Category Archives: First Amendment

Article – Reed v. Town of Gilbert: Signs of (Dis)Content?

A case straight out of Gilbert, Arizona will be heard by the United States Supreme Court later in this session (probably early 2015).  The case will look at what is content-based speech for First Amendment purposes.

The Town of Gilbert created an ordinance that restricts the size, duration and location of temporary directional signs.  The ordinance prohibited the erection of signs without a permit, but for three exceptions: temporary directional signs relating to a qualifying event, political signs, and ideological signs.  Good News Church (that is the name of the church), rented space to meet in a local elementary school.  For a while, the Church put out about seventeen signs around the area announcing the time and location of its services.  The Town of Gilbert claimed the signs violated the sign ordinance’s time restrictions.

The issue is whether Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This should be a really interesting case to follow.  I will write another article updating this topic after oral arguments.

To read the filings in the case visit SCOTUSblog.

For those who find this subject interesting, there is already some scholarly literature out on this case.  Here is a recent article previewing the upcoming United States Supreme Court case.

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert’s sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit’s resistance to finding Gilbert’s ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine – that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn’t legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

— Ashutosh Avinash Bhagwat, Reed v. Town of Gilbert: Signs of (Dis)Content?, SSRN.

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Lawsuit Against the State of Arizona Seeks to Find Out Its Execution Protocols

Arizona is still dragging its feet at the thought of divulging its execution protocols — to anyone that asks.  Different groups across the state, including the First Amendment Coalition of Arizona, are joining forces in an interesting lawsuit arguing there is a First Amendment right for both inmates and the public to know the execution protocol.  This is a really interesting case from a public records and a constitutional perspective.

This lawsuit is a part of an on-going battle for states to reveal what methods are used in executions and arguing there is a right to know states’ execution protocols.

In recent years, states have had a difficult time procuring the drugs needed to carry out executions.  Companies own morals and public protests deterred many domestic drug manufacturers from permitting their drugs to be used in executions.  States either had to find new sources for the drugs or to find new ways to carry out the executions. See Wood v. Ryan, 759 F.3d 1076, 1101 (9th Cir. 2014).

For a while, Arizona illegally imported sodium thiopental from Great Britain.  “Thiopental is a short-acting barbiturate that was used as part of a three-drug, lethal-injection cocktail. It served as anesthesia before a paralyzing drug and a heart-stopping drug were administered. But the sole U.S. supplier of thiopental stopped producing it in 2009 because it had largely been replaced in hospitals by more modern drugs.”  Reported the AZ Republic.  Arizona then turned to a manufacturer in Great Britain that was unauthorized to export the drug.

The FDA is “permanently enjoined from permitting the entry of, or releasing any future shipments of, foreign manufactured thiopental into interstate commerce.” Beaty v. FDA, 853 F. Supp. 30 (D. D.C. 2012).

This left states like Arizona in unknown territory, searching for new procedures for carrying out executions.

Axe execution equipment

— Photo taken by: Der Vollstrecker, Flickr.

Continue reading Lawsuit Against the State of Arizona Seeks to Find Out Its Execution Protocols

Article – Free Speech and Guilty Minds

The United States Supreme Court is poised to decide whether the true threats exception to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats.  United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013).

True threats what?  Yep.  In First Amendment theory, when an individual makes an objectively true treat, courts will look to the First Amendment to see whether that speech is protected or not by examining the subjective intent.  Since a threat is generally a violation of criminal law, a person may say, “look, I was only joking.  The First Amendment protects my right to make jokes without government punishment.” The person’s intent was to make a joke, not to make a threat.  That is how subjective intent can be the deciding factor whether a threat is protected by the First Amendment or not.

The United States Supreme Court determined in Virginia v. Black, 538 U.S. 343 (2003) “true threats” are not protected by the First Amendment.  “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotations omitted).

Arizona has had a few of its own true threat cases that have gone before state appellate courts.  In fact, there is a case currently in Maricopa County Superior Court dealing with a similar fact pattern to the Elonis case.  I wrote earlier about a New York man who threatened Nancy Grace and Jane Velez-Mitchell via twitter while they covered the Jodi Arias trial.  I am not sure if the true threats doctrine is being used in this case or not, but it could potentially based upon the media’s fact patterns.

This is a really good article that goes into depth in this hot topic.  It discusses the correlation between free speech and guilty minds.  It is a good read to stay up to date on the latest First Amendment trends and to prepare for the United States Supreme Court upcoming term.

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Leslie Kendrick, Free Speech and Guilty Minds, 114 Col. L. Rev. 1254.

Arizona Obscenity Law 40 Years After The Last Picture Show Ban

I had a discussion with a family member over the phone the other day about modern movies and obscenity.  “Joe, have you heard about the movie 50 Shades of Grey coming out?” Because of my female friends and acquaintances I have some passing familiarity with the subject matter.  “Do you think it could be considered obscenity?  Some people are saying it is kinda like pornography for women.” Inquired my family member.  Well that is some food for thought…

It turns out that city of Phoenix has banned a movie before because of obscenity.  Could it try to do it again?  Using the movie 50 Shades of Grey as an example, I will analyze if a commercial movie with national appeal could be considered obscenity or not.

