Wake Forest Law Review

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By Laura Jordan

A few years ago, the federal government dissected a certain four-letter word.[1] It was prodded to see if it would “shock . . . the sense of truth, decency, or propriety” of the American public.[2] It was weighed to determine if it would “giv[e] offense to the conscience or moral feelings.”[3] And it was placed under the microscope to judge its “disgraceful[ness]” and “offensive[ness].”[4] That four-letter word survived the scrutiny and is alive and kicking today.[5] In fact, it was the scrutiny measures themselves that ultimately received the knife, cut out as unconstitutional by the Supreme Court over the summer.[6]

The four-letter word under debate was not one of the typical variety tossed around in casual settings, but it was close enough.[7] Plaintiff Erik Brunetti was trying to trademark the name “FUCT” as the title of his clothing brand.[8] He claimed that the four letters were to be pronounced individually, as in “F-U-C-T.”[9] However, as Justice Kagan pointed out in the majority opinion, “[Y]ou might read it differently and, if so, you would hardly be alone.”[10] The U.S. Patent and Trademark Office (PTO) certainly did, and they rejected Brunetti’s application.[11]

The PTO’s statutory authority to govern the trademark registration process is found in the Lanham Act, which is codified in 15 U.S.C. §§ 1051 et seq.[12] Under § 1051, the PTO is allowed to subject the proposed trademark to scrutiny under the “factors set forth in subsections (a) through (e)” within § 1052.[13] In particular, § 1052(a) allowed the PTO to scrutinize whether the proposed trademark “comprise[d] immoral . . . or scandalous matter.”[14] If so, the trademark could be rejected.[15] The PTO decided that FUCT fit squarely within the proscribed category, deploring it as “highly offensive,” “vulgar,” and sexually reprehensible.[16] Brunetti pushed back against the rejection and won in the Court of Appeals for the Federal Circuit. The circuit court found that the PTO’s ban against “immoral, deceptive, or scandalous matter” was not in line with the First Amendment.[17]

The Supreme Court then took the statutory phrase under consideration, turning to its 2017 decision in Matal v. Tam[18] for guidance.[19] In Matal, the Court examined whether the PTO could refuse registration to trademarks that “‘disparage’ any ‘person[], living or dead’” within § 1052(a).[20] Simon Tam, of the band “The Slants,” had fought a lengthy battle to trademark the band’s name in order “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity.”[21] However, the PTO rejected the trademark, reasoning that “the fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the reference group would find the term objectionable.”[22] Ultimately, the Court decided that “if a trademark registration bar is viewpoint-based, it is unconstitutional” and that the PTO’s “disparagement bar was viewpoint-based.”[23]

With that holding in mind, the Court reasoned that “if the ‘immoral or scandalous’ bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine.”[24] Looking to dictionary definitions of “immoral” and finding results such as “inconsistent with rectitude, purity, or good morals,” the majority found that this statutory language is entirely viewpoint-based.[25] It upholds “conventional moral standards” while rejecting as impure other ideas that may not be as mainstream.[26] The Court lightheartedly pointed out that a mark such as “ALWAYS BE CRUEL” would not survive this scrutiny.[27] In the past, the PTO has taken the traditional side of morally-contested arguments, rejecting drug-positive trademarks such as “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “BONG HITS 4 JESUS” while registering “SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE.”[28] Thus, the immoral-or-scandalous bar, as written, allowed the government to approve some viewpoints over others.[29]

In arguing that the immoral-or-scandalous bar is constitutionally sound, the Government attempted to narrow the phrase to only “marks that are ‘vulgar’—meaning ‘lewd,’ ‘sexually explicit or profane.’”[30] If it were so narrow, then it would be constitutionally sound.[31] But the majority rejected this reasoning and found that the phrase encompasses much more:

It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.[32]

In striking down the statutory phrase, the majority therefore paved the way for the “FUCT” trademark.[33]

So, with this decision, can Americans now trademark whatever the FUCT they want to? Justice Sotomayor seemed to worry about that perhaps unintended consequence.[34] In her concurrence in part and dissent in part, she wrote,

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U.S.C. § 1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.[35]

However, Justice Alito stood up in his concurrence for the sanctity of free speech, arguing that “[a]t a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”[36]

Whichever side you are on, now might be the best time to go get that trademark registered.


[1] See Iancu v. Brunetti, 139 S. Ct. 2294, 2297 (2019).

[2] Id. at 2298.

[3] Id.

[4] Id.

[5] Id. at 2302.

[6] Id.

[7] Id. at 2297.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] 15 U.S.C. § 1051(d)(1) (2012).

[14] § 1052(a).

[15] § 1051(d)(1).

[16] Brunetti, 139 S. Ct. at 2298.

[17] Id.

[18] See generally 137 S. Ct. 1744 (2017).

[19] Brunetti, 139 S. Ct. at 2298.

[20] Id.

[21] Matal, 137 S. Ct. at 1754.

[22] Id.

[23] Brunetti, 139 S. Ct. at 2299.

[24] Id.

[25] Id.

[26] Id. at 2300.

[27] Id.

[28] Id.

[29] Id. at 2301.

[30] Id.

[31] Id.

[32] Id. at 2301–02.

[33] Id.

[34] Id. at 2308 (Sotomayor, J., concurring in part and dissenting in part).

[35] Id.

[36] Id. at 2303–04 (Alito, J., concurring).

By Greg Berman

Controversy erupted last week after a George Washington University professor, Dave Karpf, tweeted a joke at New York Times columnist Bret Stephens’s expense.  Quoting an 8-word post about a bedbug infestation in the Times’ newsroom, Karpf joked that “[t]he bedbugs are a metaphor.  The bedbugs are Bret Stephens.”[1]  Although this tweet did not initially gain much traction, it later went viral when Stephens personally emailed Karpf, as well as the George Washington University provost, demanding an apology for the insult.[2]  After several more tweets and an off-scheduled column post by Stephens with visible references to the controversy, both sides of the feud seem to be slowing down.[3]  Although this back and forth is just one isolated incident between two individuals, it highlights a growing trend in our discourse.  With the growing usage of social media in our society, these sorts of ideological clashes have seemingly become more prevalent than ever.[4]  And even though these virtual arguments tend to be more of an annoyance than a liability, reputation-damaging attacks (even those made on the internet) still can run the risk of triggering a costly libel lawsuit.[5] 

The tort of libel is defined by Black’s Law Dictionary as “[a] defamatory statement expressed in a fixed medium, esp[ecially] writing but also a picture, sign, or electronic broadcast.”[6]  The enforcement of libel laws in the United States dates predates the ratification of the Constitution, most notably with the trial of John Peter Zenger, whose 1735 jury acquittal established the idea that someone cannot be charged with libel if the remark is true.[7]  Even today, the accuracy of the allegedly libelous statements continues to be one of key factors for courts to consider in libel cases, with each state setting their own standards for liability.[8]  Another key consideration for courts comes from New York Times v. Sullivan, where the Supreme Court differentiated defamation claims involving public figures and private individuals, holding that any libel suit against a public figure requires the inaccurate statement to be made with “actual malice.”[9]  Actual malice has been defined by the Court as “knowledge that (the statement) was false or with reckless disregard of whether it was false or not.”[10]  Additional protections against libel claims were enacted nine years later, when the Supreme Court limited libel laws to apply only to intentionally false statements of fact, even if a trial court is presented with baseless opinions that are similarly incorrect.[11]

