The Supreme Court has a chance to restore a critical right to women at work

by Marni von Wilpert, Associate Labor Counsel, Economic Policy Institute

*This blog was originally published on EPI's blog. 

In 2017, the nation has been publically discussing what many women have known privately for years —there is still a vast amount of sexual harassment and gender discrimination in America’s workplaces. The revelations about Harvey Weinstein are the latest example of predatory sexual conduct against women at work, but the list of business leaders engaging in or condoning a culture of sexual harassment at work is staggering: Fox News chairman Roger Ailes and reporter Bill O’Reilly, Uber CEO Travis Kalanick, Amazon executive Roy Price, SoFi CEO Mike Cagney, BetterWorks CEO Kris Duggan, Epic Records chairman Antonio “L.A.” Reid … even the current U.S. president has admitted to sexual assault, and referred to his own daughter in sexually explicit and derogatory terms.  

Women are also paid less than men for the same work. The disparities are even worse for women of color. Relative to white non-Hispanic men, white non-Hispanic women are paid only 76 cents on the dollar, but Hispanic women are paid only 68 cents on the dollar and black women are paid only 67 cents on the dollar, even after controlling for education, years of experience and location.

So, what can women do in the face of all of this workplace discrimination? We could take our employers to court, seeking justice through a class-action lawsuit. But it turns out, many of us probably can’t anymore. That’s because many of us have signed away our rights to go to court: 56.2 percent of private-sector nonunion employees are subject to mandatory employment arbitration procedures.

The Supreme Court heard oral arguments on October 2 in Murphy Oil v. NLRB, a case that will have significant consequences for women’s abilities to fight back against discrimination and sexual harassment on the job. In this case, the Court will decide whether workers should have to sign away their rights to take their employers to court, just to obtain, or keep, their jobs.

Forced arbitration is a tool employers use to prevent their employees from seeking justice in court when disputes arise in the workplace. Arbitration is a form of private dispute resolution in which the employer and employees submit their dispute to a professional arbitrator (usually a private lawyer), who will hear both sides’ positions and decide who wins. The arbitrator’s decision is legally binding and generally non-appealable in court—meaning, it’s final. And usually, the arbitrator deciding the dispute is chosen by the employer.

Since these clauses are buried in the fine print of employment contracts, it’s estimated that at least 60 million workers in America are subject to forced arbitration and may not even be aware of it. Because of a clause in the contract they signed to get a job, workers must accept a process they often don’t understand, where the costs of seeking justice might be far higher, even as their chances of winning or obtaining a just award of damages are reduced dramatically. That’s right—employers and employees have to pay for this service. Arbitration is like a private, for-profit court system, where the employer usually gets to pick the judge.

By signing mandatory arbitration contracts, employees are waiving their fundamental, constitutional right to a trial by a jury of their peers. And many of the employees subject to mandatory arbitration were also forced to waive their right to be part of a class action lawsuit – out of the 60 million workers subject to mandatory arbitration, employers have required 24.7 million American workers to sign away their rights to address widespread violations through class-action lawsuits. That may not seem like a big deal, but many of society’s most important legal changes came from cases fought on the public stage of the United States Supreme Court. Imagine, if the Brown v. Board of Education plaintiffs, instead of having the public forum of the Supreme Court (and the eyes and ears of the nation) had to fight their cases behind closed doors with a private arbitrator. We would never have had that landmark decision, which confronted racial animus and changed the landscape of our country’s education system.

And when it comes to fairness on the job, it matters that workers are given their day in court—even when workers lose, because the nation still pays attention. Take Lilly Ledbetter’s case, for example, Ledbetter v. Goodyear Tire & Rubber Co. When she found out that she was earning significantly less than her male colleagues for doing similar work during her nearly 20 year career at Goodyear, she fought her case all the way to the Supreme Court. She lost, because of a flawed procedural requirement in the law—namely, she did not file suit within the 6 month deadline from the time her employer first started underpaying her, even though she didn’t know at that time that she was being underpaid. As Justice Ginsburg rightly pointed out in her dissent, it can take time for employees to discover pay discrepancies, particularly when comparative pay information is hidden from them.

But because Lilly Ledbetter spoke out in open court, the nation heard her story—and so did Congress. The first piece of legislation that President Obama signed was the Lilly Ledbetter Fair Pay Act of 2009, fixing the procedural problem in the law that was keeping women from their day in court. If she had been forced into a private arbitration instead, the nation never would have heard about Lilly Ledbetter, and our federal government never would have fixed the law to help women get justice for pay disparities going forward.

Indeed, our nation’s first pregnancy discrimination law was born after women workers tried and lost a case in the Supreme Court. In General Electric Company v. Gilbert, women workers filed a class action against General Electric for pregnancy discrimination 1976, and they lost when the Supreme Court held that pregnancy discrimination was not “sex discrimination” under Title VII. But because of the open court proceeding, the nation paid attention, and Congress acted quickly to pass the Pregnancy Discrimination Act in the wake of that court case.

The increased use of forced arbitration silences working men and women, and forces us to fight our battles quietly, and alone, behind closed doors. Just ask Gretchen Carlson, and the other women at Fox News who were prohibited from joining a class action for sex discrimination and sexual harassment, because of forced arbitration clauses in their employment contracts.

Congress can fix this problem by amending the Federal Arbitration Act to make sure employers can no longer force this system on their employees—and Senator Al Franken has offered the Arbitration Fairness Act of 2017 in Congress to do just that. Maybe, someday, our Congress will do the right thing for women, for workers, and for our nation’s system of justice in open court. Working people should not have to sign away their rights to hold a job.

After the New Yorker broke the Harvey Weinstein story, social media was flooded with thousands of messages, mostly from women, who used #MeToo  to indicate that they, too, have experienced sexual harassment or assault. Unless we stop allowing employers to force workers to sign mandatory arbitration agreements, social media may be the only place left where women can join together to speak out about sexual harassment in the workplace.

