Wake Forest Law Review

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 Thomas Cain and Noah Hock

Wood v. Arnold

In this civil case, Appellant Wood claimed teaching and assessment materials from a high school world history class violated her First Amendment rights under either the Establishment Clause or the Free Speech Clause.  At issue were a statement comparing Islamic and Christian faiths and a worksheet requiring Wood to demonstrate her knowledge of some of the tenets of Islam.  Considering the challenged materials within the context of the world history curriculum, the Fourth Circuit found the materials did not violate the Establishment Clause because they did not impermissibly endorse any religion and did not violate the Free Speech Clause because they did not compel Wood to profess any religious belief.  As such, the Fourth Circuit affirmed the District Court’s ruling granting summary judgment in favor of the defendants.

Rodriguez-Arias v. Whitaker

In this case, Petitioner Rodriguez-Arias sought review of the final order of the Board of Immigration Appeals (BIA) which denied his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The Fourth Circuit joined the Ninth and Third circuits in holding that when deciding a CAT case, the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.  The Court held that the BIA failed to properly aggregate the risks of torture and failed to meaningfully engage with the documentary and additional evidence about the risk of torture that Petitioner faces in El Salvador.  Thus, the Court vacated the BIA’s order and remanded the case for further proceedings consistent with this opinion.

Norfolk Southern Railway Company v. City of Roanoke

In this civil case, Appellant Norfolk Southern Railway sought review of the district court’s order granting summary judgment for the City of Roanoke on Appellant’s claims of discriminatory taxation in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act).  The case hinged on the characterization of the “stormwater management charge” as either a tax or a fee.  After weighing the relevant factors, the Fourth Circuit ultimately held that the charge was a fee, as it was more so a part of a regulatory scheme with the purpose whose purpose is to remedy the environmental harms and to hold stormwater dischargers responsible.  Thus, the Fourth Circuit affirmed the district court’s decision granting summary judgement for the defendants because only taxes are subject to challenge under the 4-R Act.

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: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

By Taylor Ey

On August 6, 2015, the Fourth Circuit issued its unanimous, published opinion in the civil case of Cahaly v. LaRosa.  This case involves Mr. Robert Cahaly’s (“Plaintiff”) constitutional challenge of South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446(A)), asserting that the statute violates the First Amendment.  After applying the Supreme Court’s 2015 test in Reed v. Town of Gilbert, the Fourth Circuit decided that South Carolina’s statute did not survive strict scrutiny.  However, it also decided that Cahaly lacked standing to bring his other constitutional challenges.  Cahaly also sought damages from law enforcement officials, Paul C. LaRosa, III, and Reginald I. Lloyd (“Defendants”), who arrested him.  The Court affirmed the district court’s grant of summary judgment in favor of defendants.

Applying Reed to Determine Content Neutrality

The Fourth Circuit applied the test in Reed to determine whether the statute’s restriction was content-neutral based restrictions on speech.  The statute prohibits robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.”

Under Reed, as a threshold inquiry, courts assess whether the law is content neutral on its face.  Next, if facially neutral, courts ask whether the law cannot be justified without reference to the content of the regulated speech or adopted by the government because of a disagreement with the message the speech conveys.

Applying Reed, the Fourth Circuit found that the statute is content based on its face.  The statute forbids calls with a consumer or political message and does not apply to calls made for any other purpose.

Because the Regulation Is Content Based, the Court Applied a Strict Scrutiny Analysis  

To survive strict scrutiny, the government must prove that the restriction furthers a compelling government interest and is narrowly tailored to further that interest.  In this case, South Carolina asserted its interest was to “protect residential privacy and tranquility from unwanted and intrusive robocalls.”  The Fourth Circuit assumed that it was a compelling interest.  However, it held that the statute was not the only way to serve this interest, and thus the statute was unconstitutional.  The Court further stated that the statute was underinclusive.

Plaintiff Lacked Standing to Assert Compelled-Speech Challenge

Additionally, Cahaly raised a compelled speech challenge, which the Defendants appealed.  Defendants argued that Calahy did not suffer an “injury in fact,” and therefore did not have standing to challenge the exceptions to the statute.  The Fourth Circuit agreed because Cahaly was not charged with a violation of the statute.  Because the district court ruled for Cahaly, stating that the exceptions were unconstitutional, the Fourth Circuit vacated the district court’s judgment on this issue.

The Fourth Circuit Affirmed the District Court’s Grant of Summary Judgment

The arresting officer had probable cause to arrest Cahaly for violating the anti-robocall statute.  Officer LaRosa had six witnesses who described the robocalls, a recording of a phone call, and an investigation that connected the phone number to Cahaly.  This evidence was sufficient to give probable cause, and therefore the Court affirmed.

