“Show me the proof…before you can get the proof”: Ayestas offers the Court the chance to fix a paradoxical and unfair standard in death penalty cases

by Emily Olson-Gault, director, American Bar Association Death Penalty Representation Project and Misty C. Thomas, director, American Bar Association Death Penalty Due Process Review Project

*Affiliations are listed for identification purposes only, as the opinions expressed in this post are the authors’ personal views.

In one week, the U.S. Supreme Court will hear oral arguments in the case of Texas death row prisoner Carlos Ayestas to decide whether his federal appeals attorneys should be afforded basic resources to investigate their client’s background and mental health. This should seem obvious, as we know that these investigations are often the only way to uncover new evidence of wrongful convictions or other constitutional violations. However, the courts below have denied Mr. Ayestas investigative resources critical to developing his defense because he could not prove in advance the very claims he sought to investigate. If the lower court’s decision sounds confusing and circular, that’s because it is. It is also an outlier practice that effectively denies poor people access to justice in the most serious and complex cases.

Congress has long recognized the need to provide reasonable funding for investigation to defense counsel who are representing poor people accused or convicted of crimes. Without such resources, defense lawyers cannot fulfill their ethical obligations to their clients and the reliability of our justice system is greatly diminished. While important in all criminal cases, Congress and the courts have noted that the ability to investigate fully is particularly vital in death penalty cases, where mistakes become irreversible once the punishment is carried out.

Carlos Ayestas sought such funding to investigate a claim that his trial attorneys’ woefully inadequate investigation and paltry two-minute plea for his life fell well below the quality of representation guaranteed by the U.S. Constitution. Any attorney who follows the ABA’s widely accepted guidelines on how to conduct a basic mitigation investigation would have easily uncovered that Mr. Ayestas had experienced multiple head traumas in his life, struggled with substance abuse, and exhibited signs of mental illness. Indeed, after trial, mental health experts at the Texas death row prison diagnosed Mr. Ayestas with schizophrenia. Research has repeatedly shown that evidence like this can be particularly compelling to capital jurors when well-presented, making them more likely to spare a defendant’s life when they know of past traumas or disabilities. But Mr. Ayestas’s trial lawyers said nothing about these factors in his life, nor did they adequately investigate Mr. Ayestas’s deteriorating mental condition.

The U.S. Supreme Court has repeatedly held that defense counsel’s failure to conduct a thorough investigation into all aspects of a client’s life violates the Sixth Amendment’s right to counsel. But to win an ineffective assistance of counsel claim, courts require proof of what evidence trial counsel could have uncovered if she had conducted a full investigation and how that evidence might have made a difference at trial. Yet the Texas federal district court and the Fifth Circuit, without allowing him to first obtain such evidence, ruled that Mr. Ayestas has not demonstrated ineffective assistance of counsel. In fact, his habeas lawyers’ request for investigation and expert resources has been rejected because, at the time he asked for funding, Mr. Ayestas was not yet able to provide what the court thought was sufficient evidence to support his claim of ineffective assistance of counsel or a “substantial need” for the investigation. The courts essentially required him to provide, in advance, the very proof that the funding was needed to obtain.

In most other jurisdictions, courts use a “reasonably necessary” standard to assess requests for funding from habeas lawyers who are seeking to prove claims like ineffective assistance of counsel or other constitutional failings. Under this test, the court asks only whether a reasonable attorney with limited resources would choose to spend some of those resources pursuing a particular line of investigation in advance of submitting a habeas petition. This is designed to ensure that defendants who can afford to hire a private lawyer and those who must rely on court-funded counsel receive equitable levels of representation, while giving courts the discretion to reject frivolous requests.

However, in the Fifth Circuit, where Mr. Ayestas’s case was considered, the courts apply a stricter standard, requiring defendants to show they have a “substantial need” for the funding. As Mr. Ayestas’s case demonstrates, this outlier standard is virtually impossible to satisfy. It prevents counsel from obtaining the reasonably necessary funding that Congress intended to provide to ensure that poor defendants do not receive second-class justice and in so doing threatens the functioning and integrity of the criminal justice system.

