Tag 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.


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

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.

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.


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.



Media Defamation by Misrepresentation and a Potential First Amendment Defense

“You’ve got the wrong person!”

A case of misrepresentation by the media occurs when an individual who has done nothing wrong, has no connection with any illegal or immoral activities, is identified by the media in an negative and untrue manner.  This harms the individual’s reputation.  Depending on how many media outlets misrepresent the individual and their reach, the individual may not be able to escape the defamed tarnished reputation by moving.

One man in Phoenix Arizona had the media misidentify him in perhaps one of the biggest national news stories of 2014 — the Fort Hood shooting. My Fox Phoenix explains the story:

“Media outlets across the globe are confusing a valley veteran named Ivan Lopez, for the Fort Hood shooter who shares the same name.

“Authorities identified the Fort Hood shooter, who left three dead before turning the gun on himself, as 34-year-old Ivan Lopez. The other Ivan Lopez, 32 and from Phoenix, shares many similarities to the suspected shooter. He also is an Army veteran who had been stationed at Fort Hood three years ago, and served in Iraq… What seemed like a harmless coincidence at first, now has the veteran fighting to save his reputation. Lopez says his phone has been ringing non-stop since authorities released the suspect’s name.”

First Amendment a Defense by the Media for Negligently Misrepresenting an Identity

This raises a pretty interesting issue: is the media protected by the First Amendment when negligently misrepresenting an individual’s identity that results in libel?

The First Amendment protects the freedom of the press. “Congress shall make no law… abridging the freedom of speech, or of the press.” U.S. Const. amend. I.

The First Amendment is not absolute and the media cannot say whatever it wants without repercussions. See New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964). A vast majority of the defamation case law centers on either a group of people or a specific person allegedly committing various acts.  In these cases, it is to be determined how much truth there is to the claims, which will make a claim of defamation.  When there is a case of misrepresented identity, defamation hinges on whether the person was truly misrepresented or not.  This case it is clear, Mr. Lopez of Arizona was tragically misrepresented by various media outlets world-wide to be associated with the Fort Hood shooting.

To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.

Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989).

The media can be liable if they acted negligently to ascertain the facts about a private individual.  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (holding that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, on the ground of a privilege protecting discussion of any public issue without regard to the status of a person defamed).  When the individual is a private citizen and not a public figure the necessary degree of fault which must be shown in a defamation action is negligence. Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 353 (1974) (Blackmun, J., concurring) (noting “[A] State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault”).

This case does not deal with a public figure or a limited public figure (judicially created distinctions in First Amendment analysis).  Mr. Ivan Lopez, 32 of Arizona, was not running for or elected to a public position.  Furthermore, the only reason why Mr. Lopez is in the news is because he shared a name and had similar characteristics to another individual who was in the news.  Mr. Lopez who was a private citizen who was injected into the Fort Hood shooting coverage because of false media reports. It appears the only reason why Mr. Lopez of Arizona spoke to the media was to clear his good name and clear up the misrepresented identity.  For all intents and purposes Mr. Lopez was a private citizen who did not want or seek any attention.

By misrepresenting Mr. Lopez of Arizona as the shooter at Fort Hood, the media outlets who made the wrong report not only had members of society, but he even worried about his family’s thoughts.  “I had people Tweeting my picture, saying I was a ‘piece of crap,’ I was a ‘monster.’ … They don’t even know who I am”…. “Lopez was able to warn his wife, Ysabel, moments before she got a call from someone asking, ‘Do you know your husband just shot himself?'” AZ Family reported.   The damage to Mr. Lopez’s reputation was not limited to Arizona, or the United States; he was brought into disrepute world-wide via misrepresentation.

This is not the first time the media’s lack of due diligence and fact-checking has led to the wrong person to be associated with tragedies.  Misinformation by law enforcement in the Newtown school shooting led to many major media outlets identify Ryan Lanza as the shooter.  The real shooter turned out to be his brother Adam Lanza, who murdered many people including his mother.   In the Aurora theater shooting ABC News incorrectly suggested a link between the shooter James Holmes and the Tea Party and many private citizens identified the wrong James Holmes on social media.

