Communication Currents

The following is a review of Supreme Court First Amendment decisions in the 2015–2016 term by Juliet Dee, Ph.D.

Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) 

So you’re a hard-boiled New Jersey detective. The year is 2005. Your mother, who is bedridden, asks you to pick up a yard sign for the campaign of Lawrence Spagnola, who is challenging the incumbent mayor of Paterson. You have no intention of voting for your mom’s candidate, but you’re a good son and you pick up the yard sign. The story would end here, except that some senior police officers see you with the yard sign and tattle to the police chief, who favors the incumbent mayor, Jose Torres. The chief of police, James Wittig, is so angry that he demotes you. Suddenly, you’re back on the beat as a uniformed officer and you’re no longer a detective (stiff punishment for the infraction of trying to deliver a yard sign to your mother).

Film noir it ain’t.

But, ludicrous as it sounds, this really did happen to Jeffrey Heffernan, a police detective in Paterson, NJ. Heffernan filed suit, charging that the police force had violated his First Amendment rights. A jury ruled in Heffernan’s favor in the federal district court, but the judge set aside the verdict. At a second trial, the judge granted a summary judgment to the City of Paterson, but this was overturned on appeal. At a third trial, a different judge again granted a summary judgment to the City of Paterson, and the U.S. Court of Appeals for the Third Circuit affirmed. By this time, a decade had passed, but Heffernan persuaded the U.S. Supreme Court to hear his case.

Writing for the majority, Justice Stephen Breyer first argued that whether or not Heffernan was engaging in political speech, Police Chief James Wittig may have believed that Heffernan was doing so. Breyer explained that government employees may engage in political speech, provided that their speech is not disruptive at work. Furthermore, to punish a government employee for engaging in non-disruptive political speech violates his First Amendment rights. The High Court thus ruled in Heffernan’s favor and remanded the case to the federal district court in Newark, NJ, to determine whether the police chief did indeed act with punitive intent in demoting Heffernan. In other words, the High Court ruled that Heffernan may now pursue his claim that Wittig violated his First Amendment rights without having his suit dismissed on the grounds that he had not tried to engage in political speech in the first place, as the lower courts had ruled for the first 10 years.

Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (2016) 

Rebecca Friedrichs, nine other teachers, and the Christian Educators Association filed suit against the California Teachers Association, arguing that they should not be required to pay union dues. The question in Friedrichs is whether or not unions representing public employees can require non-members to pay their “fair share” of the costs of collective bargaining. The Supreme Court had said “yes” in Abood v. Detroit Board of Education (1977). In that decision, the High Court held that in an “agency shop” arrangement, in which the union represents every employee in collective bargaining agreements, employees who choose not to join the union must still pay a fee to cover a “fair share” of the union’s costs. These fees compensate the union for collective bargaining; the fees are equal to the cost of union dues. Despite the High Court’s ruling in Abood, two cases in the past five years have questioned Abood’s validity for “impinging” on employees’ First Amendment rights. In the first case, Knox v. Service Employees International Union (2012), the Court held that unions cannot impose extraordinary fees on non-members without first receiving non-members’ affirmative consent. In the second case, Harris v. Quinn (2014), the Court held that requiring the plaintiff, Pamela Harris, and other medical personal assistants to pay union dues was a violation of their First Amendment right of association.

Relying in part on the Supreme Court’s rulings in Knox and Harris, the plaintiffs in Friedrichs v. California Teachers Association are calling on the Court to overrule Abood, arguing that public sector collective bargaining is political speech. Furthermore, they contend that compelling them to subsidize political speech violates the First Amendment. The 10 teachers argued that all of a public-employee union’s actions are attempts to influence public policy, and therefore non-union members should not have to pay any fees to support the union if they object to its activities. Following the death of Justice Antonin Scalia in February 2016, however, the High Court split 4-4. This means that the California law requiring teachers to pay union dues, which the U.S. Court of Appeals for the Ninth Circuit had upheld, will remain in place. It does not, however, set a nationwide precedent.

Zubik v. Burwell, 136 S. Ct. 1083 (2016) 

Remember Burwell v. Hobby Lobby from 2014? Zubik v. Burwell (2016) is a sort of Hobby Lobby 2.0. LikeHobby Lobby, Zubik involves the Establishment Clause of the First Amendment. In November 2015, the U.S. Supreme Court consolidated seven cases that challenged the contraceptive mandate of the Affordable Care Act) (ACA); the seven cases are identified as Zubik v. Burwell. The plaintiffs argued that the Affordable Care Act violated the Religious Freedom Restoration Act. Whereas Hobby Lobby applied to closely held for-profit corporations, Zubik involves religious non-profit corporations such as hospitals and universities. These non-profits mounted a legal challenge to an ACA provision that allows their employees to obtain coverage of contraceptives through their health insurance, despite the fact that the insurance companies and the government rather than the religious non-profits would provide the contraceptive coverage. The hospitals and universities argue that they should instead be included in a broader ACA exception that covers churches, synagogues, and worship-based employers. Following the death of Justice Antonin Scalia in February 2016, however, all eight justices agreed that they would not decide this case involving the ACA contraceptive mandate and religious rights. Instead, the justices directed lower courts and the litigants to find a compromise solution. The High Court thus remanded the seven cases to their respective U.S. Courts of Appeal for the Third, Fifth, Tenth, and DC Circuits.

In re Simon Shiao Tam, 808 F.3d 1321 (Federal Circuit, 2015) 

This is actually a “sneak preview” of a case with a trajectory toward the Supreme Court’s 2016–2017 term. In December 2015, the U.S. Court of Appeals for the Federal Circuit relied on the First Amendment to bar the government from enforcing the Lanham Act’s ban on trademarks that “disparage persons, living or dead…or bring them into contempt or disrepute.” It sounds pretty abstract, unless you’re a Washington Redskins fan. In June 2014, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office ruled that the Redskins’ federal trademark registration should be cancelled on the grounds that it is “disparaging to Native Americans.”

We might have thought that this would be the high profile case headed for the U.S. Supreme Court, but a different test case has reached the end zone ahead of the Redskins. This case begins with Chinese-American Simon Shiao Tam, who wanted to register the trademark for his Asian-American dance-rock band “The Slants.” He explained that he had named his band The Slants “to reclaim and take ownership of Asian stereotypes.” The band draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes, and its albums include The Yellow Album and Slanted Eyes, Slanted Hearts(808 F. 3d 1321 at 1331).In its decision, the Federal Circuit commented: “With their lyrics, performances, and band name, Mr. Tam and his band weigh in on cultural and political discussions about race and society that are within the heartland of speech protected by the First Amendment.” (808 F. 3d 1321 at 1331)

The Federal Circuit Court sided with Tam, ruling that the U.S. Patent and Trademark Office may never bar anyone from registering a trademark on the grounds that it is “disparaging.” In other words, the Lanham Act provision about disparagement is completely struck down, no matter what the facts are in a particular case. The nine-judge majority inTam explicitly overruled the precedent in In re McGinley (1981), which had guided courts in “disparagement” cases. The majority also rejected the government’s argument that granting or not granting a trademark is essentially a form of “government speech.” Because the Department of Justice usually feels obliged to defend the constitutionality of federal laws, it will probably appeal the Federal Circuit’s decision striking down the Lanham Act’s “disparagement” provision, meaning that the case is headed for the U.S. Supreme Court.

I have no idea how many of the Supreme Court justices are Washington Redskins fans, or whether they like the name or find it offensive. But I’m willing to bet that they would just love to grant certiorari and let Simon Shiao Tam have his day in court.