Our ever-increasing move toward a digitalized world raises the question of how these libel laws can be applied to internet publications.  To start, no claim for libel can be made against any social media site, such as Facebook or Twitter, for content posted by a user of that social media site.[12]  This is primarily due to the expansive legal protections given to these “interactive computer services” by Section 230 of the Communications Decency Act of 1996.[13]  That being said, individuals may still be held liable for content that they post on the internet, with each state continuing to apply its own standards for libelous conduct even as information crosses state lines.[14]  When it comes to the question of jurisdiction, the Supreme Court clarified in Keeton v. Hustler Magazine, Inc. that a state can claim jurisdiction over a non-resident when injurious information is intentionally disseminated to its citizens.[15]  Specifically, the Court cited each state’s interest in protecting its citizens from intentional falsehoods as a key consideration in its decision.[16] While online information is disseminated in a different manner than the magazines from Keeton, courts have begun allow jurisdiction for internet libel cases when the online post directly targets one or more residents of the state.[17]

When applying libel laws to online statements, courts have used similar substantive principles to those used for print publications.  In 2009, former musician Courtney Love was sued by her former attorney after tweeting allegedly libelous remarks.[18]  As this was the first reported case to go to a jury decision for remarks made over Twitter, the trial court was left with a case of first impression.[19]  In a landmark decision, the court opted to apply traditional libel laws.  A jury found that Love did not know that the statements were false at the time they were made; she therefore lacked the actual malice required to be considered libel.[20]  

There have also been other cases involving libelous comments made over Twitter.[21]  For example, one such case took place after a tenant complained on her personal Twitter account about her “moldy apartment.”[22]  After seeing the post, the landlord sued the tenant under Illinois libel laws; the case was later dismissed with prejudice because the tweet was too vague to meet the requisite legal standards for libel.[23]  Another lawsuit took place after a mid-game conversation between an NBA coach and a referee was overheard and tweeted out by an AP reporter.[24]  The referee insisted that the reported conversation never took place, and the subsequent lawsuit ultimately resulted in a $20,000 settlement.[25]  Each of these cases present factually unique scenarios, but all together indicate a growing trend: even as the medium for public discourse has been rapidly shifting towards the digital sphere, traditional libel laws still continue to apply.

In addition to substantive treatment, there also remain unresolved legal questions stemming from courts’ application of the single publication rule.  The single publication rule provides that “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication” and therefore “only one action for damages can be maintained.”[26]  The justification behind this rule is simple: by aggregating all damages allegedly caused by a publication to a single action, a party would not be perpetually bombarded with litigation long after their active role in publication has ended.[27]  This rule has already been adopted in “the great majority of states” and was implemented within the 4th Circuit in Morrissey v. William Morrow & Co.[28]  However, some academics have proposed that the single publication rule should not always be applied to social media posts, citing the possibility that a publisher could personally solicit shares or retweets and thereby maintain an active role in republishing libelous information.[29]  The issue of continual dissemination by means of retweeting seems primed to be raised in later litigation, but thus far has not been brought before any court.[30]  Still, many circuits have already begun the process of implementing the single publication rule to online posts in general (so far these cases have been litigated over personal blogs rather than Facebook or Twitter posts), so it will be interesting to see how courts handle the issue if eventually raised by litigants down the road.[31]

As the social media presence in our society grows stronger each day, only time will tell if courts will craft separate libel principles for online publications.  There are arguments to be made on both sides, especially now that online mediums are increasingly taking over many of the informational functions previously held by their print counterparts.[32]  For now, at least, courts are continuing to use the same traditional libel laws that have been evolving and changing since John Peter Zenger’s 1735 acquittal. [33]  And while the jury is still out on whether Dave Karpf actually thinks Bret Stephens is a metaphorical bedbug, he can likely rest easy knowing that current libel laws will protect his joke from any future legal trouble.


1. Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 5:07 PM), https://twitter.com/davekarpf/status/1166094950024515584.

[2] See Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 9:22 PM), https://twitter.com/davekarpf/status/1166159027589570566; Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 10:13 PM) https://twitter.com/davekarpf/status/1166171837082079232; see also Tim Efrink & Morgan Krakow, A Professor Called Bret Stephens a ‘Bedbug.’ The New York Times Columnist Complained to the Professor’s Boss, Wash. Post (Aug. 27, 2019), https://www.washingtonpost.com/nation/2019/08/27/bret-stephens-bedbug-david-karpf-twitter/ (summarizing the context of Korpf’s tweet and the resulting controversy).

[3] See Dave Korpf (@davekorpf), Twitter (Aug. 30, 2019, 7:58 PM), https://twitter.com/davekarpf/status/1167587392292892672; Bret Stephens, Opinion, World War II and the Ingredients of Slaughter, N.Y. Times (Aug. 30, 2019), https://www.nytimes.com/2019/08/30/opinion/world-war-ii-anniversary.html.

[4] Jasmine Garsd, In An Increasingly Polarized America, Is It Possible To Be Civil On Social Media?, NPR (Mar. 31, 2019) https://www.npr.org/2019/03/31/708039892/in-an-increasingly-polarized-america-is-it-possible-to-be-civil-on-social-media.

[5] See id.; Adeline A. Allen, Twibel Retweeted: Twitter Libel and the Single Publication Rule,15 J. High Tech. L. 63, 81 n.99 (2014).

[6]  Libel, Black’s Law Dictionary (11th ed. 2019).

[7] Michael Kent Curtis, J. Wilson Parker, William G. Ross, Davison M. Douglas & Paul Finkelman, Constitutional Law in Context 1038 (4th ed. 2018).

[8] James L. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 384 (1985).

[9] 376 U.S. 254, 279–80 (1964); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (defining a public figure as either “an individual achiev[ing] such pervasive fame or notoriety” or an individual who “voluntarily injects himself or is drawn into a particular public controversy”).

[10] Sullivan, 376 U.S. at 280.

[11] See Gertz, 418 U.S. at 339 (“[u]nder the First Amendment, there is no such thing as a false idea.”).

[12] See Allen, supra note 5, at 82.  Of course, Facebook and Twitter are not immunized against suits for content that they post on their own platforms.  Cf. Force v. Facebook, Inc., ___ F.3d ___, No. 18-397, 2019 WL 3432818, slip op. at 41 (2d Cir. July 31, 2019), http://www.ca2.uscourts.gov/decisions/isysquery/a9011811-1969-4f97-bef7-7eb025d7d66c/1/doc/18-397_complete_opn.pdf (“If Facebook was a creator or developer, even ‘in part,’ of the terrorism-related content upon which plaintiffs’ claims rely, then Facebook is an ‘information content provider’ of that content and is not protected by Section 230(c)(1) immunity.”).

[13] 47 U.S.C. §230(c)(1) (2017) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).  “Interactive computer service” is defined by the act as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”). Id. at §230(f)(2); see also Allen, supra note 5, at 82 n.100 (describing additional protections provided by the Communications Decency Act, including how Twitter falls under its definition of “interactive computer service”).

[14] See Allen, supra note 5, at 84; Pielemeier, supra note 8, at 384.

[15] 465 U.S. 770, 777 (1984); see also Calder v. Jones, 465 U.S. 783, 791 (1984) (holding that personal jurisdiction is proper over defendants who purposefully directed libelous information at the plaintiff’s home state with the intent of causing harm).

[16] Keeton, 465 U.S. at 777.

[17] See, e.g.,Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997); Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002); Tamburo v. Dworkin, 601 F.3d 693, 707 (7th Cir. 2010) (each applying traditional libel tests for personal jurisdiction to online publications, requiring the publication to be intentionally targeted towards citizens of the state). 