In these cases it is unclear if any litigation resulted because of the misidentifications.

It is likely that a court would find that the misrepresentation defamatory.

Possible Damages

It is unclear how this negative publicity currently affects the Mr. Lopez in Arizona, or if there will be any long-term ramifications.  If Mr. Lopez could show how the media coverage financially impacted his life, he may have a claim for compensatory damages.  Under Arizona law Mr. Lopez could only sue once for each instance of the defamatory publication. Ariz. Rev. Stat. § 12-651.  The suit however, would cover damages from all jurisdictions.

However, the Supreme Court indicated it is hesitant to award punitive damages in the cases of mere negligence by the media.

Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

Punitive damages are mean to to punish.  The Court is uneasy about punishing the media for mere negligent acts against private citizens.  With the media who failed to fact-check and perform its due diligence this is only a case of negligence.  With both names being similar, the men are about the same age, both served in the military at Fort Hood (although at different times), carelessness led to the wrongful reporting.  It certainly was not an intentional act aimed to harm Mr. Lopez of Arizona, like as in the standard of malice.  Thus, punitive damages most likely would not be an option.


It is an interesting case to consider.  Even though the First Amendment was designed to protect the press, the press does not do its job when it negligently misrepresents individuals.  This is a type of false speech with an injurious effect that is not protected under the First Amendment. United States v. Strandlof, 667 F.3d 1146, 1157 abrogated by United States v. Alvarez, 132 S. Ct. 2537 (U.S. 2012) and vacated, 684 F.3d 962 (10th Cir. 2012) (Holmes, J., dissenting) (theorizing it takes more than false speech to violate the First Amendment, arguing it takes injurious speech); see United States v. Alvarez, 132 S. Ct. 2537, 2545 (U.S. 2012) (recognizing “Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.”)

Hopefully these sorts of cases will be avoided in the future by the media conducting some very simple fact-checking before publication.

Is Arizona SB 1062 Constitutional?

One of the main issues raised by the potential passage of Arizona SB 1062 into law is whether corporations have right to freely exercise their religious beliefs.  It is an interesting concept because corporations are inanimate objects and currently it is unclear whether the First Amendment affords corporations a right to religious freedom.

Historically, the Bill of Rights have applied to people and not corporations.  It is because the traditional thought has been that individuals and corporations function differently.  Corporations cannot freely assemble under the First Amendment.  Corporations have to deal with cruel and unusual punishment in the Eighth Amendment.  Conversely, people can do things that corporations cannot.  As Shakespeare recognized, people are unique:

If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?

— William Shakespeare, The Merchant of Venice, act 1, sc. 3.

However, the recent trend is for courts to recognize liberties for corporations that have been traditionally reserved only for people.  The best example of this is where the Supreme Court held the government cannot suppress political speech on the basis of the speaker’s corporate identity Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010).  It appears that the court may be poised to extend religious liberties to corporations next.

Much of the language of Arizona Religious Freedom SB 1062 is very similar to the federal Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb.  RFRA generally prohibits the government from substantially burdening a person’s exercise of religion.  The language of the federal legislation RFRA refers to a person.  However, as noted in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013), if the word person is not defined in the statute then the definition is used from 1 U.S.C. § 1.

[T]he word[ ] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013) (quoting 1 U.S.C. § 1).

Do not ask me why Congress created this default definition of the word person.  The definition includes pretty much any type of person, group, business, association or corporation conceivable.  It does not make much sense to me, but that is the way it is.  Either way, the statute 1 U.S.C. § 1, is also an indication of the broadening of the word person.

The United States Supreme Court via Hobby Lobby Stores, Inc. v. Sebelius, 134 S. Ct. 678 (U.S. 2013) (cert. granted) may directly hold that corporations have rights to religious freedoms.  Hobby Lobby is a closely held corporation.  The Green family runs the arts and crafts store with religious principles: it is not open on Sundays; has a practice of allowing employees time for family and worship; and has a sizable amount of religious themed items for sale.   The Hobby Lobby/Greens sued the federal government because the Affordable Health Care Act (Obama Care) mandated that corporations must provide certain types of preventive health services, including contraceptives.  Hobby Lobby then sued claiming RFRA gave them the right to opt out of the Affordable Health Care Act because corporations have religious freedoms.

