August 25, 2019

Colorado Court of Appeals: High School Student’s Tweets Did Not Constitute True Threats or Fighting Words

The Colorado Court of Appeals issued its opinion in People in Interest of R.D. on Thursday, December 30, 2016.

Social Media—Juvenile Delinquent—Harassment—First Amendment—Right to Free Speech—True Threats—Fighting Words.

R.D., a high school student, argued with a student from a different high school through tweets on the social networking website Twitter. The People filed a petition in delinquency against R.D., and the district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.

On appeal, R.D. argued that C.R.S. § 18-9-111(1)(e) as applied to his conduct violated his First Amendment right to free speech. The People responded that R.D.’s statements were not protected by the First Amendment because they were true threats and fighting words. While the language of R.D.’s tweets was violent and explicit, R.D.’s tweets did not constitute true threats because they were not “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Fighting words can occur only when the speaker is in close physical proximity to the recipient. R.D. was not in close physical proximity to A.C. at the time of the incident. Because R.D.’s statements were neither true threats nor fighting words, the statute as applied violated his First Amendment rights.

The judgment was reversed and the case was remanded with directions to vacate the adjudication of juvenile delinquency and dismiss the proceeding.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

Tenth Circuit: Citizens United Case Requires Court to Affirm District Court’s Issuance of Preliminary Injunction Enjoining Enforcement of New Mexico Campaign Finance Law

The Tenth Circuit Court of Appeals published its opinion in Republican Party of New Mexico v. King on Wednesday, December 18, 2013.

This case required the Tenth Circuit to consider state campaign finance regulations in light of the Supreme Court’s ruling in Citizens United v. FEC, 558 U.S. 310 (2010). Citizens United held that federal election law violated the First Amendment by restricting independent political spending because the speaker was a corporation—the holding allowed corporate entities to make unlimited independent expenditures supporting or opposing issues or candidates as long as the expenditures were not coordinated with a candidate for federal office.

Before the Court’s decision in Citizens United, New Mexico had introduced a new state campaign finance law that imposed a host of contribution and other limitations on political parties, political action committees, and donors to such entities. In particular, the state limited the amount an individual may contribute to a political committee. Potential donors, political parties, and political committees mounted an as-applied challenge to the law in federal district court, contending several of its provisions violated the First Amendment.

The district court agreed and issued a preliminary injunction, enjoining the enforcement of two provisions: (1) limits on contributions to political committees for use in federal campaigns, and (2) limits on contributions to political committees that are to be used for independent expenditures, i.e., expenditures not authorized by or coordinated with a candidate or candidate committee. New Mexico appealed the latter ruling, contending that the limit on contributions furthers the state’s compelling interest in preventing corruption or the appearance of corruption in campaign spending.

Citizens United resolved a longstanding debate over whether other governmental interests could support restrictions on campaign financing. After Citizens United, there was no valid governmental interest sufficient to justify imposing limits on fundraising by independent expenditure organizations. The Supreme Court firmly rejected the contention that independent expenditures give rise to corruption or the appearance of corruption: “The appearance of influence or access . . . will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech . . . not coordinated with a candidate.” Citizens United, 558 U.S. at 360. In sum, Citizens United resolved the right of a non-profit corporation to make independent expenditures without limits as to their source and amount. In its wake, the circuit courts have also uniformly struck down limitations on contributions to entities engaged in independent expenditures.

The Tenth Circuit held that the district court was correct that the challenged provision cannot be reconciled with Citizens United. Because there is no corruption interest in limiting independent expenditures, there can also be no interest in limiting contributions to non-party entities that make independent expenditures. Consequently, as the district court found, plaintiffs are likely to succeed on the merits of its First Amendment challenges to New Mexico’s law.

As a result, did not err in entering a preliminary injunction.

AFFIRMED.

Tenth Circuit: Amendments to Utah’s Sexual Solicitation Statute Constitutional

The Tenth Circuit Court of Appeals published its opinion in Bushco v. Shurtleff on Monday, September 9, 2013.

Plaintiffs—Bushco Corp; Companions, L.L.C.; and TT II, Inc.  (“Appellants”)—are escort services licensed as sexually oriented businesses. Defendant is the Attorney General of the State of Utah (“Attorney General”). Plaintiffs brought a lawsuit in federal district court for the district of Utah, seeking declaratory and injunctive relief. They claimed that certain amendments (“Amendments”) to Utah Code Ann. § 76-10-1313 (“Sexual Solicitation Statute” or “Statute”)—specifically, § 1313(1)(c) and § 1313(2)—were overly broad, were unconstitutionally vague, and infringed on the right of free speech under the First Amendment of the U.S. Constitution. The parties filed cross-motions for summary judgment.

The district court held that § 1313(2) was unconstitutionally vague, and therefore ordered that that provision be severed and stricken from the statute. But the court upheld § 1313(1)(c). Appellants appealed the court’s ruling that § 1313(1)(c) was constitutional, and the Attorney General filed a cross-appeal, challenging the court’s ruling that § 1313(2) was unconstitutionally vague.