Phoenix’s Last Picture Show Ban

Almost forty-one years ago, the city of Phoenix, Arizona banned The Last Picture Show from its theaters because of obscenity. BBS Productions, Inc v. Purcell, 360 F. Supp 801 (D. Ariz 1973). The Phoenix City Attorney objected to “total frontal nudity of a female swimmer,” lasting approximately four seconds. Id. Apparently the scene in question involved Cybil Shepherd skinny-dipping.  The film received an R (restricted) from the MPAA (Motion Picture Association of America).  The Phoenix City Attorney said the film could be played if that four seconds of nudity was deleted from the film.  Id. Phoenix claimed the movie violated Ariz. Rev. Stat. § 13-537 (1971), which defined and banned obscenity.  “It is unlawful for any person knowingly to place explicit sexual material upon public display, or knowingly to fail to take prompt action to remove such a display from property . . under his control after learning of its existence.”  Id. (quoting Ariz. Rev. Stat. § 13-537 (1971)).

Continue reading Arizona Obscenity Law 40 Years After The Last Picture Show Ban

The First Amendment’s to Right to Know

The argument that the First Amendment includes a right to know is gaining traction in Arizona and the Ninth Circuit Court of Appeals.

In the fall of 2013 was the first time I heard this argument made.  The state of Arizona as well as other death penalty states have had trouble for a couple of years now procuring drugs used in the administration of the death penalty.  Some companies object on moral grounds that their drugs are used in executions.  The companies who do not object can be subject to public protests and scrutiny that probably is not favorable to their business.  It is no surprise that states including Arizona have become very tight-lipped about their execution procedures.

The defense attorneys were worried at that point the state of Arizona was planning to used expired drugs to carry-out the execution.  Basically their argument was two steps: 1. There was a First Amendment right to know if the drugs were indeed expired or not; and 2. They need to know was necessary so they could file a an Eighth Amendment claim against cruel and unusual punishment if Arizona planned on using expired drugs.   However, the Eighth Amendment cruel and unusual punishment claim hung on whether the public had a right to know Arizona’s death penalty procedures.

I think this argument is going to be used more as state executions are not going smoothly.  CNN says “Botched Executions Can’t Be the New Norm.” The Huffington Post examines “How Arizona, Ohio and Oklahoma Executions Went Awry.”

In fact, I think the argument that the First Amendment includes a right to know may gain traction outside of death penalty realms and could be applicable to open record requests of all types.

The Argument as Used in Woods v. Ryan

After Arizona moved for a warrant of execution requests the defense “sent the first of four letters inquiring about the method the Department would use to execute Wood.” Wood v. Ryan, 14-16310, at *5 (9th Cir. July 19, 2014).  The questions were procedural in nature: which drugs would be used, how much would be administered, the credentials of who would administer the drugs, and the name of the manufacturer. Id.

The Arizona Department of Corrections (ADC) did not directly respond to the defense attorneys’  questions, but offered vague explanations.  The drugs would be obtained domestically and Food and Drug Administration (FDA) approved, although it would not go into further detail based on an Arizona privacy law Ariz. Rev. Stat. § 13-757.

The defense attorneys again requested manufacturer information, expiration dates of the drugs, and for official copies describing Ohio’s new execution protocol.

ADC responded to the request with documents do display the expiration dates of the Midazolam and Hydromorphone.  The drugs are good through September 2015.  However the Department of Corrections redacted the manufacture’s name.  The manufacture’s name may not seem like a big deal, but the Arizona Department of Corrections was previously caught by a federal court in 2012 for illegally importing drugs, with the (FDA’s) approval, to bypass regulations and import unapproved drugs to carry out executions.  After being mislead by the Arizona Department of Corrections before, the defense attorneys were trying to make sure the proper procedure was used.

Following this correspondence, Wood still seeks: (1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

Wood v. Ryan, 14-16310, at *7 (9th Cir. July 19, 2014).

The defense claimed the state of Arizona is violating the following protections:

1. First Amendment right to petition the government for redress and grievances; and

2. First Amendment right to be informed about the manner in which the manner Arizona implements the death penalty.

The basis of the First Amendment is to be able to criticize the government. “Underlying this right is the common understanding that a major purpose of that Amendment was to protect free discussion of governmental affairs.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982)) (internal citations omitted).  The First Amendment protects speech from governmental intrusion, so it only makes sense is one of the main purposes is to protect citizens from criticizing it.  “This protection ensures that the individual citizen can effectively participate in and contribute to our republican system of government.” Id.

Seeking access to government documents and procedures invokes a First Amendment test that looks to “‘complementary considerations'”  which inform the analysis: “(1) whether the place and process have historically been open to the press and general public[ ] and (2) whether public access plays a significant positive role in the functioning of the particular process in question.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d 868,   875 (9th Cir 2002) also quoting Press Enterprise II v. Superior Court, 478 U.S. 1, 8-9 (1986))).

The ruling in Wood would be vacated a few days later reversing the preliminary injunction granted by the Ninth Circuit Court of Appeals.  However, the First Amendment analysis can stand independently of the preliminary injunction and potentially be used in future applications.

Future Applications

I find this to be a fascinating First Amendment argument that is fairly unique.  Before I attended that court hearing last summer I never really thought of the First Amendment guaranteeing a right to know. It is even more encouraging that the argument is starting to become accepted in the Ninth Circuit.  Even though the Court is discussing execution procedures there is nothing to limit this analysis to other governmental functions.  The “complimentary considerations” test could apply to a wide variety of situations where individuals seek information about governmental information / procedures.

I would like to see how this could supplement a Freedom of Information Act / state Open Records request to give it more teeth on First Amendment grounds and not just relying on federal or state law.

Implementation of Search Engine Link Deletion

It looks like the European Union is going to be the test case for search engine link deletion in the name of individual privacy.  Some are saying this is the end of the internet as we know it because unfettered search results of the past are now going to be censored.  Others are saying this is the start of a new era for individual privacy.  My guess is that it will be somewhere in between the two ends of the spectrum.

