, support, or engage in it. “The mere abstract teaching of the moral propriety … [of] a resort to force and violence[] is not the same as preparing a group for violent action and steeling it to such action.”[7]

 In 1969, the Supreme Court protected a Ku Klux Klan leader who was charged under Ohio’s criminal syndicalism statute for holding a meeting at which firearms were displayed, advocating a march on Congress and state capitols, and saying “it’s possible that there might have to be some revengeance taken.”[8] In 1973, the Court protected a college student who said “we’ll take the f__king street again”, because it “amounted to nothing more than advocacy of illegal action at some indefinite future time.”[9]

And in 1982, the Court found that Charles Evers’ threats of violence against those who refused to boycott white businesses was protected speech: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”[10]

Just saying “No Justice, No Peace,” seems to fit comfortably within the American tradition of forceful advocacy. It takes a further step to break the “peaceable” nature of an assembly or meeting, such as organizing for, inciting, preparing for, or supporting violence itself. “Tear down the gates”? Protected. “Here’s a crowbar”? Not protected. Stockpiling weapons or fireworks for “defensive” purposes? Not protected, and an indicator of organizing violence.

It’s the close connection between words and violent (or threatening) deeds that removes the speech or conduct from First Amendment protection. “We think speech tending to organize a riot might thus include communicating with prospective participants about logistics, arranging travel accommodations, or overseeing efforts to obtain weapons needed to carry out the planned violence.”[11]

Stated slightly differently, in the service of organizing violence, the First Amendment does not protect “concrete aid. For, by the time speech reaches the point of organizing a riot, it has crossed the line dividing abstract idea from material reality, even if its components must still be brought together, coordinated, arranged, or otherwise structured into form. In other words, speech tending to organize a riot serves not to persuade others to engage in a hypothetical riot, but rather to facilitate the occurrence of a riot that has already begun to take shape.”[12]

So what about “No Justice, No Peace”? Without more, protected. What about those rapidly-evolving additions such as “Take it to the streets!” Again, without more, protected. Writing it on Facebook? Protected.

Written on a Molotov cocktail? Not protected.


[1] U.S. Const., amend. I.

[2] Whitney v. California, 274 U. S. 357, 371 (1927) (“a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.”).

[3] DeJonge v. Oregon, 299 U.S. 353, 364 (1937).

[4] Larry Diamond, Lee Drutman, Tod Lindberg, Nathan P. Kalmoe, Lilliana Mason “Americans Increasingly Believe Violence is Justified if the Other Side Wins,” Politico, October 1, 2020, https://www.politico.com/news/magazine/2020/10/01/political-violence-424157.

[5] Marissa J. Lang, “After 100 days of demonstrations, more radical protest tactics are likely here to stay,” The Washington Post, Sept. 5, 2020, https://www.washingtonpost.com/local/protest-tactics-dc/2020/09/04/81a82cfa-ee74-11ea-99a1-71343d03bc29_story.html.

[6] Id.

[7] Brandenburg, v. Ohio, 395 U.S. 444, 446 (1969).

[8] Brandenburg, 395 U.S. at 449.

[9] Hess v. Indiana, 414 U.S. 105, 108 (1973).

[10] NAACP v. Claiborne Hardware, 415 U.S. 886, 928 (1982).

[11] U.S. v. Miselis, U.S. Ct of Appeals for the Fourth Cir., No. 19-4550, 4551, Aug. 24, 2020, slip op. at 26, https://www.politico.com/f/?id=00000174-21ba-d006-a7f4-e1bf41e80000.

[12] Miselis, slip op. at 26.

Should Campaign Consultants and Public Opinion Polls Decide Which Political Speech Receives First Amendment Protection?

Should Campaign Consultants and Public Opinion Polls Decide Which Political Speech Receives First Amendment Protection?

A Review of “Campaign Finance and American Democracy” by Professors David Primo and Jeffrey Milyo

Sometimes it’s good to look at new books that could and should become more important in the future. Like a new book on the “appearance of corruption,” which is the legal construct justifying campaign finance regulation, and should not be. The idea is that campaign contributions cause a “trust deficit” undercutting faith in government; the new book says the evidence shows they don’t. My book review just went up on the Institute for Free Speech blog
This book, by Professors David Primo and Jeffrey Milyo, isn’t available from Amazon yet, but I did buy an electronic version (pre-ordered in early July) directly from the University of Chicago Press. This paragraph pretty much sums it up:

The bottom line is this: we find that there simply is no meaningful relationship between trust in state government and state campaign finance laws during this time period. … we want to be clear that this is a major finding running counter to forty years of jurisprudence, as well as reformers’ promises and scholarly claims that reform is critical to maintaining or restoring citizens’ faith in the integrity of democracy.

[Page 137 of the book]

“One possibility for these findings is that the promises associated with reforms like Clean Elections are illusory and far exceed the realities of what changes in campaign finance law can achieve. This failure to bring about meaningful change in state politics may then leave supporters (in the case of Clean Elections, Democrats) even more disillusioned with the politics in their state.” 
In other words, campaign finance reform not only doesn’t “cure” the problem of confidence in government, it actually makes it worse. Campaign Finance Reform has been weaponized and is often used by opponents to harass. And that very fact seems to be why support for “reform” is increasing. Not only is the First Amendment negated by opinion polling, but people increasingly support Campaign Finance Reform precisely because it is an easy-to-wield weapon against political opponents. Scary!