[18] Gordon v. Love, No. B256367, 2016 WL 374950, at *2 (Cal. Ct. App. Feb. 1, 2016). The exact language of the tweet in question was “I was fucking devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote.”  Id.  The tweet was deleted five to seven minutes after it was posted.  Id. at *3.  This was Love’s second time being sued for defamation over comments made on her Twitter account, although the first lawsuit resulted in a $430,000 settlement before trial. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter Case, Reuters (Mar. 3, 2011), https://www.reuters.com/article/us-courtneylove/courtney-love-to-pay-430000-in-twitter-case-idUSTRE7230F820110304.

[19] See Allen, supra note 5, at 81 n.99.

[20] Love, 2016 WL 374950, at *3.  The reason actual malice was required in the case is because Love’s attorney had gained public figure status, which was not disputed at trial. Id.

[21] See Joe Trevino, From Tweets to Twibel*: Why the Current Defamation Law Does Not Provide for Jay Cutler’s Feelings, 19 Sports Law J. 49, 61–63 (2012) (describing a series of libel lawsuits stemming from social media posts).

[22] Id. at 61.

[23] Andrew L. Wang, Twitter Apartment Mold Libel Suit Dismissed, Chi. Trib. (Jan. 22, 2010), https://www.chicagotribune.com/news/ct-xpm-2010-01-22-1001210830-story.html.

[24] Trevino, supra note 21, at 63. 

[25] Lauren Dugan, The AP Settles Over NBA Twitter Lawsuit, Pays $20,000 Fine, Adweek (Dec. 8, 2011), https://www.adweek.com/digital/the-ap-settles-over-nba-twitter-lawsuit-pays-20000-fine/.

[26] Restatement (Second) of Torts § 577A(3–4) (Am. Law Inst. 1977).

[27] Id. at § 577A cmt. b.

[28] 739 F.2d 962, 967 (4th Cir. 1984) (quoting Keeton, 465 U.S. at 777 n.8).

[29] Allen, supra note 5, at 87–88.

[30] See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. Rev. 895, 915 (2001) (calling for courts to define “republication” in the context of internet publications).

[31] See, e.g., Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130–31 (9th Cir. 2006); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144 (5th Cir. 2007).  But see Swafford v. Memphis Individual Prac. Ass’n, 1998 Tenn. App. LEXIS 361, at *38 (Tenn. App. 1998).

[32] See Allen, supra note 5, at 91 n.157.

[33] See Trevino, supra note 19, at 69.

By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.


[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

By Caroline Hamilton and Alex Prunka

During the 2014­–15 school year, Caleigh Wood was an eleventh grade student at La Plata High School in Charles County, Maryland.[1]  Wood was required to take a world history course as a part of the school’s curriculum, featuring a small, five-day unit entitled “The Muslim World.”[2]  This unit was designed to “explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.”[3]  Wood took issue with two aspects of the Muslim World unit: (1) the PowerPoint slide which stated “most Muslim’s [sic] faith is stronger than the average Christian [sic]” and (2) a worksheet summarizing the lesson that required her to complete certain information about the Islamic faith.[4]

Wood sued the defendants Evelyn Arnold, Shannon Davis, the Board of Education of Charles County, and the Charles County Public Schools.  In Wood v. Arnold,[5] she asserted two claims: (1) the defendants violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion;” and (2) that defendants violated the Free Speech Clause of the First Amendment by requiring her to complete the shahada assignment thereby depriving her “of the right to be free from government compelled speech.”[6]  The United States District Court for the District of Maryland granted summary judgment to the defendants on all claims, and Wood appealed.

Plaintiff’s Arguments

Wood’s first claim was based on the Establishment Clause. She argued that the defendants endorsed a view of Islam over Christianity, which violates the Establishment Clause[7] based on the comparative faith statement that read “Most Muslim’s faith is stronger than the average Christian.”[8]  Wood also believed that the assignment which required to fill in the blanks regarding the lesson plan impermissibly advanced Islam and compelled Wood to deny the existence of her God.[9]  Wood argued that the religious endorsement could not be overcome by the secular purposes alleged by the defendants.[10]

Regarding Wood’s Free Speech Clause challenge, she contended that the defendants violated her right to free speech by requiring her to fill in the sentence “There is no god but Allah and Muhammad is the messenger of Allah”[11] on the after lesson worksheet.  From her position, Wood believed that this worksheet forced her to confess, by written word and deed, her faith in Allah.[12]  Having been raised in a strong Christian household, Wood took offense to what she and her parents perceived as forced proclamation of Islamic beliefs.[13]

Defendant’s Arguments

In response to Wood’s Establishment Clause claim, defendants argued the unit satisfied the first prong of the Lemon test because the purpose of the Muslim unit was primarily secular and that the single statement made on the power point rose to a level of promoting Islam.[14]  In regards to the second prong of the Lemon test, the defendants emphasized the importance of analyzing whether the school was acting to promote a particular religion from an objective standpoint and that the District Court was correct in not taking into account specific, subjective statements made by certain school officials.[15]  Finally, the defendants patently rejected the theory that the comparative faith statement and the fill in the blank worksheet could lead a reasonable juror to find excessive entanglement between the school and religion.[16]  It simply does not rise to the level of requiring Wood to profess Islam or denounce Christianity, nor does it in any way bear resemblance to a statement made by an evangelical.

In response to Wood’s Free Speech Clause challenge, the defendants argue that the classroom is not a public forum worthy of the full battery of First Amendment protections.[17]  Additionally, defendants argue that Wood was never asked to profess her belief in Islam but rather, was asked to showcase her understanding of the Islamic religion in the context of a world history class.  Thus, the forum of the classroom in conjunction with the type of “compelled” speech indicate that the fill in the blank worksheet does not violated her First Amendment rights.[18]

The Court’s Opinion

The Court affirmed the District Court’s granting of summary judgement in favor of the defendants on both counts.  The court acknowledged that the proper analysis for an Establishment Clause issue is the Lemon test,[19] which asks (1) whether the challenged material has some secular purpose; (2) whether the principal effect of government action is to suggest government preference for a particular religious view or for religion in general; and (3) whether the government action created an excessive entanglement between government and religion.[20]  However, the court first had to decide the relevant scope of inquiry—whether the challenged materials should be considered in isolation or whether they should be considered within the broader context of the world history class.  Following circuit court precedent, the court held that it was proper to consider the challenged content in the context of the world history class.[21]  Here, the court found that the challenged religious content did not offend any of the three Lemon test prongs.

The first prong imposes a “fairly low hurdle,” merely requiring the government to show that it had a plausibly secular purpose.[22]  So long as the proffered secular purpose is genuine and not a sham, the purpose will satisfy the first prong of the Lemon test.  Here, the court determined that the purpose of the two pieces of challenged content did have a primarily secular purpose.  The court noted that the Supreme Court has recognized the value in studying religion on a comparative basis.[23]  Neither the comparative faith statement being challenged or the shahada worksheet indicate a religious purpose; rather, the school had a predominantly secular purpose in teaching world history, and the subsequent shahada worksheet was in line with the academic work to be expected after a lesson plan.[24]  Thus, the court was quickly satisfied that the school was acting with a predominantly secular purpose.