Google already unveiled the new form earlier this week where users can request to delete a link that is: irrelevant, outdated, or otherwise inappropriate.  Procedurally, it appears a resident of a European country can visit the site https://support.google.com/legal/contact/lr_eudpa?product=websearch. The user then fills out the form and Google will sometime in the future make its determination.  ]It is unclear how which links will be selected for removal and which links will remain in the database.  Since this is uncharted territory for any search engine, the results will be interesting.

Google Link Deletion Form
Google Link Deletion Form

Courts are given power to adjudicate the law in its given jurisdiction — a geographical boundary.  However, the internet is not very good at setting boundaries.  Some countries try to filter the internet within their borders to varying degrees of success.  Licenses also restrict content providers from where they may provide their goods, through geo-blocking.  It is unclear at best how Google will only limit residents of the European Union to its link removal service.  The internet knows no speech boundaries.  It is quite possible that after some time Google may allow all searchers to file for link removal.

Since it looks like link deletion is here to stay, the impact on speech, if any, needs to be sorted out.

Previously,  I analyzed the speech issues associated with the European court’s decision.  I argued search engines employ two different types of speech that should be afforded different levels of protection.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

Proper evaluation of the protection courts will provide for search engine speech is important because technology evolves.  A letter from Sergy Brin and Larry Page to the shareholders in 2013 gives a glimpse of how search may evolve in the coming years.

While it is still early days, we’ve also made significant progress understanding people’s context, which is crucial if we are to improve human-computer interaction. Think about your commute.  You need the traffic information very accessible so you can plan for it, or avoid it altogether.  If you’re going to another appointment, you want the directions to start from where you are at that moment (rather than having to type in your location on a small screen).  Improved context will also help make search more natural, and not a series of keywords you artificially type into a computer.  We’re getting closer: ask how tall the Eiffel Tower is, and then when ‘it’ was built.  By understanding what ‘it’ means in different contexts, we can make search conversational.

— Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

It is difficult to assign constitutional protections to technologies because by the times courts come to a consensus the technology is outdated.  See United States v. Jones, 132 S. Ct. 845 (2012) (holding a car mounted GPS to monitor the vehicle’s movements constitutes a search under the Fourth Amendment).  As search engines continue to evolve over time, it is important the judicial rules are able to adapt to the changing technology.

 

Legal Documents of the LA Clippers Forced Sale

The forced sale of the Los Angeles Clippers may be moot, but the legal issues surrounding the forced sale are interesting.

Donald Sterling made offensive racial comments during what appears to be a private conversation that was taped and then leaked to news outlets.  The league claimed in it’s summary of dismissal, Sterling “disparaged African-Americans and ‘minorities’; denigrated the contribution of NBA players; directed a female acquaintance not to associate publicly with African-Americans; admonished that acquaintance for posting pictures of herself with African-Americans on social media; directed that acquaintance not to bring African-Americans to Clippers games; and criticized African-Americans for not supporting their communities.”  A public uproar ensued.  NBA Commissioner Adam Silver then fined Sterling $2.5 million dollars and placed an indefinite ban on him doing anything relating to the Clippers.  It appears Donald Sterling gave power to his wife to sell the team.

This really does not deal with an issue in Arizona, but the Phoenix Suns are part of the NBA and I found the topic interesting.

The National Basketball Association is kind of an oligarchy.  There is not much competition and very few owners.  Outside of college basketball, where the players are not paid, the only real alternatives are the WNBA and the D-League both of which have strong affiliations with the NBA — it is not fair to call them competitors.  With thirty majority owners (one for each team), it is a pretty exclusive club.  The owners collective hire the Commissioner who enforces the rules.  Furthermore, each team has a stake in creating the rules via the NBA Board of Governors (explained in the NBA Constitution).

How does it operate?  Outside of lockouts and rule changes, it does not seem like there is a lot of information on its operations.  Since it is unlikely that I will ever have the privilege of owning a sports team, it interests me to see how things run from the inside.

The NBA is guided by it’s own Constitution and By-Laws, which were apparently made public after the taped Donald Sterling comments.  It is nice to be able to see the rules the NBA owners have chosen to live by.

Termination of Ownership

The NBA Constitution directly deals with the termination of ownership in Article 13.  Like reported in the media, Article 13 says the interest of an owner may terminated by a 3/4ths vote for one of the enumerated activities.

  • ” Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.”
  • Transfer or attempt to transfer an ownership interest in violation of Article 5.
  • Fail to pay dues or other debts.
  • “Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
  • Betting on games.
  • Allowing others to bet on games.
  • Fixing the score of a game — to allow others to bet on a game.
  • Disband the team during the season.
  • Intentionally fail to keep team from playing a game.
  • Intentionally lie on membership application.

— NBA Const. art. 13.

There is not a moral clause anywhere in there — after all, he is being charged with being immoral.   Offensive comments are not grounds for termination of ownership, nor are they illegal.  There really isn’t anything in the express language of the Constitution that Donald Sterling violated.

It is apparent the Commissioner exercised another section of the Constitution when it banned Donald Sterling.

The Commissioner shall have the power to suspend a Player, Coach, Member, Owner, or other person subject to the Commissioner’s jurisdiction for a definite or indefinite period and to impose such fines and other penalties as are authorized by Article 35, 35A…

— NBA Const. art. 24, sec. (h)(i).