An Analysis of DOJ's Brief in Masterpiece Cakeshop

by Robert Post, Sterling Professor of Law, Yale Law School     

*This blog was originally published on Take Care. 

Last month, DOJ filed an amicus brief last month in support of the petitioner in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commiss. DOJ argues that First Amendment guarantees of freedom of expression preclude the application of Colorado’s general antidiscrimination law to a boutique bakery that produces custom-made wedding cakes. The DOJ brief raises important theoretical questions about the scope of judicial review under the freedom of speech clause of the First Amendment.

I yield to no one in my support of these First Amendment freedoms. But precisely because I treasure them, I think it important properly to understand and apply them, lest they be diluted and weakened during times of actual political repression when we will need their strong and clear protection.

*  *  *

 The Colorado Antidiscrimination Act (“CAA”) makes it unlawful for persons “to refuse, withhold from, or deny to an individual or a group, because of . . . race, creed, color, sex, sexual orientation, . . . national origin, . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” CAA defines a “place of public accommodation” as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.”

CAA is typical of antidiscrimination statutes enacted in the wake of the Civil Rights Act of 1964.  The 1964 Act, which forever changed the landscape of American law, established that products and services offered to the general public could not be granted or withheld at will. Decisions to sell products or services were not to be based upon certain defined categories, like race or sex.  Because all commercial actors subject to the requirements of the Act were equally compelled to be race- or sex-blind, such decisions were drained of personal expressive significance. After the 1964 Act, the proprietor of a drug store did not signify sympathy to civil rights if he served blacks at his soda-counter. He signified only that he obeyed the law.

In the Masterpiece Cakeshop case, Petitioner offered sales and services to the public. The CAA therefore prohibited it from discriminating among its customers based upon their sexual orientation.  Among the sales and services offered by Masterpiece Cakeshop were the design and crafting of custom-produced cakes.

Jack Phillips, the owner and operator of Masterpiece Cakeshop, objected on religious grounds to same-sex marriage, and for this reason he refused to design a custom cake for the same-sex wedding of Charlie Craig and David Mullins. He also argued that his custom-designed cakes constituted speech for purposes of the First Amendment. The Colorado Court of Appeals found that Phillips’s denial of service violated the CAA and that Phillips’s conduct “was not sufficiently expressive so as to trigger First Amendment protections.”

The Free Exercise Clause, of course, concerns the authority of government to regulate conduct, like extending or withholding labor from customers, but for some reason DOJ wishes to characterize this case as essentially about freedom of expression.  It therefore argues in its amicus brief that “a custom wedding case is a form of expression, whether pure speech or the product of expressive conduct.” DOJ also contends that the requirements of CAA could not constitutionally be applied to Phillips because they would require him “to participate, through his creative expression, in an expressive event” and associate “himself with the celebratory message” inherent in a wedding. (Br. at 8)  I shall examine each of these arguments, but in reverse order.

I should begin, however, with the general observation that DOJ’s argument is fundamentally at odds with the project of antidiscrimination initiated by the 1964 Civil Rights Act.  The premise of antidiscrimination law is that arms’ length marketplace transactions are commercial conduct, not First Amendment speech.  DOJ characterizes its argument as creating an insignificant exception to this premise that will produce “only a narrow set of applications” relevant to remarkable bakers like Phillips.  (Br. At 21). But this is manifestly untrue.

*   *   *

DOJ maintains that “Colorado’s public accommodations law . . . compels [Phillips] to participate through his creation in a ceremony that is deeply expressive in both religious and secular traditions.” (Br. at 26). Apparently DOJ believes that heightened First Amendment scrutiny is necessary whenever general and otherwise valid antidiscrimination laws are applied to compel persons to take part in “deeply expressive” events they find objectionable.  In DOJ’s view, when antidiscrimination laws are applied in this way they coerce speech and thus require close First Amendment attention.

DOJ’s argument has powerful implications. Consider, for example, the application of an antidiscrimination statute to mortuaries who on ideological grounds object to serving African Americans.  Funerals are certainly events that are as “deeply expressive” as weddings. DOJ’s argument would therefore imply that undertakers should be able to invoke heightened First Amendment scrutiny to block the application of the statute. Or consider a civil rights statute prohibiting theaters and concert halls from refusing service to Hispanics.  Because theaters and concerts are “deeply expressive” events, DOJ’s argument would seem to suggest that the application of the statute should receive heightened First Amendment scrutiny. DOJ’s argument also implies that courts should apply heightened First Amendment scrutiny to an antidiscrimination statute preventing private schools from excluding Japanese students; an educational experience is certainly as “deeply expressive” as a wedding. Or consider the consequences of DOJ’s argument for laws that prohibit doctors from discriminating against Catholic pregnant women. Childbirth is certainly as “deeply expressive” as a wedding.

We could multiply such examples indefinitely. American social life is filled with events that can legitimately be characterized as “deeply expressive.” Perhaps seeking to avoid such extreme implications, DOJ seeks to qualify its claim with the thought that CAA somehow requires Phillips to participate “in the wedding celebration in a meaningful way.” (Br. at 28). But surely no one more meaningfully participates in funerals than do undertakers; no one more meaningfully participates in theatrical productions than do actors or producers; no one more meaningfully participates in education than do schools or teachers.  An attending doctor is surely a “meaningful” participant in physician-attended childbirth.

The stakes raised by DOJ’s argument are thus very high. These stakes might be worth facing if DOJ’s argument rested upon a convincing account of the First Amendment.  But it does not. A general and otherwise valid antidiscrimination law—one that is enacted for proper reasons and cannot plausibly be accused of targeting speech—is a content-neutral law that does not require persons to express any message if applied to ordinary commercial transactions.  It does not matter if persons are required to offer their goods and services in the context of occasions that others regard as “deeply expressive.”

General antidiscrimination laws forbid persons from withholding sales and services based upon certain enumerated characteristics of their customers—their the race, color, sex, creed, or sexual orientation, etc.  The premise of the Civil Rights Act of 1964 was that it did not matter whether the prejudiced owner of an inn regarded the leasing of his rooms as “deeply expressive” and personal. It did not matter if his Inn was a registered national landmark and thus carried “deeply expressive” meanings to the entire country.  Regulating decisions of public accommodations to extend service to travelers was the governance of conduct, not speech.