On appeal the court refused to look at the issue whether corporations have a right to religious freedom from the Free Exercise clause in the First Amendment.  Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1121 n.2 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013).  The United States Supreme Court will have a chance to rule on this issue.

It is speculative what United States Supreme Court will address in the Hobby Lobby case, but if the Court does rule on whether corporations have a right to religious freedoms then it will provide legal cover for legislation like Arizona’s SB 1062.  Even though the bill and the court case have different catalysts, they are both touching upon the same issue: do corporations have a right to religious freedom?

Corporations do not bleed when pricked.  Corporations do not laugh when tickled.  Corporations do not die when poisoned (they cannot literally be poisoned). Corporations may seek revenge.  However, the point is that even after all the time has passed since Shakespeare lived, there is still a distinct difference between people and corporations.

However the line is starting to be blurred between people and corporations in the courts.

Arizona Religious Freedom Bill SB 1062

The Arizona Legislature passed (through both the House and the Senate) a bill that would allow businesses to have the religious freedom to choose who it conducts its business with.

The newspapers have just summed up the bill without really into the text of the language.  In fact, many traditional newspaper articles I have read about the subject don’t even mention either the House or Senate Bill number for readers to read the text for themselves.  Here is the text of Arizona SB 1062, so you can reference the actual bill from the Arizona Legislature for yourself.  Also, here is the Fact Sheet for SB 1062 compiled by the Arizona Legislature for members to have an objective guide about the bill.

Let’s walk through the bill.  Because one of the first rules of statutory construction (interpreting a statute) is to read it in its entirety.  The bill is pretty short, so let’s go through it, section by section.

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C of this section, state action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

The first two clauses set out the scope of the bill, or in which ways it can be applied.

Section A states religious freedom is a fundamental right.  The right of freedom of religion can be found in the First Amendment’s ‘Establishment’ and ‘Exercise’ clauses. Furthermore, the Supreme Court has noted that freedom of religion is a fundamental liberty.  Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 40 (1947).

At the end of section A an interesting phrase is used, “government actions that are facially neutral” (facially neutral is a fancy way of saying the policy applies generally). This is used to show the strength of the right of freedom of religion.  The author of the bill is saying, even if the legislature later creates a bill that seems like it does not affect religion, no holiday decorations will be allowed on commercial premises, the freedom of religion will trump any legislation that is passed by the legislature. Even though the legislation is not religious in nature, an exception will be made for religious purposes.

Section B starts to restrict what the government can do.  Unless whatever action taken by private citizens is a “substantial burden” to Arizona, the state cannot restrict a person’s right to religion even if it is applied generally.  So going back to our holiday decorations ban, unless it somehow “substantially burdens” the state, then the government cannot take any action.

C. State action may substantially burden a person’s  exercise of religion only if the government or nongovernmental person seeking the enforcement of state action demonstrates that application of the burden to the person’s exercise of religion in this particular instance is both:

1. In furtherance of a compelling governmental interest.

2. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, regardless of whether the government is a party to the proceeding.

Section C creates the only exception of when a government or even a private person or company may interfere with religious freedoms.  It uses the standard of strict scrutiny which is a level of constitutional judicial scrutiny.  The United States Supreme Court created judicial scrutiny to evaluate laws that might infringe upon fundamental rights.  Holding fundamental rights to be the most important, the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.  This creates a very high hurdle for any potential exception to the legislation.

Section D allows any person, it does not have to be a business, to make a claim of religious freedom.   This claim can be made against the government or against a private citizen or company.

E. A person that asserts a violation of this section must establish all of the following:

1. That the person’s action or refusal to act is motivated by a religious belief.

2. That the person’s religious belief is sincerely held.

3. That the state action substantially burdens the exercise of the person’s religious beliefs.

F. The person asserting a claim or defense under this subsection D of this section may obtain injunctive or and declaratory relief.  A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

Section E lays the foundation for a claim of infringement of religious freedom.  This standard would be used in court. The plaintiff has the burden of proving his/her religious freedom are infringed upon.  The problem with the three prongs that concerns me is the third prong.  In both Sections C and D language is used to indicate either the state or a nongovernmental actor can infringe upon the religious freedom.  The third prong of Section E only provides for governmental infringement.  Do not be confused.  Because even though earlier sections made a distinction between governmental and nongovernmental action, this section includes both even though “state action.”  See Section H for clarification on “state action.”

