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Free Speech & Election Law

Civil Rights in the United States

Sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation September 09, 09:00 AMThe Mayflower Hotel
1127 Connecticut Avenue, N.W.
Washington, DC 20036
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Please join the Federalist Society, the Cato Institute, and the Heritage Foundation on Tuesday, September 9, 2014 for a free one day conference discussing recent developments in civil rights law. Check back as more panelists are added.

Lane v. Franks - Post-Decision SCOTUScast

SCOTUScast 7-17-14 featuring Josh Blackman
Josh Blackman July 17, 2014

On June 19, 2014, the Supreme Court issued its opinion in Lane v. Franks. The question in this case is twofold: First, whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and second, whether qualified immunity precludes a claim for damages in such an action. 

Justice Sotomayor delivered the opinion for a unanimous Court, which held that Lane's truthful sworn testimony at a state representative's criminal trials was speech as a citizen on a matter of public concern, and therefore protected.  Even though the testimony was protected, however, Lane's claim against his superior Franks in Franks' individual capacity must be dismissed on grounds of qualified immunity.  The claims against Franks in his official capacity were remanded for further proceedings. Justice Thomas filed a concurring opinion, joined by Justices Scalia and Alito. The opinion of the Eleventh Circuit was affirmed in part and reversed in part.

To discuss the case, we have Josh Blackman, who is an Assistant Professor of Law at South Texas College of Law.

McCullen v. Coakley - Post-Decision SCOTUScast

SCOTUScast 7-3-14 featuring Erik Jaffe and Richard Garnett
Erik S. Jaffe, Richard W. Garnett July 03, 2014

Erik JaffeRichard W. GarnettOn June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley. This case involved the constitutionality of Massachusetts’s law regarding speech within 35 feet of an abortion clinic. The law makes it a crime for speakers other than clinic employees to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.” The questions are first whether the law violates the First and Fourteenth Amendments, on its face and as applied to petitioners; and second, whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The Chief Justice delivered the opinion of the Court, which held that the Massachusetts law violates the First and Fourteenth Amendments. The Court found that the law was content neutral but not narrowly tailored to further the government’s legitimate interests. While Massachusetts has a legitimate interest in protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets, the law burdened more speech than necessary to achieve these interests. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which Justices Kennedy and Thomas joined. Justice Alito filed a separate opinion concurring in the judgment. The decision of the First Circuit was reversed.

To discuss the case, we have Mr. Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C. and Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.

Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell - Post-Decision SCOTUScast

SCOTUScast 7-1-14 featuring Michael Moreland and Richard Garnett
Michael P. Moreland, Richard W. Garnett July 01, 2014

Michael MorelandRichard W. GarnettOn June 30, 2014, the Supreme Court issued its decision in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell. Both cases involve a challenge by small, closely held corporations to a regulation issued by the U.S. Department of Health and Human Services, often called the “contraceptives mandate,” under which companies are required to provide their employees with health insurance that covers a broad array of contraceptives, including some that may function as abortifacients. The corporations and their owners assert religious objections to this mandate, and the principal question before the Court is whether the mandate violates the Religious Freedom Restoration Act of 1993 (RFRA), which requires that the government not “substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.

In an opinion delivered by Justice Alito, the Court held that, as applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act (RFRA). Per Justice Alito, RFRA protects closely held for-profit corporations like Conestoga, Hobby Lobby, and Mandel, and  HHS’s contraceptive mandate substantially burdens the exercise of their religion. Assuming for the sake of argument that the government has a compelling interest in guaranteeing cost-free access to health care, the mandate is not the least restrictive means for the government to achieve this goal. Chief Justice Roberts as well as Justices Scalia, Kennedy, and Thomas joined the opinion of the Court. Justice Kennedy filed a concurring opinion. Justice Ginsburg filed a dissenting opinion which Justices Sotomayor, Breyer, and Kagan joined. Justices Kagan and Breyer also filed a separate dissenting opinion. The decision of the Tenth Circuit (Burwell v. Hobby Lobby Stores) was affirmed; The decision of the Third Circuit (Conestoga Wood Specialities Corp. v. Burwell), was reversed and remanded.

To discuss the case, we have Prof. Michael P. Moreland, Vice Dean & Professor of Law, Villanova University School of Law as well as Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.

Unionizing Domestic Workers?: Harris v. Quinn Decided - Podcast

Labor & Employment Law Practice Group Podcast
Samuel R. Bagenstos, Andrew Grossman July 01, 2014

Supreme Court ExteriorIs Harris v. Quinn a landmark in labor law? The case asked the Court to decide whether the First Amendment bars Illinois from compelling personal homecare providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.

Viewed narrowly, Harris is a challenge to the organization of home-care workers, asking the Court to clarify whether a state's interest in maintaining "labor peace" -- the justification for allowing government to burden workers' First Amendment rights by requiring them to associate with and support a labor union -- is sufficient in these circumstances.

But Harris also asked whether a state ever has an interest sufficiently compelling to require its own workers to speak to it through the intermediary of a labor union. It was only in 1977, in a case called Abood v. Detroit Board of Education, that the Supreme Court held that "labor peace" justifies this imposition on government employees' First Amendment rights. The Harris petitioners contend that Abood was wrongly decided and that governments never have any sufficiently compelling interest to compel their workers to support a labor union. Does the majority opinion's language on Abood signal the Court is ready to reverse it when the right case presents itself?

  • Prof. Samuel Bagenstos, University of Michigan Law School
  • Andrew M. Grossman, Associate, Baker & Hostetler LLP, Adjunct Scholar, The Cato Institute