On appeal before the court were three main issues: (1) whether issue preclusion applied to the question of the Statute’s constitutionality because a district court previously held unconstitutional similar language of a predecessor statute, Utah Code Ann. § 76-10-1301(1) (“Sexual Activity Statute”); (2) whether the Amendments to the Sexual Solicitation Statute were overbroad or placed too great a burden on expression protected by the First Amendment; and (3) whether the Amendments to the Sexual Solicitation Statute were unconstitutionally vague.

The Tenth Circuit reached the following conclusions: (1) Issue preclusion did not apply, because the Predecessor Sexual Activity Statute and the Sexual Solicitation Statute are different statutes, with different purposes, and the constitutionality of the Sexual Solicitation Statute at issue in this case was not previously litigated. (2) The Amendments are not unconstitutionally overbroad because they do not encompass a substantial amount of constitutionally protected conduct. Moreover, the Amendments do not place too great a burden on Appellants’ speech rights because they pass the O’Brien test for incidental restrictions on First Amendment rights. United States v. O’Brien, 391 U.S. 367, 376 (1968). (3) Section 1313(1)(c) is not unconstitutionally vague, because it provides fair notice of the prohibited conduct and sufficient guidance to law enforcement. Similarly, § 1313(2) is not unconstitutionally vague, because it does not authorize or encourage discriminatory enforcement of the Sexual Solicitation Statute.

Accordingly, the Tenth Circuit AFFIRMED the district court’s ruling as to the constitutionality of § 1313(1)(c), but REVERSED the district court’s ruling that § 1313(2) is unconstitutionally vague.

Tenth Circuit: High School Students’ First and Fourteenth Amendment Rights Not Violated When School Stopped Their Distribution of Fetus Dolls

The Tenth Circuit published its opinion in Taylor v. Roswell Independent School District on Monday, April 8, 2013.

The plaintiffs are high school students from Roswell, New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”). On January 29, 2010, the Relentless students planned to distribute 2,500 small rubber dolls at two high schools, Roswell High School and Goddard High School. Each two-inch doll was designed to be a realistic representation of a human fetus. The Relentless students did not seek permission before distributing these items.

At Goddard High, Relentless students began distributing the dolls to every student entering the school that morning. When the Assistant Principal discovered that the students did not have prior approval, he stopped the distribution and confiscated the dolls. Dolls were also confiscated at Roswell High. Both schools experienced doll-related disruptions that day.

When these distributions began, Roswell District had two policies concerning distribution of non-school related materials on campus. Policy 7110 required advance permission from the District before distribution of promotional items or advertisements on campus. A separate unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature. This policy was later formalized as written Policy 5195.

Plaintiffs sued Roswell Independent School District and Superintendent Michael Gottlieb in his official capacity (collectively “the District”) seeking declaratory and injunctive relief and alleged three counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies were unconstitutional prior restraints and were unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the fetus dolls violated their free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-called hybrid claim theory. Count III alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. A magistrate judge granted summary judgment for the District on all claims, and Plaintiffs appealed on Counts I and III.

Count I: Two First Amendment Speech Claims

The Court noted that two important questions were not at issue. First, this case did not turn on whether the content of Plaintiffs’ message warranted First Amendment protection—there was no question that it did. The record showed Plaintiffs meant to convey a religious and political message when they distributed the dolls, and the Constitution requires they be permitted to express these views at school in some form. Second, the parties did not contest that the District was allowed to confiscate already distributed rubber dolls from any students who threw them, used them to harm school property, or displayed them as props for lewd or obscene expressions of their own.

What was contested was whether the District violated Plaintiffs’ free speech rights when it stopped their on-campus distribution of the dolls. The answer depends on whether school officials reasonably forecast that this particular form of expression would create a substantial disruption to school discipline.

First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies are unconstitutional prior restraints and were unconstitutionally vague.

Plaintiffs’ facial challenge to the school policy failed. Generally, a “prior restraint” restricts speech in advance on the basis of content and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The policy was not unconstitutional under the prior restraint doctrine because it constrained official discretion and contained adequate procedural safeguards—and because it applied to the school environment where greater deference is given to school officials. It was not void for vagueness because students of ordinary intelligence could understand its meaning and it neither authorized nor encouraged arbitrary or discriminatory enforcement.

Second, Plaintiffs challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the dolls violated their free speech rights.

Under the standards developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), The Tenth Circuit held that Plaintiffs’ free speech challenges failed because school officials reasonably forecast that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ distribution conveyed a political and religious message and would likely merit First Amendment protection outside the school context. Inside the school walls, however, the Court had to consider whether the expression was, or was reasonably forecast to be, disruptive. The record was replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property, and risks to student safety. In short, there was ample undisputed evidence that the District had permissible reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not violated.

Count III: Discrimination Claim

Plaintiffs alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs argued they were treated differently because non-Relentless students were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the same day that they were prevented from distributing the rubber fetuses.

The Equal Protection Clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To prevail on an equal protection claim, a plaintiff must show that she was treated differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998).

Applying the rational basis test, the Tenth Circuit held that Plaintiffs’ free exercise and equal protection claims failed because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students.

The Tenth Circuit noted that the public school setting was important to its analysis.

AFFIRMED.