Furthermore, Article 24, section (l) gives the Commissioner the power to impose fines.  The qualification to levy a fine is that there must not be a “fixed penalty” for the violation.  This section was most likely utilized in order to impose the fine upon Sterling.

NBA’s Arguments For Termination

The NBA in it’s Summary of Termination (see link below) argues that Sterling violated Article 13, sections (a), (c) and (d).

The league claims Sterling “willfully violated” 13(a) “when LAC destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement, as described above.”  Granted this is only the league’s summary, but the document does not state what was violated.  Section (a) is pretty clear the Constitution, By-Laws, or some other agreement needs to be violated.  Unfortunately, the Summary does not state a specific agreement that is violated.  Perhaps a potential violation could be found in Article 35A(c) of the league Constitution, “[a]ny person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.”  This is just a guess on what the NBA could argue for breach.

The second claim is 13(c) gives the league cause when an owner fails to pay debts to the league.  The league considers the $2.5 million dollar fine a debt to the league.  Since Sterling refuses to pay the fine, the league says that is grounds for terminating his ownership.  This seems like a fairly reasonable interpretation of the league’s constitutional language.

Lastly, and the point the league spends the most time on, is a violation of 13(d).  There seems to be a lot of overlap with this alleged violation and the one alleged in 13(a).  The league claims that 13(d) could be violated by, “[T]he taking or supporting of a position or action which may have a material adverse impact on the league or its teams.”  Again, just looking at the Constitution probably the closest clause for a violation would be Article 35A(c).

An option not mentioned in the Summary is the NBA may have used Article 17(a) without an express breach.  This allows the Constitution and By-Laws to be changed by a 3/4s vote.  If the owners employed enough solidarity, they could write-in any act or behavior to prohibit, and could have easily have created some sort of morality clause after the fact.  It is not clear if the owners utilized this provision or not, but it is a likely option.  This option was tossed around in the media, but it did not receive a lot of support because of the precedent it would set.  Theoretically the argument goes, since Sterling’s comments arose out of a private, taped conversation, then it open the doors for the owners to amend the NBA Constitution to prohibit any private behaviors they find objectionable in the future.  From the facts I have gathered, it is unclear if this option ultimately was used, however some gave it a lot of weight.

Sterling’s Response to NBA (out of court)

The response by Sterling is interesting because his arguments are a hybrid of criminal law and the NBA Constitution.

First, Sterling argues that the taped call is inadmissible.  It is against California law for taped calls to be permissible into court.  While Sterling acknowledges the NBA Board of governors does not follow strict rules of evidence (either under California or federal law), but he cites the NBA does have some standards for what evidence it will look at.

Then he turns his attention to alleged violation of the NBA’s Constitution.

A jealous rant to a lover never intended to be published cannot offend the NBA rules.

— Donald Sterling’s Answer To Charge, In the Matter of the Termination of the National Basketball Association Membership of LAC Basketball Club, Inc., 3 (May 27, 2014).

He argues that Article 13(a) is a stretch.  Since the clause has the word “willful” it means that Sterling had to intend the results of his comments.  Since his comments were made in private, it would be very difficult for the NBA to argue Sterling comments were made with the intention of causing the NBA harm.  If Sterling only made the offensive comments in private, it would be one thing.  However, Sterling has a history of offensive racially charged conduct, and the public interviews he made in his defense in the aftermath only seemed to reinforce what he said in private.

Similar logic is used to defend against the charge of violating 13(d).  He argues that since his conversation was in private he did not take a position that was meant to harm the NBA or its affiliates.  As indicated above, the topic of the conversation was not about the course of the NBA’s business, but it was an argument about Sterling’s apparent girlfriend hanging out with other men.

Conclusion

On Friday, Sterling filed suit against the NBA on May 29 for violation of constitutional rights, breach of contract, antitrust violations and more.  The suit is seeking $1 billion in damages.  Since the league makes it’s own policies, Sterling’s best chance for keeping his team may be fighting in federal court.

Sources:

NBA Constitution and By-Laws

NBA Summary of Sterling Termination Charge

Donald Sterling’s Response to NBA Charge

 

 

 

Search Engine Speech and Link Deletion

A ruling by the European Court of Justice may pave the way for users at least in Europe, and potentially in the United States, to remove entries from search engines.  Some are saying this is the new frontier of free speech.

Usually when I think of speech, I think of it coming from a human — or at the very least originating from a human somehow.  The internet is changing how speech is viewed, in particular how search engines create speech.

Google Link Deletion Case

In March 2010, Mario Costeja, a lawyer in Spain, was searched for by an internet user on Google on which links to two newspapers documented Mr Costeja’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts.  See Google v. Agencia Espanola de Proteccion de Datos (AEPD), C‑131/12 (CUIRA 2014) (links to full text of the opinion). Mr. Costeja first requested the newspaper remove the content.  Then he requested that Google remove links to the content, so that while the content would still be on the internet, it would be much more difficult to find without a search engine listing.

AEPD ruled the newspaper had a right to keep the content on the internet.  But it did not think Google had a right to link to the article because of privacy reasons.  The agency considered that that obligation may be owed directly by operators of search engines, without it being necessary to erase the data or information from the website where they appear.

Case of Search Engine Free Speech

There is some concern the Google case might have a ripple effect and impact free speech in the United States.  It is important to first understand why it is thought search engines create speech.

Google commissioned UCLA Law Professor Eugene Volokh in 2012 to write a white paper about search engines and the First Amendment.  In my opinion, his paper is the leading resource on how the First Amendment applies to search engines. Professor Volokh makes three arguments why search engines create protected speech.