Modern antidiscrimination law rests on this same premise. The bigoted funeral director who is required to embalm a Catholic corpse is not thereby compelled to endorse Catholicism.  He is simply following the law. The “deeply expressive” quality of funerals is irrelevant. The bigoted school proprietor is not compelled to endorse bilingualism or Mexican identity merely because he is prevented by law from excluding Spanish-surnamed students.  The “deeply expressive” quality of the educational experience is irrelevant.

For First Amendment purposes, therefore, CAA regulates conduct, not speech. Landlords, funeral directors, and school proprietors are of course constitutionally protected if they wish to protest antidiscrimination laws or to advocate for their repeal. But they are not free to violate the law on the ground that disobedience itself constitutes protected speech. One might as well say that someone who drank to protest Prohibition, or who now uses marijuana to protest drug laws, is engaged in the kind of expressive conduct that triggers heightened First Amendment scrutiny.

Like the 1964 Civil Rights Act, CAA does not require Phillips to affirm or reject any creed or idea. It simply prevents Phillips from discriminating against customers based upon their sexual orientation.  The fact that customers incorporate Phillips’s cakes into their own “deeply expressive” events is irrelevant.  If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings--furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.

Any such conclusion would create an exception to antidiscrimination law that was far from “narrow.”  It would in fact rip the guts out of any effort to establish equality in the commercial marketplace.

Fortunately, we need not embrace this conclusion, for it rests on the mistaken premise that CAA compels speech from commercial actors involved in “deeply expressive” events.  DOJ concedes, as it must, that “whether governmental compulsion creates an association with an unwanted message depends on a reasonable observer’s perception of the relevant expression.” (Br. At 20).  But compliance with the legal obligations of CAA conveys no message other than obedience to law.

For all his customers know, Phillips might be a Holmesian “bad man” who complies with CAA only to avoid the price of legal penalties. Of course it might also be the case that Phillips wholeheartedly endorses CAA and its objective of equality. Phillips’s customers, as well as the reasonable observer, have no way of confirming one conclusion or the other.  All they know is that Phillips obeys the law. They thus cannot associate any particular message with Phillips’s refusal to discriminate among his customers. CAA itself certainly does not contemplate or require that commercial actors who offer services to the general public embrace or adopt customers’ messages as their own.  CAA demands only compliance with the law’s requirements.

This is all so plain that one is tempted to imagine that DOJ’s actual objection to CAA might be that it violates First Amendment rights of association by requiring commercial actors to deal with persons or events whom they would rather avoid.  This objection, however, applies to all antidiscrimination laws in all contexts. Objections of this nature were raised during the debates surrounding the enactment of the Civil Rights Act of 1964, but we are now hopefully long past the day when commercial actors can claim First Amendment rights of association in the context of the public marketplace.  It should go without saying that all such claims are fundamentally inconsistent with the very project of prohibiting discrimination.

*   *   *

 We should turn, therefore, to DOJ’s first and seemingly more appealing argument that the application of CAA to Masterpiece Cakeshop triggers heightened First Amendment scrutiny because “a custom wedding cake can be sufficiently artistic to qualify as pure speech, akin to a sculptural centerpiece.” (Br. at 24).  This is a strange and bold claim, and so it is not surprising that DOJ hedges its bets by adding that “even if a custom wedding cake is not pure speech, Phillips’s act of designing and creating the cake is at least expressive conduct,” because it “involves both a subjective intent to convey a message that will be understood by those who view the final product and a significant likelihood that the message will be understood by those who view the final product.” (Br. at 25)

Most persons do not think of cakes as “pure speech.” They instead consider cakes to be created objects, like chairs or tables. DOJ concedes that its argument does not apply to “transactions involving pre-made or off-the-shelf products.” (Br. at 22). But Phillips creates custom cakes, and DOJ proposes that the First Amendment comes into play with respect to products or services that are “inherently communicative” because they involve “active participation in an expressive event.” (Br. at 21).

Throughout its brief, DOJ insists that Phillips is not just any baker.  His creations are unique insofar as he uses flour and other ingredients to express specific messages designed in consultation with his clients.  DOJ analogizes Phillips to an artist who constructs specific cakes to convey the particular wishes of particular patrons. DOJ considers Phillips’s relationship to his work to be so unusual that his First Amendment challenge to CAA will only “rarely” be generalizable to other commercial actors. (Br. at 21).

DOJ is incorrect to assert that applying heightened First Amendment scrutiny to Phillips will constitute a narrow constitutional exception to antidiscrimination law.  Many, many vendors work closely with customers to create expressive goods and services. Phillips is no different than a carpenter who consults with clients to produce comfortable chairs that express their vision of elegant hospitality.  He is no different than a house painter who consults intensely with clients to produce the precise color that will convey the mood of subdued tranquility his clients wish to establish in their bedroom.  He is no different than a tailor who confers with clients to determine the fit and fabric required to convey the precise shade of sophistication his clients wish to display.  He is no different than a chef who discusses with clients how the preparation of food will subtly communicate the right quality of unostentatious complexity and virtuosity. He is no different than a florist who is asked to create an arrangement that conveys tasteful exoticism. He is no different than a jeweler whose client requests that he fashion earrings that express an unusual acquaintance with ancient Egyptian sarcophagi.

Such examples are endless. This is because DOJ characterizes Phillips in a manner that makes him what we would call an “artisan” (as distinct from an artist).  The commercial marketplace contains innumerable artisans.  Because CAA contains no exceptions for artisans who offer services to the general public, they cannot withhold their labor based upon the categories enumerated in the act. DOJ is thus advocating for an exception that is in fact quite broad.

