Category Archives: First Amendment

Constitutional Challenge to New York’s Loitering for Prostitution Law

Is New York’s Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], unconstitutional? An important new complaint filed in the federal court by The Legal Aid Society in D.H. v. City of New York argues that the statute, facially and as applied, is unconstitutionally vague under the Due Process Clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

John Singer Sargent, Street in Venice, 1882, oil on wood

Essentially, the complaint alleges that the statute does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association. Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them. One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise ﬂawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs ofﬁcers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear. In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, ofﬁcers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54]. The “black pea coat” as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant “wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes.”

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City’s practice of stop and frisk. Recall that a federal judge found NYC’s practices violated equal protection in her opinion in Floyd v. City of New York, later stayed – – – and thereafter clarified – – – by the Second Circuit, followed by the City’s new administration agreeing with the decision and abandoning the appeals. One of the complaint’s pendent state law claims is a violation of the city’s own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor’s veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for “criminal sex” statutes, whether that sex is criminalized because it is commercial, public, or “unnatural” (as in previous sodomy prohibitions), have always been constitutionally problematic. And the use of dress or appearance to establish “probable cause” or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

[cross-posted at Constitutional Law Professors Blog]

SCOTUS Starting its New Term: Preview of Constitutional Cases

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.

The CUNY Law Review will be holding an event Thursday, September 29, 2016 at 6pm at the law school with professors discussing the new Term. More info here.

Here’s a quick rundown of the questions the Court will be considering with more detail over at the Constitutional Law Professors blog.

Can – – – or how can – – – a state legislature redistrict the state and take into account racial demographics? The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is a lower court finding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation.

In another Equal Protection Clause case, the question involves sex discrimination by the United States in its immigration law. In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection.

Are religious organizations entitled to be treated “equally”? Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision; the Eighth Circuit sided with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution. Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror. Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally – – – at least for now – – – the Court will also be hearing a constitutional property dispute. Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

Look for updates as the Court adds more cases to its docket.

No Damages for (Unconstitutionally) Disciplining Prisoner Speech

Maybe you’ve heard of Daniel McGowan? He’s well known as an environmental activist who lives in Brooklyn and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.

He went to federal prison for arson in connection with his “activities,” but gained transfer to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. While at RCC in April 2013, McGowan published an article on Huffington Post entitled “Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech.”

Interestingly enough, the publication of this article about being disciplined for political speech caused McGowan to be disciplined. The RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons – – – in solitary confinement – – – for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

If that “byline regulation” sounds as if it might be a violation of the First Amendment, it is. It was challenged and a federal district judge in Colorado in 2007 ruled that it was. The Bureau of Prisons (BOP) did not appeal, and in fact the BOP instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan was lucky; he had lawyers who soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

But McGowan sued the RCC personnel for a violation of the First Amendment. The Second Circuit Court of Appeals, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was “clearly established” at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the ” only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding.” The court also rejected claims sounding in tort regarding the BOP’s failure to follow its own regulations.

So McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

If a tree falls . . . .

It’s Bill of Rights Day: Why Isn’t it a paid holiday? And what are we celebrating?

“Forgive yourself if you haven’t made any special plans for Bill of Rights Day again this year. It’s not a federal holiday after all. Indeed, Congress has made sure that any recognition of Bill of Rights Day would not create a bona fide holiday (really, who needs another day off?) and would not require any funds be spent commemorating the first ten amendments to the United States Constitution.”

More from my column on Bill of Rights Day (who started it and why?) – – – and the Bill of Rights (was it really about rights? was the first amendment first because it was most important? ) – – – is here.

And then there’s that nasty omission of equality, although President Obama incorporated it in his proclamation this year.

Lying in Political Campaigns is Constitutional

If you had any doubts that lies, falsehoods, or half-truths were fine during political campaigns, they should probably be laid to rest.

In a 25 page opinion replete with bolded underlined language, Judge Timothy Black held Ohio’s statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission. The United States Supreme Court last term heard the case as Susan B. Anthony List v. Driehaus on the issue of whether the matter was “ripe” for review, since no one was actually prosecuted under the law, and unanimously held it could be decided, sending it back to the lower courts. The Court’s opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a “ministry of truth,” a characterization later echoed by Justice Scalia.

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: “we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth.” (bold underlining in original). However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

These twinned rationales – – – the “Ministry of Truth” and the “flood of naked truth” – – – undergird the Judge’s doctrinal analysis, more of which is discussed here. Although the judge gives a nod to his doubts that the truth will out given unlimited campaign spending constitutionalized by the Court’s interpretation of the First Amendment in Citizens United, that’s not sufficient to undermine the principles.

“A Naked Truth, or Nipping Frost” by Charles Williams circa 1803 via

Zephyr Teachout’s Book: Corruption

New Yorkers know that Zephyr Teachout is challenging incumbent Andrew Cuomo for Governor in the primary next week.

That challenge is linked to her book – – – entitled simply Corruption – – – just published by Harvard University Press.

Here’s a bit from the publisher’s description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Interestingly the New York Times did not endorse Teachout because her focus on corruption made her too narrow, but it did not endorse Cuomo, seemingly because his focus on corruption was not sufficient. Teachout’s running mate, also a law professor, did garner the NYT endorsement. (more, with links, here).

Practice of Oral Suction Circumcision (MBP) and Religious Free Exercise

The United States Court of Appeals for the Second Circuit has ruled on a NYC Regulation requiring disclosure to parents about the possible adverse health consequences of “oral suction” circumcision.