Section F provides for remedies.  Injunction relief would allow an individual to ask a court to either start or stop an action. Basically this allows the court to force change.  This is an important option because without injunctive relief the same action, either from the government or a nongovernmental actor, could continue to persist after the decision.  Declaratory relief is a resolution where the judge rules on a matter on an issue of law on undisputed or relatively undisputed facts. Thus, the statute does not provide for any monetary damages.

G. For the purposes of this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

H. For the purposes of this section, “state action” means any action, except for the requirements prescribed by section 41-1493.04, by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made by the government or nongovernmental persons.

Section G is important because it defines the term “substantially burdens.”  Earlier in Section E the term “substantially burden” is used to in what the plaintiff must prove to the judge in a claim.

Section H defines the term “state action” to include pretty much anything under the sun, including nongovernmental actors.  This helps clarify Section E.  Instead of conflicting with the earlier sections by not including non-governmental actors, the Arizona Legislature made up for this by sloppily and confusingly defining state action to include nongovernmental actors.


This bill allows individuals, corporations, partnerships, churches, religious assemblies, a way to assert their religious freedoms have been infringed and a legal avenue to correct it.

One impact of this bill is to give businesses and corporations religious freedoms.  Typically, religious freedoms have been though to a freedom for a person, not an inanimate object like a corporation or business.  This bill could help change that, at least in Arizona.  The United States Supreme Court already has ruled that businesses and corporations have the right to free speech in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).  And this term, the United States Supreme Court may touch on the concept of businesses and religious freedoms in the case in Sebelius v. Hobby Lobby Stores Inc. 13-354 (2014) http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-354.htm.

Another impact is discrimination.  This is the major critique of the bill and I agree with it.  Our freedoms found in the Bill of Rights are not absolute.  When competing interests are at odds we as a society must act in fairness.   Here both religious freedoms and equal protection are at odds.  Equal protection is in place to protect the most vulnerable members of our society who have been discriminated against and at times had their rights taken away.

There is a better way to balance both religious freedoms and equal protection interests than this bill.

First Amendment Protections for Bloggers

As the internet evolves the rights and responsibilities of its users become more clearly defined.  Courts have found themselves in the position of having to apply the common law precedent to the Internet.  A recent case out of the Ninth Circuit Court of Appeals is helping to legally define the protections of bloggers on the Internet. Obsidian Fin. Grp., LLC  v. Cox, No. 12-35238, D.C. No. 3:11-cv-00057-HZ (9th. Cir. Jan. 17, 2014).

The facts are not as clear as I would have liked, so I will try my best to distill them.  Summit Accommodators voluntarily petititoned for Chapter 11 bankruptcy in late 2008. The defendant Kevin Padrick, a senior principal and co-founder of Obsidian was appointed as a bankruptcy trustee. Crystal Cox is a self-appointed real estate whistleblower.  Cox created and wrote content for blogs: http://www.obsidianfinancesucks.com and http://www.summit1031sucks.com.  Some of the claims Cox made about Padrick on the blog, he is: corrupt, committed tax fraud, and called him derogatory names.  Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011).  Obsidian Financial Group and Padrick sent Cox a cease and desist letter, but she continued anyway.

One observation the district court made was Cox did not try to attempt any neutrality.  With domain names like http://www.obsidianfinancesucks.com visitors should know that the blog will take a critical stance, “which expressly discloses its bias against bankruptcy courts, bankruptcy trustees.”  Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 2745849 (D. Or. July 7, 2011) adhered to in part on reconsideration, 812 F. Supp. 2d 1220 (D. Or. 2011) aff’d, 12-35238, D.C. No 3:11-cv-00057-HZ (9th Cir. Jan. 17, 2014).  Many of the blog posts were not counted as libelous because they were based upon opinion rather than fact.  However, the district court found one blog post libelous in nature because it made “fairly specific allegations [that] a reasonable reader could understand . . .to imply a provable fact assertion.” Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1233 (D. Or. 2011) aff’d, 12-35238, 2014 WL 185376 (9th Cir. Jan. 17, 2014).