At some points in its brief, DOJ seems to imply that the application of CAA to Phillips deserves heightened First Amendment scrutiny because Phillips’s cakes are “pure speech” or “expressive conduct.”  But this conclusion is careless and incorrect, because many content-neutral laws of general application apply to “pure speech” without raising the alarm of heightened First Amendment scrutiny. General tax rates are applied to movies, magazines and novels without creating First Amendment incident. General safety regulations are applied to concert halls and theaters without close First Amendment scrutiny.  Heightened First Amendment review is not triggered when general labor laws govern the status of museum employees. Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983).

All agree that CAA is a general, content-neutral law.  It may thus also be applied to “pure speech” without triggering elevated First Amendment scrutiny. Consider the work of commercial Denver law firms in which lawyers produce “pure speech” by authoring briefs, opinion letters, reports, and so on. It seems plain enough that CAA can apply to commercial Denver law firms without triggering heightened First Amendment scrutiny.  The First Amendment will provide no defense to commercial Denver law firms who wish to hire and fire employees based upon race, sex, creed, and sexual orientation. Or consider the Denver Symphony Orchestra. It also engages in “pure speech,” and yet it is subject to CAA and may not discriminate against musicians based upon the status categories enumerated in the statute.  DOJ’s argument would imply that the Denver Symphony Orchestra ought to have a First Amendment defense were it to decide to discriminate against women violinists.

It is difficult, therefore, to make sense of the precise nature of DOJ’s argument. The most sympathetic reconstruction I can make of DOJ’s position is that it takes the form of a syllogism.  The major premise of the syllogism is that Phillips’s custom-made cakes convey a meaning (jointly worked out with Phillips’s clients). The minor premise is that the application of CAA to Phillips’s cakes alters the message conveyed by his cakes in a manner that compels Phillips to speak in a way that we would rather avoid. Taken together, these premises lead to the conclusion that CAA’s application to Phillips’s custom-made wedding cakes raises First Amendment questions of compelled speech that require elevated First Amendment scrutiny.

If this is in fact DOJ’s argument, it is not sufficient to establish the major premise and characterize Phillips’s cakes as “pure speech.” It is necessary also to establish the minor premise, which is that the application of CAA affects Phillips’s own speech in a manner that requires elevated First Amendment scrutiny.

There are in fact cases in which the minor premise of DOJ’s syllogism holds. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), for example, the Court considered the application of an antidiscrimination law to a privately organized St. Patrick’s day parade in Boston.  The parade organizers had refused to permit Irish LGBT marchers to participate in the parade, and a state court had concluded that this refusal violated a general Massachusetts public accommodations law. The Supreme Court reversed, because the parade was meant to make “some sort of collective point” (568) and requiring parade organizers to include marchers who wished to express an unwanted message would “alter the expressive content” of the parade. (572)

It is important to be clear that the minor premise of DOJ’s argument does not hold merely because CAA is applied to what DOJ calls “pure speech.”  The minor premise holds in Hurley because reasonable observers would attribute the meaning of the LGBT marchers to the parade organizers.  But consider the application of CAA to commercial Denver law firms. No reasonable observer would infer that these firms endorse same-sex marriage from the fact that they comply with CAA.  CAA does not interfere with any message that the firms seek to send to their clients. Similarly, the application of CAA to the Denver Art Museum does not trigger heightened First Amendment concerns because no reasonable observer would infer that the museum endorses same-sex marriage from the fact that it complies with CAA. CAA does not interfere with any message that the museum might wish to communicate.

In the specific context of Masterpiece Cakeshop, the minor premise of DOJ’s syllogism does not hold. The Massachusetts parade organizers in Hurley sought to communicate their own message through their own parade, but Phillips is by contrast an artisan whose wedding cakes are not understood as expressing the personal messages of Phillips himself.

The point can be nicely illustrated by considering commercial sign painters. Such painters professionally produce what DOJ characterizes as “pure speech.”  CAA applies to such painters, who are, like Phillips, artisans. If CAA were to prohibit a biased commercial sign painter from refusing to accept the commission of a client seeking to produce a sign announcing Welcome to an Evening Service at the Denver First African Baptist Church, no one would read the resulting sign as conveying the personal greeting of the painter, even though his labor materially influenced the communicative properties of the sign by designing its calligraphy, presentation, and so on.  In contrast to Hurley, the message conveyed would be understood as the client’s message and not the painter’s own effort autonomously to communicate to the public.  Those who actually knew the painter to be a prejudiced man would at most conclude that he had been prohibited by CAA from choosing clients based upon race. The “deeply expressive” quality of the religious service announced in the sign is irrelevant.

Like the commercial sign-painter, Phillips is not compelled by CAA to express any message that is attributable to him personally.  For reasons I have already stated, the reasonable observer can conclude from Phillips’s cakes only that he has been required to comply with CAA.  For constitutional purposes, therefore, the message conveyed by his cakes are attributable to his clients, not to Phillips. Because the minor premise of DOJ’s syllogism fails. heightened First Amendment scrutiny is inappropriate.

*   *   *

To apply elevated First Amendment review in this case would, moreover, potentially cause great damage to our precious rights of freedom of expression.

In its first great decision explaining the nature of freedom of speech, the Court asserted in in Stromberg v. California (1931) that “[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”[1]

A decade later, in what deserves to be celebrated as one of the great articulations of fundamental First Amendment principles, the Court in Thornhill v. Alabama affirmed: “Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth.  Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion.  Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government.”[2]

From the very beginning, therefore, the First Amendment has been understood to protect freedom of expression in order to safeguard the capacity of persons to participate in the formation “of that public opinion which is the final source of government in a democratic state.”[3]  The First Amendment allows us to govern ourselves.  It is, as the Court has put it, the “guardian of our democracy.”[4]

If that guardian is to remain strong and sure-footed, we need to reserve heightened First Amendment scrutiny for occasions when core First Amendment values are threatened.  We do not debate and articulate the meaning of current events through the medium of wedding cakes.  We do not carry on national debates through the medium of flowers, cooking, jewelry or furniture.  Artisans are in this respect different from artists, who are rightly regarded as principal participants in these debates.