Turning to the second prong of the Lemon test, the court asked whether a reasonable, informed observer would conclude that by its actions, the government has endorsed a particular religion.[25]  In analyzing this prong, courts assume that the reasonable observer is aware of the context surrounding the government action.  The court found that neither of the challenged statements indicated that the school endorsed Islam or that the school was forcing its students to endorse and participate in Islamic practices.  It distinguished the challenged content from a situation in which a school forces students to pray, which would offend the Lemon test.[26]  In fact, the challenged content was integrated into the secular curriculum and only constituted a minor part of the Muslim unit, which was only a minor part of the world history class.  Thus, the court concluded that “common sense” indicates that the school was not endorsing any religious beliefs through either of the challenged content.[27]

In dealing with the third prong, the court examined whether the government action led to an excessive entanglement between government and religion.  The court determined that they “need not dwell long on the entanglement prong” because the comparative faith statement and shahada assignment neither advanced nor inhibited religion.[28]  The secular nature of the content, in conjunction with the minor role it played in the context of the world history class, led the court to quickly find there was no entanglement issues caused by the comparative faith statement or the shahada assignment. 

The court then turned to Wood’s Free Speech Clause challenge.  Although the court acknowledged that compelled speech usually gets rigorous scrutiny,[29] this presumption needs to be balanced with the reality that students’ rights in public schools are not “automatically coextensive with the rights of adults in other settings.”[30]  The court here agreed with the Third Circuit’s approach, which stated that, in the educational context, students sometimes are forced to speak when they would rather not and that does not offend the First Amendment.[31]  From this basis, the court went on to find that the shahada assignment did not require Wood to profess or accept the tenants of Islam or take part in any devotion practice related to Islam.  Therefore, Wood’s right against compelled speech was not violated.

Conclusion

The Court of Appeals for the Fourth Circuit, in a relatively short opinion, affirmed the granting of summary judgment in favor of the defendants.  The court did not find merit on either of Wood’s assertions that the comparative faith statement or the shahada worksheet violated the Establishment Clause or the Free Speech Clause.  The content in question was a minor part of a small unit about the Muslim world in the context of a world history class.  The purpose for this content is clearly secular in nature and would not have led a reasonable juror to find that Wood’s rights were violated.


[1] Wood v. Arnold, 915 F.3d 308, 312 (4th Cir. 2019).

[2] Id.

[3] Id.

[4] Id. at 312–13.

[5] 915 F.3d 308 (4th Cir. 2019).

[6] Id. at 313.

[7] The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I, cl. 1.

[8] Wood, 919 F.3d at 313.

[9] Id.

[10] Id.

[11] Id. at 318.

[12] Id. at 319.

[13] Plaintiff’s Amended Complaint ¶¶ 34–40, Wood v. Arnold, (No. 8:16-cv-00239-GJH), 2016 WL 6136525 (D. Md. Oct. 11, 2016).

[14] Corrected Brief for Defendants-Appellants at 13, Wood v. Arnold, 915 F.3d 308 (No. 18-1430) (4th Cir. 2019).

[15] Id. at 19–21.

[16] Id. at 22–24.

[17] Id. at 25–26.

[18] See id. at 31.

[19] Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019).

[20] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[21] Wood, 915 F.3d at 314–15 (citingLambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 271 (4th Cir. 2005)). 

[22] Id. at 315 (citing Glassman v. Arlington Cty., 628 F. 3d 140, 146 (4th Cir. 2010)).  

[23] Id. at 315 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255 (1963)).

[24] Id. at 317.

[25] Id. at 316 (citing Cty. of Alleghany v. ACLU, 492 U.S. 573, 592–94 (1989)).

[26] Id. at 317 (citingLee v. Weisman, 505 U.S. 577, 598–99 (1992)).

[27] Id. at 317–18.

[28] Id. at 318.

[29] Id. at 319 (citingGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F. 3d 101, 107 (4th Cir. 2018)).

[30] Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[31] Id. (citing C.N. v. Ridgewood Bd. of Educ., 430 F. 3d 159, 187 (3d Cir. 2005)).

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By Hayley Degnan

Facts

In 2015, Ross Abbott (“Abbott”), a student from the University of South Carolina (“USC”) met with USC’s director of campus life to approve a “Free Speech Event” hosted by two student groups, intending to draw attention to free speech threats across college campuses.[1] After its approval, the event proceeded on November 23, 2015, during which time, Abbott and other students circulated handouts detailing incidents of censorship at USC and on other college campuses, and displayed posters, including a “large red swastika” and the word “wetback.”[2] Directly following the event, the University’s Office of Equal Opportunity Programs (“EOP Office”) received three written complaints, including accusations that students involved in hosting the event made sexist and racist remarks.[3] The next day, Carl Wells (“Wells”), USC’s Assistant Director of the EOP Office, sent Abbott a letter that (1) instructed him to contact the office to appear for a required meeting, (2) stated the University may move to investigate and impose sanctions, and (3) claimed to have a “Notice of Charge” attached, although this notice was later revealed to be a clerical error.[4] Two weeks later, Wells had the mandated meeting with Abbott to discuss the complaints; he explained that this meeting was standard practice under USC’s “Student Non-Discrimination and Non-Harassment Policy” following the receipt of student complaints, and he offered Abbott the opportunity to explain Abbott’s own understanding of what transpired at the event. On December 23, 2015, two weeks after their meeting, Wells informed Abbot that the University found no cause for further investigation or sanction.[5]

Procedural History

In February 2016, Abbott and the two student groups involved in hosting the “Free Speech Event” (“Plaintiffs”), filed suit against multiple USC officials, alleging violations of their First Amendment rights. Plaintiffs made two claims: (1) that the University’s investigation procedures in connection with the discrimination and harassment complaints impermissibly chilled their free expression under the First Amendment, and (2) the University’s harassment policy on its face violated the First Amendment because it was overly broad and exceedingly vague.[6] Both parties moved for summary judgment on the first claim, and the district court granted summary judgment to the members of the university (“Defendants”). The district court also found in favor of the Defendants on the second claim, without reaching the merits due to the Plaintiffs’ lack of standing.[7]

The first issue considered by the district court involved whether the Plaintiffs’ speech had been so restricted as to constitute a First Amendment injury when Defendants required Abbott to attend a meeting in conjunction with the University’s “Student Non-Discrimination and Non-Harassment Policy.”[8] The court held that the Plaintiffs’ had suffered such an injury in the form of a “chilling effect” on their speech because the Plaintiffs could have reasonably feared discipline and self-censored otherwise protected speech during the investigation process.[9] However, the court ultimately held that the temporary chill on plaintiffs’ First Amendment speech, while present, was constitutional given USC’s narrowly drawn investigation practices under the “Student Non-Discrimination and Non-Harassment Policy” to achieve its compelling end of upholding the rights of its students to be free from illegal discrimination and harassment.[10]

The second issue considered by the district court was whether Plaintiffs had standing to bring a facial challenge and seek injunctive relief against Defendants’ policy. The court held that plaintiffs lacked the standing necessary to seek an injunction because they could not point to a non-speculative claim of future injury.[11] The Fourth Circuit Court of Appeals addressed both issues on appeal, first determining whether the district court erred in granting Defendants’ summary judgment motion on the as-applied First Amendment challenge, considering both (1) whether a First Amendment harm befell the plaintiffs, and (2) whether the Defendants’ “Student Non-Discrimination and Non-Harassment Policy” and related investigation practices survived under strict scrutiny review. 