Cox then asserted that the First Amendment offered her protections from liability deriving from New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  First, she claimed that the subject matter was of public concern.  Second, both Padrick and Obsidian were public figures.  The judge rejected both of these arguments saying that neither Obsidian nor Padrick sought to be a public or limited public figure.  Instead, Cox created the controversy around them.

Both parties appealed.

The Ninth Circuit Court of Appeals reasoned that since the New York Times case, courts have not given any extra protection to journalists than they have anyone else. “[E]very other circuit to consider the issue has held that the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers. . . We agree with our sister circuits.” Obsidian Fin. Grp., LLC v. Cox, 12-35238, D.C. No. 3:11-cv-00057-HZ (9th. Cir. Jan. 17, 2014).

The Court went even further by saying that Padrick’s actions were a matter of public concern.  Since Padrick was the trustee of failed ponzi scheme that involved tens of millions of dollars his actions were of public interest.  Furthermore, because Cox accused Padrick of fraud among other things, her accusations were also a matter of public concern.

One thing the Ninth Circuit Court of Appeals did not address is how she made her accusations.  Some individuals have asserted that Cox’s motives  are not all that pure and even go so far as to call her manipulative with financial motives, rather than a journalist.  Critics say because her day job is to manage people’s reputations on the internet and when acting as an investigative journalist, Cox has registered dozens of domain names to negatively influence the search results of a person’s name. Cox will then ask for a fee in order to repair one’s reputation.  See Complaint at 2-4 Randazza v. Cox, 920 F.Supp.2d 1151 (D. Nev. 2013) (No. 12-02040).

In my opinion, part of the issue is definitely how Cox made the speech.  By linking together multiple websites together to voice her opinion, Cox manipulated the search engine results.  Professor Eugene Volokh, who represented Cox at the oral argument in front of the Ninth Circuit Court of Appeals, argued previously that search engine rankings are a type of corporate speech made by the search engines.  If Professor Volokh’s argument is believed, then Cox’s speech should not be considered pure at all.

I do not believe there is any case law on whether search engine manipulation can be considered defamation or not.  However, this technological part of the argument is something that the Court missed in their analysis.  In a later post, I will analyze Professor Volokh’s argument about search engine rankings being considered speech, and the logical extension, if search engine rankings are manipulated can that be considered defamation.

Revenge Porn Legislation

Technology allows scorned lovers to easily extract retribution by posting nude photos or videos with the intent to humiliate.  Arizona is among the many states whose legislature has proposed bills to outlaw ‘revenge porn.’  The Arizona bill would make it unlawful to:

[K]nowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

The language of each bill is different, which in turn effects how it is implemented. As some critics have noted this particular bill does not allow for any exceptions.  It precludes revenge porn in all circumstances.  University of Arizona law professor Derek Bambauer, says the the bill is “almost certainly” unconstitutional because of the breadth of the scope.  For example, if former Rep. Anthony Weiner did not release the picture of underwear-covered genitals, and instead a journalist broke the picture and the story it may be illegal under this proposed law.  This piece of legislation could violate the First Amendment by restricting the Press’ ability to report on issues of public concern.

A personal concern I have of the legislation is that the bill only requires written consent.  Probably just mere consent is too low of a standard because it does not take into account a person’s knowledge of how the picture will be used.  A better standard might be informed consent of the scope of use.  This would cause the subject of the photos to be educated about the intended use.  There is a saying that the internet is forever.  It can be impossible to erase something off of the internet once it is posted, and as technology continues to advance to make it easier to post things online this can be a vexing problem for revenge porn.  That is why it is important that a person understands what will be done with the photos when consenting, rather than just giving consent itself.

This is a relatively new phenomenon and the constitutionality of legislation outlawing revenge porn is currently being debated by legal academics. I think it will be really interesting to see how privacy concerns are addressed with the First Amendment when dealing with revenge porn.