No doubt the contents of public opinion are affected by how our bread is baked, how our food is cooked, how our jewelry is designed, how our houses are painted, how our chairs are carved, how our flowers are arranged, and so on.  We know that what we think is affected by everything we do and experience. But this does not imply that the regulation of everything that we do and experience requires heightened First Amendment scrutiny.

No doubt all artisanal work is expressive.  But almost all human activities are expressive, in one way or another. It is actually difficult to identify human actions that have been so drained of human meaning that they can be characterized as merely mechanical. Even a bakery that sells only off-the-shelf products chooses which products to sell and which customers to serve, and these decision convey meaning.  To key heightened First Amendment scrutiny to the expressive properties of human action is thus to risk stretching the First Amendment to encompass everything, which means that it will protect nothing. It could deeply demoralize and endanger our precious First Amendment rights.

It is for that reason that heightened First Amendment scrutiny has typically been reserved for laws that distort meanings conveyed in what the Court has called “media for the communication of ideas,” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952), in which participants are understood to be self-consciously seeking to address public ideas and matters.  See Robert Post, Recuperating First Amendment Doctrine, 47 Stanford Law Review 1249 (1995).  The Court in Hurley was quite explicit that parades constitute an example of such a “medium[] of expression.” (569). It is equally clear that baking is not such a medium.

Because CAA has none of the other properties that sometimes trigger heightened First Amendment scrutiny, such as an improper purpose, the effort of DOJ to transform this case into a freedom of speech decision thus threatens the integrity of our First Amendment rights and should be rejected.

 

 

[1] Stromberg v. California, 283 U.S. 359, 369 (1931).

 

[2] Thornhill v. Alabama, 310 U.S. 88, 95 (1940).

 

[3] Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.), rev’d , 246 F. 24 (2d Cir. 1917).

 

[4] Brown v. Hartlage, 456 U.S. 45, 60 (1982).

 

 

Taking a Knee or Saluting the Flag

by Reuben Guttman, Founding Member, Guttman, Buschner & Brooks PLLC

*This piece was originally published on Huffington Post.

As President Donald Trump takes on the National Football League (NFL) and challenges players for kneeling during the national anthem, I am reminded of two athletes who made headlines four decades ago but whose names have perhaps faded from the American psyche.

It was the fall of 1968. Martin Luther King and Bobby Kennedy had lost their lives to assassin’s bullets earlier in the year. Across the nation, college campuses were fraught with unrest from antiwar and civil rights protests. A strong showing by upstart candidate Eugene McCarthy in the New Hampshire primary forced the withdrawal of incumbent President, Lyndon Johnson, in his race for re-election. The nation was one month away from the Nixon Presidency.

In Mexico City, on October 12, the Olympic torch was lit with games presided over by Avery Brundage, an American who chaired the International Olympic Committee (IOC). Brundage, of course, had served as U.S. Olympic Committee Chairman during the 1936 Olympics in Berlin, resisting an American boycott of those games. The 1936 Olympic team had two Jewish runners – Sam Stoller and Marty Glickman – who were slated to run in the 4 x 100 meter relay. They were pulled from the event at the last minute.

Thirty-two years later, prior to setting sail on his 200-meter race in Mexico City, one runner – Tommie Smith – made clear that if he won in Mexico City, he did not want to receive a medal from Brundage. Smith did win, securing a gold medal. His teammate, John Carlos, won the bronze medal in the 200 meters. Standing on the platform as the National Anthem played, Smith and Carlos bowed their heads and raised their black gloved hands in a black power salute with an image now etched in the American psyche. For his part, Brundage – true to form – ordered Smith and Carolos to pack their bags and banned them from Olympic competition.

I remember that image and I remember Tommie Smith. Years later when I had a talk show on my college radio station, WRUR in Rochester, New York, I had Smith on my show. By that time, about 1980, Smith had become a member of the National Track and Field Hall of Fame. For a person who had made national headlines and seemed to rile at least a segment of the nation years earlier, Smith was low key, thoughtful and passionate. He impressed me as someone who appreciated that the elegance of our rule of law is that it is continually a work in progress with protest – as protected or otherwise inspired by the First Amendment – being the driver, delivering change where necessary to achieve fairness and a more even-handed rule of law.

As President Trump calls for a compelled allegiance to the flag in a form consistent with his purported values, I cannot help but think about Tommie Smith. I wonder whether by kneeling, or raised fist, or locked arms, the individuality by which we salute the flag – whether by protest or traditional means – is perhaps the highest honor that we can bestow on our democracy. Of course, while honoring the flag also means remembering and honoring those who gave their lives to protect our democracy, it cannot be forgotten that, among the things that our nation has fought to protect, is the right to peacefully voice dissent. The ability to do so without fear of repercussion is what has already made America great.

 

The Truth About the Administration’s Anti-Sanctuary Campaign

by Pratheepan Gulasekaram, Professor of Law, Santa Clara University

Last week, Attorney General Jeff Sessions issued a “last chance” warning to several “sanctuary cities.” The letters - sent to Cook County, Illinois; Chicago, Illinois; New Orleans, Louisiana; New York, New York; and Philadelphia, Pennsylvania – informed local officials that their policies regarding investigation of an individual’s immigration status, or their reporting of the same, may be in violation of federal law. Further, if they do not provide additional assurances that they are in compliance with the specified federal law by October 27th, they risk losing certain law enforcement grants (Byrne/JAG funds) that the Department of Justice (DOJ) administers to localities to augment their policing, equipment, prosecution, corrections, drug treatment plans, victim or witness programs, or other related efforts. 

These ominous letters, with accompany rhetoric from the Attorney General, continue the Trump Administration’s months-long campaign against cities that have exercised their constitutionally-protected prerogative to decline participation in federal immigration enforcement efforts. As has become routine for Sessions, this latest round includes the same misrepresentations linking immigrants and criminality that he and the President have consistently spewed, with the Attorney General repeating the falsehood that sanctuary policies make cities more dangerous.

