First Amendment

  • August 26, 2016
    Guest Post

    Thomas Wolf, Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law

    *This post originally appeared on the Brennan Center for Justice website. 

    Partisan gerrymandering has long befuddled the courts. Although judges have recognized the harm of the practice, they have been unable to agree on a standard for policing it. But for the second time in a year, a partisan-gerrymandering challenge has cleared a critical hurdle.

    Earlier this week, voters challenging the drawing of Maryland’s 2011 congressional map got the green light to proceed with their First Amendment claim when a panel of three federal judges voted 2-1 to deny a motion to dismiss from Maryland’s attorney general. The voters — plaintiffs in the long-running case Shapiro v. McManus — will now be able to conduct discovery in preparation for a trial. The victory gives new momentum to a case that, along with a partisan-gerrymandering challenge pending in Wisconsin, could soon be headed for the U.S. Supreme Court, where the Justices will have their first opportunity in more than a decade to decide whether partisan gerrymandering violates the Constitution.

    The panel’s opinion focuses on the legal sufficiency of the plaintiffs’ complaint, which challenges the 2011 congressional redistricting plan enacted by the Maryland General Assembly. The plaintiffs alleged the legislature deliberately used information about voters’ partisan affiliations and voting histories to flip Maryland’s Sixth District from an otherwise reliably Republican stronghold into a safe Democratic seat, all in a successful attempt to punish Republican voters for casting ballots for their party’s candidates. On those facts, the panel ruled, the plaintiffs stated a claim that could go to trial, endorsing the plaintiffs’ theory that these kinds of districting machinations violate the First Amendment.

    The First Amendment problem with Maryland’s redistricting, the panel explained, was that it diluted the plaintiffs’ votes — that is, made their votes less powerful than other voters’ — by placing them in districts where they were outnumbered and repeatedly outvoted by Democrats, and did so simply because the plaintiffs had voted Republican in the past. That dilution was an example — albeit a novel one — of the kind of retaliation for political speech and association that the First Amendment bars.

  • August 12, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    On Wednesday, August 10, the Department of Justice (DOJ) released the findings of its investigation into the Baltimore City Police Department (BPD) that followed troubling allegations raised in the aftermath of the death of Freddie Gray at the hands of the BPD in April of 2015. At that time (as well as long before and continuing to the present), there were consistent and hauntingly similar reports that the department had repeatedly and pervasively engaged in practices and policies that infringed upon the First and Fourth Amendment rights of community residents in Baltimore, and particularly residents in communities of color.

    The investigation by the DOJ found that the BPD “makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.” The DOJ report found that the BPD engages in “pattern and practice” violations of the Fourth Amendment, specifically in “focusing enforcement strategies on African Americans, leading to severe and unjustified racial disparities in violation of Title VI of the Civil Rights Act and the Safe Streets Act.”

    In addition to engaging in repeated practices of using excessive force, the DOJ investigation reported that the BPD also “interact(s) with individuals with mental health disabilities in a manner that violates the Americans with Disabilities Act.” The BPD was also found to have engaged in a pattern and practice of repeatedly violating the rights of individuals and groups that are protected under the First Amendment, including freedom of speech and freedom of assembly.

  • August 2, 2016

    By Kevin Battersby Witenoff

    In the Huffington Post, Michael Curtis reflects on the recent decision in North Carolina’s 4th Circuit Court and shares his belief that there is still hope that democratic ideas will prevail across the country.

    Citing a new report produced by the United Nations, Thaddeus Talbot uses the ACLU’s Blog to decry that our right to assembly is being eroded.

    Sarah Kliff explains that there is more to the gender wage gap than meets the eye in an article for Vox. She shares often overlooked contributions to the perpetual gap.

    In Slate, Zachary Roth highlights the recent major voting rights victories across the country and challenges us, and our courts, to go even further. 

  • February 19, 2016

    by Nanya Springer 

    In The Huffington Post, ACS President Caroline Fredrickson urges the U.S. Senate to fulfill its constitutional duty and “give fair and prompt consideration” to any Supreme Court nominee.

    ACS Director of Strategic Engagement Jill Dash comments to Paul Waldman in The Washington Post about the improbability that a new Supreme Court would immediately overturn high-profile decisions. “The four more liberal justices currently on the Court take precedent and stare decisis seriously,” adds ACS Issue Brief author Samuel Bagenstos.

    Perry Cooper at Bloomberg BNA says class actions may see a Renaissance in the near future and notes ACS Board member Erwin Chemerinsky’s prediction that Spokeo Inc. v. Robins will result in a 4-4 split decision.

    In the Emory Corporate Governance and Accountability Review, Caroline Poplin examines the pharmaceutical industry’s misuse of First Amendment doctrine, and ACS Board member Reuben Guttman, with Paul J. Zwier, examines wrongful marketing and pricing practices.

  • December 10, 2015
    Guest Post

    by Ira C. Lupu, the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle, the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (Eerdmans Publishing Co., 2014).

    Constitutional lawyers and immigration experts have offered conflicting opinions on the constitutionality of Donald Trump’s proposal to prohibit Muslims from entering the United States. Some constitutional scholars have argued that the proposal violates the Constitution. Immigration experts, including Professor Gulasekaram and others, have expressed doubt that an American court would strike down such a plan, in light of the broad authority over immigration policy that the Supreme Court has recognized in the Congress and the President.

    Prior decisions by the Supreme Court have indeed confirmed that immigration policy may rest on considerations of national origin and ancestry. But no decision by the courts has confronted an exclusion based on religion, and any such policy is constitutionally doomed.

    The reason is probably not religious favoritism, which would be fatal to any domestic policy that preferred members of one faith to others. Instead, Trump’s policy certainly offends the Constitution because it would require the government to decide who belongs to the Muslim faith.

    Imagine the process for obtaining a visa to enter the United States, as a tourist, student, or any other relevant status. The applicant completes a form. In addition to the current questions, the Trumpian form might ask “Are you a Muslim?” or it might have a broader question about faith, with boxes to check like “Muslim,” “Christian,” “Jewish,” or “Atheist.” Anyone who answers “Muslim” will be denied a visa. So far, the inquiry alone violates no constitutional norms, although the policy of denying entry to self-admitted Muslims is constitutionally questionable.

    But what happens with an applicant who comes from a predominantly Muslim country, or has a name that suggests a Muslim heritage, yet checks a box other than “Muslim?” Will the system depend entirely on the applicant’s declaration? That system would collapse.  Any Muslim who wants to enter the U.S. and is willing to deceive will do so. Now what?  For the system to work, every applicant would have to be interrogated. And what would be the relevant questions? “Do you believe that there is only one God, and his name is Allah”?  “Do you believe that the Quran is a sacred text”? The government cannot exclude someone as a Muslim unless there are criteria for determining which beliefs characterize one as a follower of Islam.

    At this point in the process, the First Amendment’s Establishment Clause kicks in with a vengeance. The Clause is in the Bill of Rights, but it does not function as an individual “right.” Instead, it imposes a limit on the character and jurisdiction of the government.  The people of the United States belong to many faiths or to none, but the government itself has no religious identity. It is secular. Congress has no power to contravene this principle, whether or not the matter involves immigration.