Plaintiffs’ Arguments

The Plaintiffs advanced two major arguments in support of their claim that the University’s “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights by requiring Abbott to participate in a meeting with Wells.[12] First, they asserted that the investigation practices of the University used in accordance with the policy “chilled” their ability to exercise protected speech. In support, they explained that the inquiry process, which the University undertook to abide by its own policy, caused them to “reasonably fear” disciplinary action if they chose to sponsor other events.[13] Thus, they decided to cancel an annual Marijuana Legalization Rally, avoided putting on any additional events, and generally shied away from engaging in student discourse, which was a major part of their operations on campus. Furthermore, plaintiffs suggested that the “Notice of Charge” referenced in the letter and the mandate of a meeting, which came from an authoritative figure at the University would reasonably make any college student of “ordinary firmness” self-censor his or her expression out of fear.[14] Additionally, the Plaintiffs relied on Fourth Circuit authority to relay this “ordinary firmness” standard for self-censorship impeding on First Amendment rights.[15] Plaintiffs also suggested that this chilling effect extended from the date Wells sent Abbott the letter to the date when the action was filed, which is when Plaintiffs contended they first felt comfortable reengaging in their full First Amendment rights.

In addition, Plaintiffs argued that the investigative practices used by the Defendants in conjunction with the “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights because the process was not the least restrictive means to meet the University’s goal of protecting student rights.[16] Plaintiffs did not dispute that the University has a compelling interest in ensuring students are free from illegal discrimination and harassment at school; yet, they contested the University’s means of carrying out that end via their investigation under the “Student Non-Discrimination and Non-Harassment Policy.”[17] They argued that the University’s inquiry process was neither “necessary nor narrowly drawn” because the University was able to handle the student complaints without involving the Plaintiffs. To further this argument, Plaintiffs stressed that Defendants should have “weeded out” any insubstantial or frivolous complaints before resorting to the inquiry process.[18] Additionally, Plaintiffs contended that even if the Defendants rightfully resorted to investigating following some sort of screening, the defendants commenced the incorrect form of inquiry; they should have spoken to the complaining students or witnesses of the accused discriminatory or harassing behavior first.[19] Then, following this independent investigation, the Defendants could have contacted Abbott and determined how to proceed.

Defendants’ Arguments

In general, Defendants argued that they did not violate the First Amendment as a matter of law and that qualified immunity protected them from damages liability for any claimed harm by the Plaintiffs.[20] To further this argument, Defendants pointed out that they did not choose to take any action against the Plaintiffs in relationship to the “Free Speech Event” or ask them to refrain from exercising their full First Amendment rights during the time between the event and the letter from Wells or the letter and the meeting with Wells to lead them to self-censor. Furthermore, the Defendants noted that even after the meeting between Wells and Abbot that occurred as a result of its “Student Non-Discrimination and Non-Harassment Policy, the University did not impose any sanctions or restrictions on the Plaintiffs that may have harmed their abilities to express their First Amendment rights in this context.[21] As a more direct response to the Plaintiffs’ arguments about experiencing a “chilling” effect as a result of the letter from Wells, the Defendants argued that the Plaintiffs failed to establish that they actually experienced any such “chilling” or harm. None of the Plaintiffs identified any specific events they wished to sponsor and refrained from sponsoring during the time in question.[22]

In response to the second argument, the Defendants alleged that their inquiry procedure under the “Student Non-Discrimination and Non-Harassment Policy” survived at strict scrutiny. First, the Defendants argued that it was necessary to investigate these complaints as non-frivolous because although the event was approved, USC’s director of Campus life who approved the event, was not physically present at the time the event took place. Thus, she could not see the context within which it occurred and could not know that it was being carried out in the manner or for the purposes that the Plaintiffs articulated.[23] Second, it is not clear that meeting with Abbott was a more “restrictive” form of inquiring about the nature of what transpired, and in fact, giving individuals the opportunity to present their positions is often beneficial to them.[24]

Court’s Holding 

The Fourth Circuit Court of Appeals ultimately affirmed the district court’s ruling on both claims. To begin its discussion of the first issue embedded in the Plaintiffs’ as-applied challenge, the court recognized the Defendants’ qualified immunity unless Plaintiffs could show both “(a) the violation of a constitutional right, and (b) that the right was “clearly established” at the time of the First Amendment violation.”[25] The court first considered whether plaintiffs’ contention that their speech was chilled amounted to a harm under the First Amendment that would entitle them to damages.[26] Although noting some of the irony and novelty associated with the specifics of this case, the court recognized a precedential case in this area of First Amendment claims where it was previously willing to find the Plaintiff entitled to damages for a past chilling of his rights.[27] The court found that the standard articulated in that case and by the district court below was that a chilling of speech is only recognizable as a First Amendment harm “if it is objectively reasonable.”[28] In defining “objectively reasonable,” the court held that the action which purportedly caused the chilling must be “likely to deter a person of ordinary firmness from the exercise of the First Amendment.”[29] The court agreed with the Plaintiffs’ argument on this point, holding, “we do not doubt that a college student reasonably might be alarmed and thus deterred by an official letter from a University authority referring to an attached ‘Notice of Charge.’”[30]

However, the Court rejected the Plaintiffs’ proposed timeline for when this chilling effect took place, which Plaintiffs argued extended from the time Abbott received the letter to the time of this action. It found that following the meeting between Wells and Abbott, Defendants explained that it would not take further action against the Plaintiffs, thus no student of ordinary firmness would continue to self-censor.[31] In fact, the court suggested that had the University taken the opposite approach following the meeting between Wells and Abbott, the students may have continued to be deterred from exercising their rights and had a stronger claim. Following this point, the court recognized that the “more difficult question” involved in the case at hand is whether the Plaintiffs experienced such a chilling during the time between the letter announcing the potential for a full investigation and the meeting.[32]

While the court expressed that it was willing to recognize that a student of ordinary firmness may have been chilled during this more difficult timeframe to distinguish, it suggested in order for the Plaintiff to recover damages for such a chilling “it is not enough to establish that a person could have engaged in self-censorship as a result of the University Defendants’ actions.”[33] Here, the Court appeared to find the Defendants’ argument that the Plaintiffs could not articulate a specific intended expression that was chilled as a result of this incident compelling.[34] Further, based on the Plaintiffs’ testimony, this time period appeared to overlap with the Thanksgiving holiday, final exam period, and start of winter vacation, suggesting that no such self-censorship kept them from activities on campus.[35] Thus, in relation to this first issue, the Court held that the University’s inquiry into the complaints under “Student Non-Discrimination and Non-Harassment Policy” did not actually amount to a “cognizable restriction on Plaintiffs’ speech.”

Despite finding for the Defendant on this issue, which defeated the Plaintiffs’ First Amendment claims, the court went on to consider whether any restriction on the Plaintiffs’ free speech survived under the strict scrutiny standard of review. Here, the court recognized that had the University’s procedure lead to actual self-censorship, Plaintiffs would have had to show that the investigation practice under the “Student Non-Discrimination and Non-Harassment Policy” was “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.”[36] Since both parties had conceded that upholding a school environment that is free from illegal discrimination and harassment is a compelling end, the only part of the issue left to consider was whether the procedure was narrowly tailored to meet that end.[37] Ultimately, the court found that the investigative process under “Student Non-Discrimination and Non-Harassment Policy” was so tailored.[38]

The court rejected the Plaintiffs’ argument that the University should have screened these discrimination and harassment complaints as frivolous matters because there was allegedly harassing behavior and speech that occurred at the event, which a University cannot dismiss.[39] Furthermore, by contacting Abbott and not resorting to meeting with the complainants or other witnesses first, the court reasoned that the University not only afforded Abbott with greater due process, but also created a standard procedure under its “Student Non-Discrimination and Non-Harassment Policy,” which it could enact with ease and efficiency.[40] Therefore, the court agreed with the district court’s finding that the investigative process adopted by the University represented a “minimally invasive” narrowly tailored to the compelling end of prohibiting discrimination and harassment.