In addition to having to rely on unsupportable claims linking immigrants to systemic public safety threats, it is also telling that the DOJ is forced to undertake this crackdown through administrative fiat, rather than with broad congressional support. Indeed, the executive branch has been forced to go it alone precisely because it has not been able to get federal legislative backing for its heavy-handed approach to sanctuary cities. Sessions himself is no stranger to these failed legislative efforts, having introduced an anti-sanctuary measure in 2005 as part of a homeland security bill when he was a Senator. More recently, Republican House members have introduced bills that might strengthen the Administration’s ability to conscript state and local governments and institutions in the manner proposed by Sessions, but all have failed to pass both houses or make it out of committee. This lack of urgency would seem odd if reality was even close to as the dire picture painted by Sessions and Trump: A state of lawlessness and rampant criminality in our cities, fueled by the presence of unauthorized immigrants.

Not surprisingly, the Administration’s unilateral anti-sanctuary crusade has suffered defeat after defeat in courts. A few courts have now held that localities violate the Constitution when they hold noncitizens solely for immigration purposes, thereby limiting the Administration’s attempts to force jurisdictions to honor federal immigration detainer requests. Further, in suits by San Francisco and Santa Clara counties, a federal district court ruled that Trump’s vague threat to strip away unspecified federal funding from cities that maintained non-communication and anti-detainer policies was unlawful. Even after Sessions attempted to narrow the scope of the federal grants at issue by issuing a DOJ memorandum, that court declined to change its order or the scope of its injunction. More recently, in a suit by the city of Chicago, another federal district court enjoined the DOJ’s implementation of any new conditions on the receipt of Byrne/JAG funds. Specifically, the court rejected the DOJ’s unilateral attempt to add “notice” and “access” conditions, which would have required local authorities to notify federal authorities about the release date of immigrants in their custody, and required localities to provide immigration authorities access to local correctional facilities.

Last week’s letter to the five jurisdictions relies on the one part of the DOJ’s plan that the Northern District of Illinois opinion left in place, pending further litigation: That court did not preliminarily enjoin the ability of the DOJ to require compliance with 8 USC 1373 as a condition of receiving Byrne/JAG funds. Section 1373 is a prohibition on a prohibition; it is a federal law that prevents states and localities from stopping voluntary communication between their officers and the federal government on immigration status or citizenship of individuals. The provision has no remedy or penalty attached as part of its text, and has, until recently, only been used to preempt conflicting local law.

The DOJ’s current attempt to specify compliance with § 1373 as a condition of receiving federal grants will certainly be challenged and will provide federal courts an opportunity to opine on the underlying constitutionality of § 1373 and the DOJ’s unilateral attempt to leverage it. Although I do not address those concerns here, others have argued that the DOJ’s attempt to use § 1373 in that manner may be unconstitutional as a matter of anti-commandeering, Spending Clause, and separation of powers principles. Indeed, even the Illinois district court, in leaving the DOJ’s use of § 1373 intact, suggested reasons why a higher court might find the provision unconstitutional.

Moreover, even if § 1373, and the DOJ’s conditioning of Byrne/JAG grants on compliance with it, are both ultimately upheld in court, very little may turn on it. As I have written before for this blog, the overwhelming majority of state and local sanctuary policies do not institute gag orders for their officers and thus do not violate the provision. Most sanctuary policies instead limit information collection during investigations or arrests, or limit the use of local resources for such communications. The DOJ admitted as much last year when it responded to Representative John Culberson’s (R-TX) letter asking the DOJ to look into § 1373 violations. Thus, the DOJ’s recent warnings may turn out to be more bark than bite, even if courts ultimately give § 1373 - and the DOJ’s leveraging of it – a generous interpretation.

Beyond the losses in court, the current state and local legislative landscape suggests that the Administration’s anti-sanctuary crusade is backfiring. Rather than breaking the will and budgets of localities, Sessions’ efforts have pushed states and cities to dig in their heels, passing non-cooperation and anti-detainer policies that are broader in scope and clearer than before, and undertaking litigation that has repeatedly chastened the Administration’s tactics. Indeed, city policies that arguably run afoul of § 1373 may be the least of Session’s concerns come January, when California’s SB 54 – the state sanctuary act – goes into effect. The “California’s Values Act” creates statewide prohibitions on certain types of cooperation with federal authorities, and signals the state’s clear intention to oppose any heightened federal enforcement efforts. Perhaps more importantly, as I have recently detailed in a co-authored draft article (“Sanctuary Networks”, with Professor Rose Villazor), the Trump/Sessions anti-sanctuary campaign has galvanized a host of non-governmental forms of sanctuaries from a variety of institutions and organizations. These educational institutions, employers, social network groups, and religious organizations cannot be coerced and bullied by the threat of removing DOJ grants.

The reality is that while immigrants generally, and sanctuary policies specifically, do not present the public safety threats claimed by the Administration, the existence of sanctuary cities and institutions do discredit the legitimacy and truthfulness of Trump’s campaign promises and nativist misrepresentations promoted by immigration ideologues like Sessions. The emerging policy and judicial responses to these types of crackdowns suggest that sanctuaries are not only here to stay, but that they are expanding and becoming more resolute.

Obstruction of Justice Case Against Trump Only Scratches the Surface

Last week’s comprehensive paper from the Brookings Institution analyzing the case for obstruction of justice against President Donald J. Trump makes a compelling case that the President has violated the law. The report takes a deliberately narrow focus, and it likely just scratches the surface of the investigation being conducted by Special Counsel Robert S. Mueller, III.  Mueller will no doubt want to conduct a complete investigation to learn the broader picture of Russian involvement in the 2016 election, so that if there is a case for impeachment, even the Republican-controlled House of Representatives will be unable to ignore it.

The Brookings paper, produced in partnership with Citizens for Responsibility and Ethics in Washington (CREW), provides an in-depth analysis of the facts known to date. The paper concludes that “the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey.”  In 108 pages, the report documents some of the key facts that are publicly known that support a conclusion of criminal intent, such as Trump’s asking Comey for his loyalty, clearing the room before telling Comey he hoped that the FBI could let the Flynn investigation go, asking Daniel Coats, Director of National Intelligence, to persuade Comey to stop investigating Flynn, firing Comey, and then providing shifting explanations for the firing.  While additional facts are likely already known and will become known to Mueller as the investigation proceeds, the facts documented in the report alone make a persuasive case that Trump could be charged with obstruction today.