There are over 100 billion searches a month … and we now update our index within seconds to ensure we show the freshest results. To make life easier, we’re increasingly able to provide direct answers to your questions. For example, ‘what’s the deepest lake in the world?’ (It’s Lake Baikal in Siberia at 1,741 meters) or, ‘when does my flight leave?’ or, ‘how many calories in a pancake?’

— Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

First, search engines are now programmed to give the user particularized about her search.  If a user searchers a movie, the search engine may show movie theaters and times that are near her.  Alternatively, if a user searches a famous person (celebrity, politician, etc.) the first result may be to a biographical database such as Wikipedia, IMDB, etc.  Volokh argues this is information the search engine prepared in anticipation of certain types of searches.

Second, search engines create short caption about the webpage.  It is standard practice that search engines along with name of website and link to it, provide a short description (usually less than 160 characters) summarizing the webpage’s content.  While website owners may supply their own captions, ultimately, it is the search engines themselves that have final discretion on what goes into the caption making it speech.

Thirdly, and most importantly to Professor Volokh, search engines compile results in a way that anticipated to be the most beneficial to the user.  This is the essence of a search engine — its rankings.  According to Professor Volokh, the rankings are what breed loyalty and keep users returning time after time.

Professor Volokh then compares the search engine speech to more traditional speech such as: guide books, directories, newspapers judgement on where to place stories and which stories to run daily, etc.  There are many instances in a more traditional sense where prioritizing information (that is created by a third party) is protected speech.

All of that speech by search engines is jeopardized if a user of the search engine decides to delete a link from the index. Then the index’s proprietary compilation is jeopardized and the caption is removed.  The ruling by the European Court of Justice allows potentially any user or non-user of a search engine to act as a censor over the search engine’s work product.  If users are allowed to unilaterally delete links it may fundamentally affect the search engine’s business.  Thus, the search engines may seek protection under the First Amendment.

Search Engine Optimization, Search Engines and the First Amendment

There is a big difference between a search engine and a traditional counterpart (like a newspaper selecting articles for the front page) — at least half of a search engine is mechanized!

Search engines use spiders (a computer program) to crawl the internet, which find new websites, and new content on existing websites.  A spider will follow the links on an individual webpage, that lead to another webpage and it’s links, until the spider crawls the entire search engine.  See Matt Cutts, How Search Works, https://www.youtube.com/watch?v=BNHR6IQJGZs (last visited May 16, 2014).  It is unclear to me at the time of this writing this blog post, how much protection purely mechanized speech would receive.

Where there is more human intervention in the search results is when a link is removed from the database.  See Google Removal Policies, https://support.google.com/websearch/answer/2744324 (last visited May 16, 2014).  Google’s removal policy is on a “case-by-case basis.”  To me, this implies that humans are involved in the analysis of which pages should be removed.  It would be very difficult for a program to not only take the particularized concerns into account, but also look at the concerns individually and make a judgement on the merits.  A removal from the search results can be because of a personal request, or because Google deems the content to spam (a violation of it’s quality guidelines).  The quality guidelines are constantly being updated to conform with the ever-evolving pattern and practices on the internet.  See Matt Cutts, Guest Blogging, http://www.mattcutts.com/blog/guest-blogging/ (last visited May 16, 2014) (noting that “guest blogging” is now considered a spammy practice).

Perhaps a better analogy would be library classification systems.  There are various library classification systems that are used to help users find the book they are search for with more ease.  Is the Dewey Decimal System speech?  Is the Library of Congress Classification speech?  Or the Scott-Polar classification system used at the National Snow and Ice Data Center Library speech? Search engine’s ranking system seem to be more of a classification system that allow searchers find the information they seek more easily, just like a library classification system.

It seems to me that the First Amendment would apply to the decision to the removal process because that is where the actual speech takes place.  If search engines mechanically add as much content as they can to their databases, there is no inherent value in gobs and gobs of information.  The value that Google, Bing, Yahoo, DuckDuckGo provide is in their curated results.  There is some speech in the pre-programmed algorithms that determine page rank.  Humans develop those algorithms based upon the views of the company.  However, I would argue that since that process is largely mechanized it is not clear how much protection the algorithms that determine the rankings deserve.

Arizona-Law-Firm

For example, when I searched “Arizona law firm,” Google’s index provides 21 million results.  This is a fairly specific search, a search term I could look up in a phone book, or perhaps another curated list. The amount webpages that Google returns for this search is mind boggling.  To put this in perspective the approximate population of the state of Arizona is 6.5 million people.  There are more than 3x as many results for Arizona law firms as there are people who reside in Arizona.

With the sheer number of results in Google’s database, how is it possible for a person or even a company to credibly know all of what is in its index?  Keep in mind that Google and other search engines offers global search results in virtually every written language.  I would assert through analytics companies are able to predict searcher’s preferences with varying degrees of success.  Software algorithms provide search engines the ability to discover meaningful patterns in data, which can later be used to determine user’s preferences.

Is it speech it really speech if a company is unaware it is making it?  I would argue that it sets a precarious precedent allowing full protections of the First Amendment for speech that a person or company is not even completely aware it is making.

Again, it is not the libraries classifications that are traditionally thought of as speech — it is which books libraries decide to remove, or keep that is a speech issue.  Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866 (1982) (noting the removal of books from a school library may implicate the First Amendment rights of students).

Two Different Types of Search Engine Speech

I would argue there are two different levels of protection that should be afforded to search engine speech.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

In a future blog post I will layout my reasoning why the removal and curation of the search engine index should receive heightened scrutiny.  On the other hand, the rankings, or mechanized speech should receive a lesser amount of scrutiny.