The Court also affirmed the district court’s ruling on the second claim on appeal, rejecting the Plaintiffs’ facial challenge to the “Student Non-Discrimination and Non-Harassment Policy” and request for injunctive relief based on their lack of standing.[41]

Conclusion

Although admittedly an “unusual First Amendment claim,” this case addresses the issue of free speech on college campuses, which as Plaintiffs’ “Free Speech Event” highlighted is a pertinent issue in today’s society.[42] While the Fourth Circuit appeared willing to recognize students’ claims that a chilling or self-censoring of First Amendment protected speech may amount to an actionable harm, it ultimately found that the Plaintiffs failed to establish such a chilling actually occurred in this case. Yet, by focusing much of the opinion on the Plaintiffs’ arguments on this issue and citing to Fourth Circuit precedent on the matter, it leaves open the opportunity to address the “chilling” effect University policies have on free speech again. Thus, despite its ultimate holding for the Defendants in this case, the Fourth Circuit presented some willingness to recognize First Amendment protections against campus policies, perhaps to a different result when not within the peculiarities of a case of this sort.

[1] Abbott v. Pastides, No. 17-1853, 2018 WL 3910682 at *1, *6 (4th Cir. Aug. 16, 2018).

[2] Id.

[3] Id. at *7.

[4] Id. at *7–*8.

[5] Id. at *9.

[6] Id. at *10.

[7] Id.

[8] Id. at *11.

[9] Id.

[10] Id. at *12.

[11] Id. at *12–*13.

[12] Id. at *14.

[13] Id.

[14] Id. at *17.

[15] See Cooksey v. Futrell, 721 F.3d 226, 236 (holding that a state regulatory board chilled plaintiff’s speech by taking actions that would reasonably deter or self-censor an individual from exercising his or her First Amendment rights fully).

[16] Abbott, 2018 WL 3910682, at *21.

[17] Id.

[18] Id. at *22.

[19] Id. at *23.

[20] Id. at *10.

[21] Id. at *16–*17.

[22] Id. at *19.

[23] Id. at *21–*22.

[24] Id. at *23.

[25] Id. at *13.

[26] Id. at *14.

[27] See Reyes v. City of Lynchburg, 300 F.3d 449, 455 (holding that a plaintiff may be entitled to damages under a First Amendment claim for a period, during the past where the plaintiff has alleged his rights were chilled).

[28] Abbott, 2018 WL 3910682, at *15.

[29] Id. (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

[30] Id. at *18.

[31] Id. at *17–*18.

[32] Id. at *18.

[33] Id. at *19; see also Reyes, 300 F.3d at 455 n. 8 (holding that because the plaintiff could not show he was deterred from a specific expression, he was not entitled to damages for a First Amendment claim based on a past chilling effect).

[34] Id.

[35] Id.

[36] Id. at *21 (citing Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 393 (E.D. Va. 2008)).

[37] Id. at *20; see e.g. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (holding that strict scrutiny applies to content-based speech regulated under the First Amendment).

[38] Id. at *24.

[39] Id. at *22 (citing S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76–77 (4th Cir. 2016)) (holding that a school may be found liable for a decision to not address student-on-student harassment).

[40] Id. at *24.

[41] Id. at *34.

[42] Id. at *14.

by: Hanna Monson and Sarah Spangenburg

Introduction

One recent issue circulating the legal world involves whether schools can discipline students for social media posts. In January 2018, the University of Alabama expelled a nineteen-year-old freshman after she posted two videos of her racist rantings to her Instagram account.[1] Another user recorded and posted the video on Twitter, which subsequently went viral and instilled anger both at the University of Alabama campus and across the country. As the University of Alabama is a public university, the student’s expulsion has raised questions surrounding the constitutionality of dismissing a student for using offensive speech. To further consider this constitutional issue, this post highlights some of the arguments made in a factually similar case Keefe v. Adams (8th Cir. 2016).[2] The Eighth Circuit concluded that a student who was removed from the Nursing Program of a college after he posted Facebook posts indicating frustration towards other students in the program did not have his First Amendment nor due process rights violated. While this Eighth Circuit case is the focus of our discussion, it is important to note that a case of this sort has also arisen in the Fifth Circuit, Bell v. Itawamba County School Board, where the Fifth Circuit also decided against the student and determined that his First Amendment free speech rights were not violated.[3]

Facts

Craig Keefe was a student in the Associate Degree Nursing Program at Central Lakes College.[4] Two students complained about posts the Keefe made on his Facebook account.[5] After a meeting with CLC Director of Nursing Connie Frisch during which “[Keefe] was defensive and did not seem to feel responsible or remorseful,” Frisch made the decision that Keefe should no longer be in the program.[6] In a letter sent to Keefe after the meeting, Frisch expressed concerns about Keefe’s professionalism and inability to represent the nursing profession because of his posts.[7] All students enrolled in this program had to follow the Nurses Association Code of Ethics, which included guidance on issues such as “relationships with colleagues and others,” “professional boundaries,” and “wholeness of character.”[8] Keefe appealed this decision to Vice President of Academic Affairs, Kelly McCalla, but the appeal was denied, prompting this lawsuit.[9]

First Amendment Claims

Keefe first contends that his First Amendment rights were violated because “a college student may not be punished for off-campus speech . . . unless it is speech that is unprotected by the First Amendment, such as obscenity.”[10] The Eighth Circuit addressed first the threshold question of whether a public university may even adopt this Code of Ethics.[11] The court held that the state has a large interest in the regulation the health profession, and “[b]ecause professional codes of ethics are broadly worded, they can be cited to restrict protected speech.”[12]

The court then considered Keefe’s contention that the university violated his First Amendment rights. The court held that “college administrators and educators in a professional school have discretion to require compliance with recognized standards of the profession, both on and off campus, ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’”[13] Keefe’s words showed that he was acting contrary to the Code of Ethics, and “compliance with the Nurses Association Code of Ethics is a legitimate part of the Associate Degree Nursing Program’s curriculum . . . .”[14] The posts targeted and threatened his classmates and impacted their education, as one of the students stated she no longer wished to be in the same clinical as Keefe.[15] Keefe’s words also had the possibility of impacting patient care because adequate patient care requires the nurses to communicate and work together.[16] The court did not wish to interfere with Frisch’s discretion in deciding that Keefe’s actions showed that he was not fit for the profession, and the First Amendment did not prevent Frisch from making this decision.[17] Given that the district court had granted the defendant’s motion for summary judgment on the First Amendment claims, the Eighth Circuit affirmed.[18]

Due Process Claims

The second issue presented in this case was whether a violation of due process existed. Keefe argued that the Defendants violated his Fourteenth Amendment right to due process when he was removed from the Associate Degree Nursing Program.[19] Supreme Court precedent states that “federal courts can review an academic decision of a public educational institution under a substantive due process standard.”[20] One key inquiry is whether the removal was based on academic judgment that is not beyond the pale of reasoned academic decision making.[21] Even if a substantive due process claim is cognizable in these circumstances, there is no violation of substantive due process unless misconduct of government officials that violates a fundamental right is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” of federal judges.[22] Here, the court determined that Keefe’s removal rested on academic judgment that was not beyond the pale of reasoned academic decision making.[23] Ultimately, the court determined that Keefe had no substantive due process claim.[24]

The court also analyzed the procedural due process claim that Keefe presented. Citing Goss v. Lopez[25], the Eighth Circuit highlighted that the Supreme Court has held that even a short disciplinary suspension requires the student “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”[26] The court believed that the Keefe’s removal after a disciplinary proceeding provided the kind of inquiry that involved effective notice and allowed Keefe to give his version of the events, thereby preventing erroneous action.[27] Ultimately, the court concluded that Keefe was given the due process he was required by the Fourteenth Amendment.