Of course, Mueller has a far broader mandate than just investigating obstruction of justice. As outlined in his appointment order, Mueller’s mission is to probe three things: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) “any matters that arose or may arise directly from the investigation,” and (3) “any other matters within the scope of 28 CFR 600.4(a).” This last section authorizes Mueller to investigate federal crimes committed to interfere with the investigation, such as perjury or obstruction of justice.

The obstruction charge is likely only a small piece of the bigger puzzle that Mueller is trying to put together.  If Mueller is able to make the case for obstruction, he is not likely to stop there.  For example, some very serious concerns have emerged about the use of social media by Russian interests to influence the election. Mueller’s mandate would certainly include exploring whether Russian actors had any assistance from members of the Trump campaign regarding geographic areas to target and issues to exploit.

In addition, other facts have emerged regarding significant financial ties between Russia and former Trump campaign chairman Paul Manafort. A recent report alleged that Manafort offered in an email message a private briefing on the campaign to a Russian oligarch. Mueller will want to explore potential violations of campaign finance laws, which are designed to keep foreign money out of American elections. He may also be considering charges under the Foreign Corrrupt Practices Act, which makes it a crime to bribe foreign officials.

Other recent reports have alleged that Manafort was the subject of not one but two separate surveillance orders issued by the Foreign Intelligence Surveillance Court. If so, that means that a FISA judge has found probable cause to believe that Manafort was acting as an agent of a foreign power, and that a significant purpose of the surveillance was to collect foreign intelligence information. In addition, other reports allege that a no-knock search warrant was executed at Manafort’s home, meaning that a judge found probable cause that evidence of a crime would be found on the premises and authorized an unannounced raid for exigent circumstances. Far from a witch hunt. Manafort and Former National Security Advisor Michael Flynn may both face possible charges of failing to timely register as agents of foreign governments for their lobbying work, which may give Mueller leverage to induce them to explain other connections between Russia and the Trump campaign.

And of course, there are the email messages in which Donald Trump, Jr., accepted a June 2016 meeting with Russians to obtain disparaging information about Hillary Clinton as “part of Russia and its government’s support of Mr. Trump.” Trump Jr., responded by saying, “If it’s what you say I love it especially later in the summer.”  The meeting was attended by Trump, Jr., as well as two other high-level advisors -- Manafort and Trump’s son-in-law, Jared Kushner. President Trump’s role in drafting a press statement about that meeting raises additional questions about his knowledge of the meeting and offers of assistance from Russia.

Mueller and his team are no doubt chasing down all of these avenues of investigation, and possibly others than are not known to the public.  Obstruction of justice is just one of these avenues.

The Brookings paper argues that the obstruction of justice charges could come in the form of a criminal indictment.  Mueller, however, is required to comply with all Department of Justice policies. Opinions from DOJ’s Office of Legal Counsel written in 1973 and 2000 conclude that sitting presidents cannot be charged criminally. Although the Brookings paper makes strong arguments that these opinions are not legally binding, Mueller is likely to abide by them as DOJ policy. While Trump could be charged once he leaves office, it seems more likely that Mueller would present his findings sooner than that to the House of Representatives for potential impeachment proceedings. It would then be up to the Republican-controlled Congress to decide whether this case of obstruction of justice meets the Constitution’s standards for “high crimes and misdemeanors” sufficient to remove Trump from office. House members may conclude that this obstruction case is not serious enough for removal from office.  There is no court of appeals for their decision.

But, if Mueller can prove that Trump accepted assistance from Russia to win the election, even the Republican House will be unable to vote against impeachment.

Senators Finally Have a Chance to Grill Jeff Sessions on Abrupt Turnarounds at Justice

by Dan Froomkin

Attorney General Jeff Sessions has a perplexingly contradictory view of civil rights law when it comes to transgendered people.

On the one hand, he is enthusiastic about prosecuting murder cases in which the victims were allegedly targeted because of their gender identity. On the other hand, he went out of his way to give employers a green light to discriminate against transgender people in the workplace; rejected the Obama administration interpretation that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice;  and defended Donald Trump's half-baked tweet in favor of banning transgender troops.

The backtracks on transgender protections are among several stark and abrupt reversals from practices during the Obama era that have come under Sessions's watch. One on level, that's not so surprising, coming from the attorney general for a president who on Monday described himself, accurately, as "very opposite" from his predecessor.

But some reversals have violated decades of Justice Department precedent – and others have come against a backdrop of consistent forward movement on social issues.

Members of the Senate Judiciary Committee on Wednesday get their first chance to question Sessions since his confirmation hearings more than nine months ago. And in order to explore how dramatically the Justice Department has changed in that time, they should ask the attorney general to explain those turnarounds, and how they came to be.

So, for instance:

Q. It seemed obvious to former Attorney General Eric Holder that the law prohibiting discrimination "because of sex" extends to discrimination because of an employee's gender identification. Why do you see things differently?

Q. If you consider the targeting of transgender people for violence to be a civil rights issue, why is discriminating against them at the workplace not a civil rights issue?

Holder in a 2014 memo, argued the legal interpretation of "sex", as cited in Title VII of the Civil Rights Act of 1964, had evolved over time. "[C]ourts have interpreted Title VII's prohibition of discrimination because of 'sex' as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females," he wrote.

"The most straightforward reading of Title VII is that discrimination 'because of ... sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex."

In July, Sessions's Justice Department filed a brief in a case in which it wasn't even a party, arguing that Title VII doesn't protect employees from discrimination based on sexual orientation.

And a few months later, Sessions sent out a memo countermanding Holder's expansive view of "sex" with a more literal, and anachronistic, reading.