 

 

What is a Religion in a Legal Context – Truly Held Belief Test

Religion and the law is a complex and rich subject.  With it’s prominence in the First Amendment it is a surprise, at least to me, that the subject is not litigated more because the case law is far from certain.

This past week Alabama Supreme Court Chief Justice Roy Moore argued in a Pastor for Life Luncheon, that the First Amendment should only apply to Christians.   “They can’t define it they way Mason, Madison and even the United States Supreme Court defined it: ‘the duties we owe to the Creator in the manner of discharging it.’  They don’t want to do that because then it acknowledges the Creator is God.'” Moore said at 1:35 of the video, while referring to the case Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003).  Moore’s argument is since only Christianity says their God is the Creator, then Christianity should be the only recognized religion.  In his speech, Moore is frustrated with American courts for not defining religion.  “In the law, it isn’t just politically correct [to define what religion is] because we have been divorced from God for so many years.”  Moore argued at 2:35 of the video.

Previously, I have analyzed the Free Exercise of Religion, here, here and here.  However, it is still unclear what is a religion in a legal context.  In spite of Chief Justice Moore’s wishes, the Supreme Court of the United States have provided First Amendment protections for religions of various sizes, ideologies, and dates when they were established in the United States (some were established at the founding of our nation, others were established later).

I think it is a fair comment that religions are as vast and different as the people on the earth.  Furthermore, our beliefs, including religious beliefs change by time and because of technological advances.  Given that the First Amendment protects religious establishments and exercise of religion, defining what is or is not a religious can be a daunting task.

Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution.

United States v. Seeger, 380 U.S. 163, 174 (1965).

Defining a religion is tough stuff.  So how have the courts looked at it over the years?

There are different tests courts have used to define a religion.  In this first part of a series, I will look at the truly held belief test and its origins.

Truly Held Belief Test

United States v. Macintosh, 283 U.S. 605 (1931).

Mr. Macintosh, a Canadian citizen, petitioned for naturalization to the United States.  The only problem with the petition was Macintosh would not promise in advance to bear arms in defense of the United States unless he believed the war to be “morally justified.”  An implied part of being fit for citizenship at the time was “willing to support the government in time of war, as well as in time of peace, and to assist in the defense of the country, not to the extent or in the manner that he may choose, but to such extent and in such manner as he lawfully may be required to do.” United States v. Macintosh, 283 U.S. 605, 617 (1931).

The majority held Macintosh’s belief’s were not enough to overcome the legislative and judicial scrutiny of being a naturalized citizen.  The dissent said Macintosh’s “first allegiance was to the will of his God.” Id. at 629 (Hughes, C.J. dissenting). The dissent said that one’s freedom of conscience should be taken into account of such implied promises.  “When one’s belief collides with the power of the State, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”  Id. at 633-34 (1931) (Hughes, C.J. dissenting).

While the dissent was never binding law, it persuaded other Judges and Justices found it persuasive and used it in future opinions.

Berman v. United States, 156 F. 2d 377 (9th Cir. 1946).

Herman Berman registered for the Selective Service and Training Act of 1940.  Because of the registration he was made available for immediate duty and ordered to an induction center to join the armed forces.  He refused induction and was charged and convicted criminally of refusing to obey a board order.  Berman appealed the decision and sentence partly on religious grounds.

The Selective Service and Training Act stated: “Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Id. at 379. Berman objected to the Board’s interpretation of the clause because in his opinion the phrase “of religious training and belief” is limited to those who conscientiously opposed to war as a belief related more or less definitely to deity.

Thus, the issue before the Court is does religious training or belief require a deity?

Berman claimed that his Socialist beliefs should disqualify him from service.  In the defendant’s view the Socialist Party strove for the betterment of mankind and war contrary to that view. It is important to note neither the prosecution, nor either court questioned Berman’s beliefs.  It was noted with thorough documentation the defendant held his views publicly for many years prior registering for the Selective Service and Training Act.

The Government claimed that even though he held sincere views, sincere beliefs are not enough to constitute a religious belief.

The Court of Appeals agreed with the Government. “It would be quite ridiculous to argue that the use of the word ’religion’ could have been understood by the authors of this part of our
national charter or by those having to do with its adoption as meaning to be inclusive of morals or of devotion to human welfare or of government.” Id. at 380. The Court drew a line between moral beliefs and religious beliefs.  “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” Berman v. United States, 156 F. 2d 377, 381 (9th Cir. 1946) (quoting United States v. Macintosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J. dissenting).

The Berman court basically said the difference between a belief and a religious belief is the involvement in a higher power in that belief.

United States v. Seeger, 380 U.S. 163 (1965).

Three cases are combined together objectors of the Universal Military Training and Service Act in Seeger. The Act exempts persons from military duty “religious training and belief which Congress has defined as ‘belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.” Id. at 173 (internal quotation marks omitted). The definition disallows persons who want to be exempt for economic, sociological, personal, political reasons (Congress may have been specific because of the Berman case, supra).

The Court noted when amended the Universal Military Training and Service Act in 1940, Congress used the words form Chief Justice Hughes’ dissent in Macintosh. Id. at 175.When Congress made the changes it replaced ‘God’ with ‘Supreme Being’ it likely broadened the religious protections, especially the legislative body chose not to define the phrase Supreme Being.  The Court held the change to the statute constituted an “ever-broadening understanding of the modern religious community.” Id. at 180. The Court consults several leading religious resources to provide support to its view.