Conclusion

Ultimately, this issue presents free speech concerns for students. The decisions of the Eighth and Fifth Circuits seem to showcase that students’ free speech rights seem to stop at the door of the school, which contradicts much Supreme Court precedent. The prevalence of social media in today’s society ensures that this issue will continue to exist, and the Supreme Court one day might weigh in.

****

[1] Marwa Eltagouri, She was expelled from college after her racist chants went viral. Her mother thinks she deserves it.,Wash. Post (Jan. 19, 2018), https://www.washingtonpost.com/news/grade-point/wp/2018/01/19/she-was-expelled-from-college-after-her-racist-rants-went-viral-her-mother-thinks-she-deserves-it/?utm_term=.b0cd4c397d35.

[2] The full opinion can be found at: http://media.ca8.uscourts.gov/opndir/16/10/142988P.pdf.

[3] Mark Joseph Stern, Judges Have No Idea What to Do About Student Speech on the Internet, Slate (Feb. 18, 2016 5:15 PM), http://www.slate.com/articles/technology/future_tense/2016/02/in_bell_v_itawamba_county_school_board_scotus_may_rule_on_the_first_amendment.html.

[4] Keefe v. Adams, 840 F.3d 523, 525 (8th Cir. 2016).

[5] Id.at 526.

[6] Id. at 526–27.

[7] Id. at 527–28.

[8] Id. at 528–29.

[9] Id. at 526, 529.

[10] Id. at 529.

[11] Id. at 529–30.

[12] Id. at 530.

[13] Id. at 531 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)).

[14] Id.

[15] Id. at 532.

[16] Id.

[17] Id. at 533.

[18] Id.

[19] Id. at 533.

[20] Regents of University of Michigan v. Ewing, 474 U.S. 214, 222 (1985).

[21] Keefe, 840 F.3d at 533-34.

[22] Cnty. of Sacremento v. Lewis, 523 U.S. 833, 847 n.8 (1998) (quotation omitted).

[23] Keefe, 840 F.3d at 534.

[24] Id.

[25] 419 U.S. 565, 581 (1975).

[26] Keefe, 840 F.3d at 535.

[27] Id.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST. BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

By: Robert Tucci

On Wednesday, October 18, 2017, the Fourth Circuit issued a published opinion in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Several residents of Prince George’s County, Maryland, along with the American Humanist Association (“AHA”) – a non-profit organization dedicated to upholding the founding principle of separation of church and state – brought suit against a Maryland government agency, claiming that the government’s maintenance of a 40-foot tall World War I Latin Cross monument violated the Establishment Clause. The district court granted summary judgment for the government, and the plaintiffs appealed. The Fourth Circuit reversed and remanded the decision of the lower court, finding that the Cross violated the second and third prongs of the Lemon test.

Facts and Procedural History

On September 28, 1919, several private organizers held a groundbreaking ceremony on land owned by the city of Bladensburg, Maryland, to begin erecting a giant 40-foot Latin Cross memorial. The Cross was built next to a pre-existing plaque which was placed to honor 49 World War I United States soldiers. To fund the construction of the Cross, the private organizers obtained funding from private donors. The donors were required to sign a pledge sheet, which recognized the existence of “one god” (text of pledge sheet above).

The private organizers ran out of money in 1922 to continue funding the project. As a result, a local post of the American Legion stepped in to continue fundraising and construction of the Cross. Several of the Legion’s fundraising and memorial services concerning the Cross, both before and after construction was completed, contained exclusively sectarian Christian activities. Such activities included prayers at invocations and benedictions, Sunday worship service, speaker-led prayers, and singing Christian hymns. The Legion completed construction in 1925, and placed the four-story tall Latin Cross in the median of a three-way highway intersection in Bladensburg.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland government agency, obtained title to the Cross and the land beneath it. The Commission claimed it acquired the Cross for safety reasons due to the proximity of the Cross to a busy highway. Since 1961, the Commission has spent $117,000 to maintain and repair the Cross, with an additional $100,000 set aside in 2008 for future repairs.

The Cross is part of the Bladensburg Veterans Memorial Park. All other monuments in the park are ten feet tall or shorter, devoid of religious iconography, and located at least 200 feet from the Cross. The Legion’s symbol (a small star inscribed with “U.S.”) is attached near the top of the Cross, and an American flag resides near the Cross. The plaque honoring the 49 soldiers sits on an obscured corner on the Cross’s rectangular base, and has been weathered to the point of being illegible.

The AHA and several non-Christian residents of Prince George’s County, who faced multiple instances of unwelcome contact with the Cross while driving, filed suit against the Commission, claiming that the Cross amounts to government affiliation with Christianity. The AHA and residents sought a declaratory judgment that the Commission’s conduct violates the Establishment Clause and the plaintiffs’ constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, nominal damages, and attorney’s fees and costs.

Both sides filed cross-motions for summary judgment, with the district court granting summary judgment to the Commission. The district court found that the Commission and Cross satisfied the three prong test set out in Lemon v. Kurtzman. The plaintiffs subsequently appealed to the Fourth Circuit.

Do Plaintiffs Have Standing to Sue?

The Court first analyzed the Commission’s argument that the plaintiffs lack standing to bring suit. The Commission contended that the plaintiffs had not “forgone any legal rights” as a result of the Commission’s conduct. The Court rejected this argument, stating that “[a]n Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury.” Specifically, the Court found that the non-AHA plaintiffs have standing due to their alleged unwelcome direct contact with the Cross, and that the AHA has standing to sue because an association can sue on behalf of its members if the members would also have standing to sue on their own.

Does Van Orden Control?

The Court then turned to the Commission’s argument that the holding in Van Orden v. Perry, rather than the Lemon test, should control. Van Orden dealt with a similar issue of whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. The Court acknowledged that the plurality opinion in Van Orden is favorable to the Commission, but declined to follow it due to Justice Breyer’s controlling (and limiting) concurrence.

In his concurrence, Justice Breyer lays out several non-exhaustive factors for evaluating monuments eliciting both a secular and non-secular purpose, including: (1) the circumstances surrounding the monument’s placement; (2) its physical setting; and (3) the length of time it remains unchallenged. However, the Court noted that Justice Breyer reaffirmed Lemon by saying that it is a “useful guidepost[],” and remains a “more formal Establishment Clause test[].” Thus, the Court chose to apply the Lemon test, while giving due consideration to the Van Orden factors.

Does the Bladensburg Cross Satisfy the Lemon Test?

Next, the Court analyzed whether the Bladensburg Cross is constitutional under the Lemon test. A government display is constitutional under the Lemon test if it satisfies three prongs: (1) the display has a secular purpose; (2) the display does not have a “principle or primary effect” that advances, inhibits, or endorses religion; and (3) the display does not foster “an excessive entanglement between government and religion.” If the display violates even one prong, it is unconstitutional.