Reversing the district judge’s decision rendered more than 18 months ago, the Second Circuit’s opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment’s Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for “oral suction” circumcision. The unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law.

The opening of the court’s opinion gives a good preview of the court’s perspective:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is “simpler to address” than was true in Lukumi “in light of the Department’s own admission that metzitzah b’peh ‘prompted’ § 181.21 and that metzitzah b’peh is ‘the only presently known conduct’ covered by the Regulation.”

The court notes that “the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims.”

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge’s original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

Should Rap Lyrics Be Used Against Author in Criminal Trial? New Jersey Supreme Court Says No

The question of whether one’s artistic expressions can be be used against one in a criminal trial occurs with some frequency. This is not about being criminally prosecuted for the expression itself, as in an obscenity case. Instead, this is about using artistic expression as evidence to prove that a defendant’s intent or motive to commit the crime.

In such scenarios, Bob Marley’s well known song “I shot the sheriff” could be used at trial if he had been prosecuted for murder of a law enforcement officer. And Johnny Cash’s famous lyric “I shot a man in Reno just to watch him die,” could be introduced at trial if he had been prosecuted for first degree murder, presumably even if not in Reno, to show his bad intent.

In State v. Skinner, the New Jersey Supreme Court reversed the introduction of rap lyrics authored by the defendant before the alleged crime. The court interpreted the commonplace evidentiary rule that requires a weighing of the “prejudicial impact” of evidence against its “probative value.” The lyrics were deemed prejudicial because they were violent and obscene. But the more important query was whether they were at all “probative”? Which brought the court to Bob Marley, as well as to Edgar Allen Poe:

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

The opinion is decidedly grounded in the rules of evidence that govern criminal (and civil) trials rather than the First Amendment, but First Amendment protections for free expression cast a long shadow here. The New Jersey Supreme Court’s unanimous opinion contains a lengthy passage describing the First Amendment discussion in the ALCU’s amicus brief, although the court never explicitly returns to the First Amendment in its own analysis. The “nexus” language is key. To the extent that expression details the accused crime, it is more likely to be admissible. But the New Jersey Supreme Court makes clear that a song about how one shot the sheriff (and not the deputy) isn’t likely to be admitted in a criminal trial to prove your intent to commit murder.

[image via; more discussion on the Constitutional Law Professors Blog here].

What Should Congress Do After Hobby Lobby?

What can – – – and should – – – Congress do after “Hobby Lobby”?
In a word: lots!

You’ve most likely heard about the United States Supreme Court’s divided and divisive opinion in “Hobby Lobby” – – now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell – – – on the last day of the Court’s Term in 2013-2014. The majority, in an opinion authored by Justice Samuel Alito, held that closely held corporations (or their owner/shareholders) are entitled to a religious exemption from the federal mandate to provide health insurance to employees that includes contraceptive coverage.

image via

But what is getting lost in this discussion is that not only is the provision of contraceptive coverage based on federal laws (“Obamacare” and the regulations passed pursuant to it), but so too is the basis for the religious exemption. The Religious Freedom Restoration Act, RFRA, is the statute interpreted by the Court to provide religious “freedom” to for profit corporations like Hobby Lobby.

Importantly, the decision is an interpretation of the word “person” in the RFRA statute, passed by Congress in 1993. Equally important, the decision is an application of the requirement under RFRA that a person’s religion be “substantially burdened.” And perhaps most important, the decision is an application of RFRA’s ultra-strict scrutiny that changed otherwise applicable First Amendment doctrine. Under RFRA, the government interest must be compelling and that interest must be effectuated by the “least restrictive means, even if the government action is a religiously neutral one of general applicability.

Given that the Court is simply interpreting a statute – – – and not the Constitution – – – Congress can amend the statute to nullify the Court’s interpretation. Or Congress could repeal the statute – – – a statute meant to change First Amendment doctrine after all – – – in its entirely and restore the First Amendment. Indeed, the repeal statute could be called the First Amendment Restoration Act.

I further discuss the option Congress has in a post for the London School of Economics blog. [Update: And here’s more]

Meanwhile, I’ll be more than interested in what New York’s Senator Kirsten Gillibrand has to say.

Your First Amendment Rights to Reveal Corruption

Frank Duveneck, Whistling Boy, circa 1872

Imagine this: you’re hired as a director of a program for at-risk youth as part of a CUNY initiative. When you take a look at the finances, you discover there’s a state legislator listed on the payroll. You soon figure out this legislator has never performed any work for the program. You talk to some administrators, but you are warned by them – – – and then by a university lawyer – – – that terminating the legislator’s employment could have negative repercussions for both you and the university. Nevertheless, you do terminate the legislator from the payroll. She tells people she is going to “get back” at you.
Instead, she’s investigated. You testify at the grand jury and at her two criminal trials. She’s convicted. You’re fired by the same administrator who warned you not to get involved.

Those are the facts, more or less, in Lane v. Franks, decided by the United States Supreme Court. The Court held that Edward Lane, the employee, did have a First Amendment right not to be retaliated against for his testimony on the criminal trial. However, the Court held that the administrator – – – Steve Franks, president of the Alabama community college system who fired Lane – – – was not personally liable for damages because Lane’s First Amendment rights were not sufficiently “clearly established” at the time of the termination.

It’s a limited but important victory for the protection of the rights of university and other public employees.

More of my comments about the case and the opinion are on Constitutional Law Professors Blog here and on SCOTUSBlog here.

Robson at CUNY Law

City University of New York Academic Commons