In Ayestas v. Davis, the U.S. Supreme Court is being asked to consider whether this rigid Fifth Circuit standard misinterprets the federal law that governs funding for habeas investigations. The Court has the opportunity to ensure that the conventional, plain-language reading of the statute remains the status quo, better ensuring that the law is consistent and fair for all poor defendants who simply want to exercise their statutory and Constitutional rights. The Court would be on solid legal footing in doing so. 

The Latest Muslim Ban Litigation

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

Two federal court rulings this week constitute a third strike for the Trump administration’s attempt at enforcing a Muslim ban. The Administration issued an indefinite Muslim ban late last month, Proclamation 9645, prompting the Supreme Court to rule moot litigation regarding the previous, temporary version of the ban. However, hours before the new ban was set to take effect on October 18, US District Courts in Hawai‘i and Maryland halted a majority of the policy from taking effect, largely arguing that the new indefinite ban does not avoid the statutory and Constitutional infirmaries of its temporary predecessors.

Rulings on the Latest Muslim Ban

On Tuesday Judge Watson in Hawai‘i ruled against the government in Hawai‘i v. Trump, granting a temporary restraining order against the policy with respect to the ban’s listed Muslim-majority countries. Early Monday morning Judge Chuang in Maryland entered a preliminary injunction for same countries in favor of plaintiffs in IRAP et. al v. Trump.

Both judges found that the Proclamation over-stepped the President’s authority in the realm of immigration delegated by Congress under the Immigration and Nationality Act (INA). Specifically, both judges held the Muslim ban in violation of the Act’s nondiscrimination clause, 8 USC 1152, and delineated grounds for entry restrictions by a President, 8 USC 1182(f).

Judge Watson felt the Proclamation’s reasons for arriving at the list of countries banned were, “inconsistent with and do not fit the restrictions that the order actually imposes,” and that the Proclamation “improperly uses nationality as a proxy for risk.” He further lists three main reasons why the Proclamation’s evidentiary findings fall short: it presents no evidence that nationality alone is linked to a propensity to commit terrorism; there is no explanation as to why existing law is insufficient; and there are “internal incoherencies that markedly undermine [the Proclamation’s] stated ‘national security’ rationale”.

Judge Chuang ruled on the INA as well, but also felt the Proclamation, like the previous bans, violates the Lemon Test of the Establishment Clause of the First Amendment by having a religious-based motive driving the policy. The judged noted, “...the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation.”

Next Steps

At present, Trump’s Proclamation remains in force with respect to only specified government officials from Venezuela and the exceedingly rare North Korean national who attempts to immigrate to the US. Nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia may enter the US subject to pre-existing immigration law. This may change, however. The status quo rests on a temporary restraining order and a preliminary injunction. The government will likely appeal these measures, and full hearings on the merits are unlikely to, but may, produce different results in either the District or Appeals courts.

The Trump administration has fought judicial challenges to previous iterations of the Muslim ban tooth and nail. So it is no surprise that the White House has already announced that the “Department of Justice will vigorously defend the President’s lawful action,” which DOJ plans on doing “in an expeditious manner.” The government will face uphill battles in front of the respective Courts of Appeals for the cases, the 4th and 9th Circuits. Both appellate courts ruled against the previous iterations of the Muslim ban, and both of the most recent District Court decisions outlined above quote heavily from those previous Appeals Court rulings as relevant precedent. Facing likely failure at the appellate level, the government is surely preparing for the Supreme Court.

While the Supreme Court has not yet ruled on the substance of the Muslim ban, its June ruling narrowing similar lower court injunctions to those above included explicit deference to the President’s national security claims, perhaps tipping the Court’s hand as to how it may rule on the case more broadly. Like Judge Watson, any substantive ruling by the Supreme Court will likely attempt to avoid ruling on Constitutional grounds if not necessary. However, relying on statute may force the Supreme Court into an uncomfortable tension with Supreme Court precedent such as Galvan v. Press 347 U.S. 522 (1954), which affirmed the INA and the “broad power of Congress over the admission and deportation of aliens”.

Forecasting how nine justices will rule is notoriously difficult, and important stages of litigation lay ahead before the merits of the Muslim ban reach the high court again. When the ban inevitably comes before the Supreme Court again, the justices should remember, as the lower courts have, that the safety, equality, dignity, and familial integrity of millions of Muslims here and abroad await a judiciary grappling with discrimination under the guise of national security and the limits of executive authority.

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.