Secular Purpose

The Court held that the Cross satisfied the first prong of the Lemon test. The Court acknowledged that it is a fairly low burden to establish a secular purpose for a government display, because even if the display has “dual legitimate purposes” (one secular and one sectarian), it still satisfies the first prong of the Lemon test. The Commission articulated several secular reasons for displaying and maintaining the Cross, including ensuring safety near a busy highway, and the preservation of a significant war memorial. The Court found these to be legitimate secular reasons, thus finding that the Cross satisfied the first prong of the Lemon test.

Primary Effect

Next, the Court held the Cross violated the second prong of the Lemon test. The Court found the relevant question under the second prong to be “does the practice under review in fact convey a message of endorsement or disapproval of religion?” The Court stated that this question must be answered from the perspective of a “reasonable observer” – someone who “must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” Therefore, the Court found that a detailed factual analysis of the Cross’ meaning, history, and secularizing elements was required to determine its primary effect.

Under the “meaning” inquiry, the Court concluded that the Latin cross is the “preeminent symbol of Christianity,” one that is not a symbol of any other religion. The court went on to say that even the Latin cross’ supposed secular symbology of death and memorialization is tied to the Christian sectarian teaching of Jesus Christ’s death and resurrection. Further, the Court found the Latin cross differed from other religious monuments, like the Ten Commandments, as it is not tied to the United States’ history and government.

Turning to the “history” inquiry, the Court found that, while the history of Latin Cross’ in general favors the plaintiffs, the history of the Bladensburg cross does not favor either party over the other. The Court centered its analysis around the fact that the Cross has a “semisecular” history, as it has been the object of both sectarian Christian activities – including Christian prayers, Sunday services, and fundraising using the donor’s pledge above – and secular Veterans-focused ceremonies.

Finally, the Court determined that, while the Cross does contain a few secular elements, they are easily overshadowed by the sectarian ones. In coming to its conclusion, the Court cited the fact that the Cross is much larger than the rest of the monuments in the Bladensburg Veterans Memorial Park, is 200 feet or more from any of the other monument, and that the “immense size and prominence of the Cross necessarily ‘evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones'” (referencing the Latin crosses in Arlington Cemetery).  Additionally, the Court emphasized the fact that the Christian iconography of the Cross was clearly visible to observers, while the secular symbols were hidden or obscured.

Ultimately, the Court concluded that a reasonable observer would “fairly understand the Cross to have the primary effect of endorsing religion,” as the factors above “collectively weigh in favor of concluding that the Cross endorses Christianity – not only above all other faiths, but also to their exclusion.” Thus, the Court held that the Cross violated the second prong of the Lemon test.

Excessive Entanglement

Lastly, the Court held that the Cross violated the third prong of the Lemon test. In coming to this determination, the Court said that excessive entanglement with religion “is a question of kind and degree,” and may include “pervasive monitoring or other maintenance by public authorities.” The Court found the Cross excessively entangles the government with religion for two reasons: (1) the Commission owns and maintains the Cross and the property it is displayed on, and (2) the Commission is displaying the “hallmark symbol of Christianity” in a very dominant and visible fashion that excludes all other religious iconography and tenants.

Conclusion

The Forth Circuit held that the Commission’s ownership and maintenance of the Bladensburg Cross violates the second and third prong of the Lemon test, and is an unconstitutional government endorsement of religion under the Establishment Clause. The Court reversed the decision of the district court and remanded the case for further proceedings.

By Chase Stevens

Overview

On October 17, 2017, the Fourth Circuit published its decision in Borzilleri v. Mosby. This case dealt with the issue of First Amendment rights for prosecutors engaging in political activity as private citizens.

Since around 2006, Plaintiff (Borzilleri) had been an Assistant State Attorney, which required her to make plea deals and try serious cases. In 2014, while serving as an Assistant District Attorney in Baltimore City, Borzilleri chose to support the losing candidate, Gregg Bernstein, in the Democratic primary for State Attorney. Defendant (Mosby), who won that Democratic primary, was later elected as the new State Attorney. Four days after Defendant took office on January 5, 2015, Defendant fired Plaintiff without explanation.

Plaintiff filed suit against Defendant in the District of Maryland on December 9, 2015, alleging that Defendant violated her First Amendment rights to free association and speech. Defendant filed a motion to dismiss for failure to state a claim. The district court granted Defendant’s motion to dismiss, holding that Plaintiff’s First Amendment rights were not violated because assistant state attorneys are “policymakers” and that political loyalty to the State’s head attorney was an appropriate requirement. The district court also held that Plaintiff’s free speech rights were not violated because, as a policymaker, the balance of free speech interests tipped in favor of the government.

Freedoms of Association and Speech Not Violated

The Fourth Circuit affirmed the district court’s dismissal of Plaintiff’s complaint.

First, the Fourth Circuit held that the firing of Plaintiff did not violate her First Amendment right to free association. In Elrod v. Burns, the Supreme Court held that under the First Amendment, “policymakers” could be discharged for their political beliefs. 427 U.S. 347, 375 (1976) (Stewart, J., concurring). The Fourth Circuit reasoned that because Assistant State Attorneys exercise discretion on matters of political concern in carrying out their function and have a special role in implementing the State’s Attorney’s policies, they are policymakers. Here, the Fourth Circuit held that Assistant State Attorneys are policymakers under the First Amendment, and therefore there was no First Amendment association violation.

Second, the Fourth Circuit held that Plaintiff’s firing did not violate her First Amendment right to free speech. Initially, the Court found that Plaintiff spoke as a private citizen in endorsing a candidate and was not speaking within her duties as a prosecutor. Relying upon their policymaking determination in the first issue, however, the Fourth Circuit found that policymakers enjoy “substantially less” free speech protection, even when acting as private citizens. The Court found that the government’s overriding interest in “ensuring an elected official’s ability to implement his policies through his subordinates” outweighed Plaintiff’s right to remain an Assistant State Attorney after engaging in her political speech. Therefore, Plaintiff had no First Amendment claims against Defendant.

Plaintiff’s Arguments

While Plaintiff ultimately lost her case, she raised several important considerations in her appellant’s brief.

First, in regard to the First Amendment free association claim, Plaintiff argued that political loyalty should not be an appropriate job requirement for prosecutors. Plaintiff argued, though, that even if loyalty to Defendant was an appropriate requirement for the job of Assistant State Attorney, there was no evidence that Plaintiff was ever disloyal to Defendant prior to her termination. Moreover, Plaintiff argued that because an Assistant State Attorney’s job does not involve creating policy, that role should not count as a “policymaker” falling outside of First Amendment protection. The Fourth Circuit, however, rejected this argument.

Second, in regard to the First Amendment free speech claim, Plaintiff argued that her rights to free speech were violated because Defendant terminated her in retaliation for the exercise of her political speech. Plaintiff argued that Defendant overly relied upon Plaintiff’s role as a “policymaker” to negate any First Amendment claims, when prior courts only looked at the “policymaker” status of a job as one of many factors to consider in assessing a free speech claim. Applying a free speech balancing test, Plaintiff argued that her speech should be protected because it never actually disrupted, and would never reasonably disrupt, governmental efficiency.  Once again, the Fourth Circuit rejected this argument.

Conclusion

This case lays out the general rule that assistant prosecutorial attorneys, working under the direction of elected head prosecutors, are policymakers for the purposes of First Amendment rights. Therefore, assistant prosecutorial attorneys are entitled to less protection of First Amendment rights when engaged in political speech, even as private citizens. When openly supporting a political candidate for the head prosecutor in their office, an assistant prosecutorial attorney should be aware that he might not have a legal claim of action should the opposing candidate win and he is subsequently fired.

American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.