With an ‘ever-broadening’ sense of religion, and with religion as already a terribly difficult topic to define (see blockquote from Seeger in the introduction to this blog post), the Court draws up a test for religion.  “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption? This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.” Id. at 184.  The Court reasoned that anyone is allowed to believe in anything.  Furthermore because of the nature of religion proving a belief is impossible.  The Court made the assertion: “while the ‘truth’ of a belief is not open to question, there remains the significant question whether it is ‘truly held.’” Id. at 185.

Conclusion

There is some debate about whether the Seeger Court overstepped its judicial bounds with its interpretation of ‘Supreme Being.’  Putting that discussion to the side, it is important to note each court care to say that religion is ever evolving.  That point can be evidenced in the evolution of the opinions on the Universal Military Training and Service Act.  Also, it is important to remember the Court was not directly ruling on the First Amendment, but via the congressionally created exception for the statute.  The “language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like  ‘religion’ or ‘speech,’ which this Court is freer to construe in light of evolving needs and circumstances.” Welsh v. United States, 398 U.S. 333 (1970) (Harlan, J., concurring).

If anything, this line of cases shows difficult it is for judges to determine what is a truly held belief in a religious sense.  Courts do not want to be in the position of defining what a definition is, not only because of the sheer complexity of the task, but because the definition changes with time.  They do not want to update their definition of religion every generation to meet society’s present needs. On the other hand, in the cases of military service, courts do not want to permit abuse of the system by allowing people who have insincere beliefs to game the system.

Truly held beliefs is one way to judge religious beliefs.

 

 

 

 

 

 

 

 

The Free Exercise of Religion – Part 3

This blog post is the third part in a series examining the free exercise of religion, particularly in Arizona.  It is helpful to read the blog posts chronologically, but it is not necessary.

Part 1 – Supreme Court Cases and federal law

Part 2 – Arizona Constitution and State law

The Arizona Supreme Court also has looked at the issue of what it means to freely exercise religion.

State v. Hardesty, 214 P.3d 1004 (2009)

Danny Ray Hardesty drove his van through the night in Arizona.  A police officer pulled him over for a broken headlight.  During the stop the officer smelled marijuana and discovered a baggie containing fourteen ounces of marijuana.

Hardesty never contested the marijuana or possession of it, but fought the charge on First Amendment grounds.  As a member of the Church of Cognizance, his religion told him that marijuana is the sacrament.  According to Hardesty, the Church is decentralized and consists of “individual orthodox member monasteries.”  Each individual monastery is able to determine its own mode of worship.  Hardesty’s mode was to smoke and eat marijuana without limit as to time or place.  He argued the federal and Arizona constitutions, federal Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb, and the Arizona Free Exercise of Religion Act (FERA) Ariz. Rev. Stat. § 41-1493.01.

The trial court convicted Hardesty, finding his defense was not recognized.  The court of appeals affirmed the conviction while taking judicial notice of the dangers marijuana pose to establish the state’s compelling interest in banning the possession or use of marijuana.

The Arizona Supreme Court looked to see if the State’s compelling interest was narrowly tailored to outweigh violation of Hardesty’s religious freedoms.  The interesting part of this case is neither side gave anything, both argued for absolutes.  Hardesty argued to be able to consume marijuana whenever and however he wanted.  It did not matter if he consumed marijuana while driving, or during religious worship — his religious beliefs could not be limited.  The State took the polar opposite approach saying any use of marijuana whatsoever was unacceptable and a potential harm to society. “Hardesty claims an unlimited religious right to use marijuana when and where he chooses, and in whatever amounts he sees fit. In the context of this case, no means less restrictive than a ban will achieve the State’s conceded interests. State v. Hardesty, 214 P.3d 1004, 1009 (2009).

Neither side would give an inch.  This put the court in the position of choosing between two absolutist positions, hardly an ideal situation.

The Court reasoned in cases like Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1459-60 (D.C. Cir. 1989) where courts have found other drugs suitable during religious worship.

Members of the Native American Church assert only the religious right to use peyote in limited sacramental rites; Hardesty asserts the right to use marijuana whenever he pleases.

State v. Hardesty, 214 P.3d 1004, 1010 (2009).

The Arizona Supreme Court said because Hardesty’s use of marijuana was not narrowly tailored to religious purposes it did not outweigh the State’s compelling interest.  This is a 180 degree shift from what the written rule is.  The rule says in both RFRA and FERA that the government has the burden to prove the compelling interest and to tailor its actions.  Because religious freedoms are normally protected, both state and federal legislators have said in the legislation it is the government’s burden to prove why there should be an exception.

Even though this rationale of the Arizona Supreme Court does not comport with the written law, it does follow United States Supreme Court precedent.  Back in Part 1, I discussed two different cases where potentially dangerous acts were allowed by the United States Supreme Court in the name of free exercise of religion: animal sacrifices during religious ceremonies; and a sacramental tea that contains a hallucinogen.  One way to look at both of these cases is the dangerous activity was only practiced during religious ceremonies.  In neither O Centro Espirita Beneficente Uniao do Vegetal, nor Church of Lukumi Babalu Aye did either church demand an unrestricted right to exercise their religion.

State v. Fisher, P.3d 663 (Ariz. Ct. App. 2008)

Defendant Kelly Fisher is a member of the Fundamentalist Church of Jesus Christ of Latter–Day Saints (FLDS Church) and lived in Colorado City, Arizona.  Fisher practiced polygamy, having multiple wives at once.  Polygamy is not legal in Arizona, but that is not the big issue.  J.S., a  thirteen or fourteen year old girl, became Fisher’s wife.  At the age of seventeen, J.S., still a minor, had a baby and listed Fisher as the father on the birth certificate.