“Title VII does not prohibit discrimination based on gender identity per se," because it doesn't explicitly refer to gender identity, Sessions wrote. Rather than citing new legal precedents or evidence, he simply insisted that " 'Sex' is ordinarily defined to mean biologically male or female."

But in what Matt Apuzzo of the New York Times on Sunday called an example of the "nuance" of Sessions's approach to civil rights, Sessions has been enthusiastic about fighting individual cases of violence against transgender individuals.

Sessions voted against the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2010, which amended federal hate-crime law to include crimes motivated by a victim's actual or perceived "gender, sexual orientation [and] gender identity".

But as attorney general, Sessions praised the first conviction under the new statute of a transgender murder, and has sent a DOJ lawyer to help Iowa prosecutors try a man charged with murdering a transgender high school student last year

By all accounts he even responded with alarm to a letter this March from six House Democrats, asking him to investigate the recent murders of seven African-American transgender women.

"I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals," he said in June.

Q. Do you think it's possible that giving the green light to a certain kind of discrimination in one circumstance might encourage it in another?

And consider Sessions's approach to civil rights violations by police officers. As with victimization of transgender people, he seems aggrieved by individual cases, but utterly heedless of the possibility that there can be a pattern and practice of bad conduct.

For instance, Sessions promised to "punish any police conduct that violates civil rights." But in a March memo that effectively halted the federal review of troubled law enforcement agencies, he wrote that "The misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe."

Q. Why do you acknowledge that there are individual violations of civil rights, but you do not seem able to acknowledge that there are also collective, institutional violations that could and should be addressed? Are you willing to acknowledge those are possible, and actually exist?

In February, Sessions was said to be behind the formal rejection of the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.

Q. Did you see the Obama administration's position as part of an expansion of gay, lesbian and transgender rights? What do you consider the appropriate limits on those rights?

Sessions will rightly and inevitably face a slew of questions about his encounters with Russian officials during his time with the Trump campaign, and his role in possible obstruction of justice, including the firing of FBI Director James Comey.

Matthew Miller has suggested some good questions to that end at Lawfare; Just Security has published an excellent timeline of the various obstructions, with plenty of appearances by Sessions.

It would certainly be worth getting Sessions to state clearly what exactly he has recused himself from, and why he thinks that didn't include participating in the firing of FBI Director James Comey.

Keeping to the theme of asking Sessions about reversals, senators should also  ask him about the sudden settlement in May in a case involving Russian businessman Denis Katsyv, one of whose other lawyers was Natalia Veselnitskaya, a Russian attorney who had held a secret meeting in June 2016 with Trump’s son, son-in-law and then-campaign manager.

Democrats on the House Judiciary Committee in July asked Sessions some fine questions about that:

Q. Was Natalia Veselnitskaya involved at any point in the settlement negotiations of U.S. v Prevezon Holdings Ltd.?

Q. Why was the case settled for $6 million just two days before trial was scheduled to begin? 

Q. Was there any contact between President Trump, White House personnel, the Trump family, or the Trump campaign with the Department of Justice regarding the Prevezon case? 

Q. Did you discuss the Prevezon case with anyone associated with the transition team at any point during the time you were under consideration for Attorney General?

Q. Did you discuss the Prevezon case with Ambassador Kislyak, or any other Russian official, at any time?

When it comes to voting rights, one Sessions about-face wasn't simply a rejection of Obama administration policy, it was a reversal of more than two decades of consistent Justice Department enforcement of the rule in question. The brief was signed exclusively by political appointees. By contrast, a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court to represent the historical view.

Q. Why did no career Justice Department lawyers sign the brief your solicitor general filed in July doing a 180 on the Department's traditional position on its interpretation of a key element of the Voting Rights Act?

In a key labor relations case, the Justice Department in June not only abandoned its previous position, it actually filed an amicus brief on behalf of the companies that were formerly its targets. The issue was whether arbitration agreements can bar employees from suing their employers. The Obama administration argued no; the Trump administration argued yes.

The brief, with admirable transparency, explained that "After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion."

Q. What factors played a role in the department's reversal on whether arbitration agreements can bar employees from suing their employers?

The Solicitor General has often been called "the Tenth Justice" in light of the office's tradition of honoring the doctrine of precedent. It isn't supposed to switch positions on the interpretation of federal law willy-nilly.

Q. What sort of process is there to determine whether the Solicitor General should abandon a previously held interpretation of the law?

Q. How high is the bar?

Under Obama, the Justice Department was defending a new rule regarding hydraulic fracturing operations on public lands. But when it was time for oral arguments, the Trump administration had already started dismantling the rule. So a Justice Department lawyer told a 10th Circuit panel that his bosses didn't want to win the case anymore – but also didn't want to lose it, either, because that might set a bad precedent.

A 1984 Supreme Court decision requires judges to defer to administrative agencies’ interpretations of ambiguous federal law.

Q. Are you concerned that abrupt reversals in interpretations of federal laws could lead the courts to reconsider the normal cannons of deference?

Sessions has ordered prosecutors to abandon Obama-era leniency when it comes to prison sentences for nonviolent drug offenses, returning to the drug-war tactics that led to the current state of mass incarceration.

Q. Do you think the Drug War has worked?

Q. Do you disagree that mass incarceration has a disproportionate impact on people of color?

There's been an emerging consensus on the right and left that civil asset forfeiture by law enforcement agencies is widely abused, wildly unfair, and probably unconstitutional.

In July, Sessions rolled back Obama-era curbs on asset forfeiture and announced the federal government will seize more cash and property from suspected criminals, whether or not they have been charged with a crime.

But his move was so unpopular in both parties that the House overwhelmingly passed an amendment that would roll back the Sessions rollback.

Q. What prompted you to try to reopen the civil asset forfeiture spigot?

Q. Who, besides you, thinks that letting the government seize innocent people's property without charging them with a crime is a good idea?

Every new administration wants to put their stamp on the Justice Department. But the way Sessions is reversing course at times seems not very well thought out. Making Sessions answer for those actions is what congressional oversight is all about.