The state of Arizona prosecuted Fisher criminally for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor.

At the time of trial Fisher moved to dismiss the criminal case against him because of the First Amendment right to free exercise of religion and because the statutory definition of the term “spouse” was vague, among the other defenses that would be used (I am only interested in the part of the case dealing with the First Amendment).  Before the trial Fisher documented the culture, history, and practices of the FLDS Church through a motion in limine which was granted by the judge.

The Court noted early in the decision polygamy has clearly been denied First Amendment protections for more than 100 years. Reynolds v. United States, 98 U.S. 145, 168 (1878) (upholding a territorial bigamy law because of the “evil consequences supposed to flow from plural marriages.”).  While Reynolds is more than 100 years old, the court acknolwedged that it is still good law, and noted it is cited in more contemporary cases. See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 485 U.S. 660, 671 (1988) (Smith I ) (noting “bigamy may be forbidden, even when the practice is dictated by sincere religious convictions”); and see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68 n. 15 (1973) (“Statutes making bigamy a crime surely cut into an individual’s freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision.”).

**AzCommonLaw note: The Arizona Constitution prohibits polygamous marriages.  Ariz. Const. art. 20, § 2.

Defendant Fisher also argues that Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) impliedly overrrules Reynolds because of the protection afforded by the First Amendment.  However, the Court of Appeals took the opposite view.

[T]he Supreme Court cited Reynolds favorably to note the limits of First Amendment protection. . . . To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself, contradicts both constitutional tradition and common sense.

— State v. Fischer, 219 Ariz. 408, 413, (Ariz. Ct. App. 2008) (internal citations omitted).

It is my understanding the limits applied should be on the government, not on its citizens.  This opinion was written by the Arizona Court of Appeals in 2008 well after both RFRA and FERA were passed.  Furthermore, O Centro Espirita Beneficente Uniao do Vegetal was decided in 2006 and one of the holdings in that case is the GOVERNMENT has the burden of demonstrating the compelling interest and showing its actions are narrowly tailored to meet its objectives. “[T]he Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act].” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (internal citations omitted). Not only is O Centro Beneficente Beneficente Uniao do Vegetal, much more recent than the United States Supreme Court precedent relied upon by the Arizona Court of Appeals in Fisher, O Centro also holds true to the spirit of the legislatively passed RFRA and FERA.

Judicial Burden Shifting

With all of this precedent laid out in the first two sections of this analysis, why are the Arizona courts seemingly misconstruing the law?

The Supreme Court muddied the waters Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), overturning years of precedent that was established in Sherbert v. Verner, 374 U.S. 398 (1963) (establishing what would be known as the Sherbert rule that was later incorporated into the federal Religious Freedom Restoration Act).

In Smith, Respondents were fired from their job with a private drug rehabilitation organization for ingesting peyote for sacramental purposes during a religious service with the Native American Church (a federally recognized church).  The state of Oregon later denied respondents unemployment benefits because the discharge was due to “work related misconduct.”  The State argued the illegality of peyote was central to their claim of denying unemployment benefits.  The United States Supreme Court in 1987 agreed (Smith I) noting that if the criminal law is facially neutral (does not discriminate), denying unemployment benefits does not violate the First Amendment.  The United States Supreme Court sent the case back down to the Oregon Supreme Court to determine if the use of peyote violated the State’s controlled substances act.  The Oregon Supreme Court found since there was not a specific religious exception in the law, the use of peyote did in fact violate the law.  Then the United States Supreme Court heard the case for a second time (Smith II) to determine whether the prohibition was valid under the Free Exercise clause.

The Court has trouble with the concept of what a religion is, saying that anyone could claim a particular religious belief for her advantage.  Justice Scalia writing for the majority makes a historical note, free exercise of religion is most likely to be upheld when coupled with another right.

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.

— Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990).

When a claim of free exercise of religion is coupled with another claim then the court does not have to enter the muddy situation of deciding what is and is not a valid religion, who is or is not trying to game the system, etc.

Further on in the analysis the Court distanced itself from Sherbert, in spite of the fact both (Sherbert and Smith) cases are about extending unemployment benefits to workers who were discharged because of their religious beliefs.  The Court said the distinguishing mark is the present case, Smith, deals with an across the board, criminally prohibited drug, peyote.

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.

Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990) (internal quotation omitted).

Smith, effectively shifted the burden in free exercise cases when there is socially harmful conduct from the government having to prove a compelling governmental interest to the individual having to prove his religious freedom is more important than an absolute public policy.

Conclusion

It appears that the Arizona courts struggle with some of the same concepts the United States Supreme Court did in Smith.  Despite the fact legislation is enacted on both the state and federal level (RFRA and FERA) setting the standard for religious freedom, and there are at least two more recent United States Supreme Court decisions (Church of Lukumi Babalu Aye and O Centro Espirita Beneficente Uniao do Vegetal) using the new legislative standards, Arizona Courts are still using what appears to be overturned precedent.

The current standard of — the First Amendment provides protection for free exercise of religion, except when the government has a compelling interests and narrowly tailors its actions — is really tough burden for the government to overcome.  However, it does create the questions of what is a genuinely held religious belief (not trying to game the system), and what is a genuine religion.  Legal scholars have not really looked at this issue (a few have) and I will post more about this in the future.

For now, it appears there are clear standards for adjudicating issues involving the free exercise of religion, but because of past precedent courts on all levels have had trouble applying the rules in a consistent fashion.