POLICE 10

By Sarah Saint

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Hunter v. Town of Mocksville, North Carolina. Plaintiffs Keith L. Hunter (“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin (“Medlin”)—officers of the Mocksville Police Department (“MPD”) in Mocksville, North Carolina—were concerned about corruption in the MPD and reached out to the North Carolina Governor’s Office as public citizens. Public employees still have First Amendment rights when they speak as “citizen[s] on a matter of public concern.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quotation marks and citation omitted). Accordingly, Plaintiffs enjoy First Amendment protection in their outreach. The Fourth Circuit affirmed the district court’s denial of summary judgment to Defendants Robert W. Cook (“Cook”), Administrative Chief of Police of the MPD, and Christine W. Bralley (“Bralley”), Town Manager of the Town of Mocksville.

Misconduct in the MPD

Plaintiffs Hunter, Donathan, and Medlin became concerned with Defendant Cook’s behavior and leadership as police chief. Plaintiffs saw him excessively drink alcohol in public and in uniform, which they felt reflected poorly on the police department. They also believed Cook drove a police car with blue lights flashing and behaving as a law enforcement officer when he had never been certified, in violation of the law. Further, Plaintiffs suspected Cook misused public funds for personal gain, racially discriminated, and “fixed” tickets for his friends.

Plaintiffs reported their concerns to Defendant Bralley but saw no improvement and worried about retaliation. Deputy police chief Daniel Matthews (“Matthews”) criticized Donathan regarding his concerns he raised with Bralley, and Cook demoted Medlin.

In November 2011, Cook reorganized the department, giving Matthews a promotion to second-in-command and demoting Hunter, one of only two African-Americans in the MPD. Hunter subsequently filed a grievance but his concerns were dismissed. Donathan was promoted and instructed to “adhere to the ‘politics’ of the MPD.” The next month, the three Plaintiffs and two other officers met privately to discuss their concerns and decided to seek outside investigation as private citizens.

Plaintiffs met with the National Association for the Advancement of Colored People (“NAACP)”, which advised them to contact a state agency. Hunter purchased a disposable phone so they could report their citizen complaints separately from their affiliation with the MPD. They then contacted the North Carolina Attorney General with the disposable phone. The Attorney General referred them to local individuals closely aligned with Cook, and the Plaintiffs felt they could not contact them. Plaintiffs called the North Carolina Governor’s Office with the disposable phone and expressed their concerns with no identifying details. Donathan later identified the MPD to the Governor’s Office, and the Governor’s Office offered to report their concerns to the State Bureau of Investigation (“SBI”).

The next week Medlin saw a local SBI agent at the MPD and noted the SBI agent had a close relationship with Cook and Mathews. The agent called the disposable phone, but the Plaintiffs did not return the call and disposed of the disposable phone because they felt they could not trust the agent. The phone was found, and the agent contacted the Davie County Sheriff’s Office to see if the phone belonged to anyone at the Sheriff’s Office. The Sheriff’s Office contacted the MPD and asked to run the number through MPD records. Bralley set up an online Sprint account and saw that both Donathan and Medlin had called and received calls from the disposable phone using their MPD-issued mobile phones.

MPD Fired Plaintiffs in Retaliation

Cook fired all three Plaintiffs for “conduct unbecoming a Officer” at the end of December 2011, the first time he had fired anyone at MPD, even though officers had used illegal drugs and engaged in criminal activity during his tenure. Later, in a memo to the town attorney, Cook mentioned Plaintiff’s call to the Governor and SBI and claimed the Plaintiffs conspired to discredit Cook, Bralley and others.

District Court Denied Summary Judgment to Defendants

In April 2012, Plaintiffs brought suit against Cook, Bralley, and the Town of Mocksville alleging their First Amendment rights were violated because they were fired for speaking out about corruption at the MPD. After filing an answer and engaging in discovery, Defendants moved for summary judgment. In October 2013, the district court granted summary judgment to all Defendants on the Section 1983 claims but denied summary judgment on the state law wrongful discharge and constitutional claims. The district court granted a motion for reconsideration and reversed course as to Cook and Bralley, holding that they were not entitled to qualified immunity.

District Court Rightfully Rejected Defendants’ Motion for Summary Judgment on Qualified Immunity Grounds

Qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

The Fourth Circuit rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity—arguing that no constitutional violation occurred because Plaintiffs spoke as public employees and not citizens, so the First Amendment does not protect Plaintiffs from retaliation. Courts must balance the interests of the public employee as a citizen with the right to speak out with the state’s interest in controlling the operation of the agencies. This balancing test has two steps. The first step asks whether the public employee spoke as a citizen on a matter of public concern. If the answer is no, the employee does not have First Amendment protections. If the answer is yes, the next step asks whether the public employee’s interest in speaking out about the matter of public concern outweighs the government’s interest. The first step is the primary concern of this appeal. To determine whether the public employee spoke as a citizen, the court must consider the employee’s daily professional activities.

The Defendants contend that reporting crimes is the daily professional activities of police officers like the Plaintiffs. However, the Court found calling the Governor’s Office and reporting concerns about the MPD are not part of officers’ daily professional activities. Accordingly, the Fourth Circuit found that the Plaintiffs were acting as private citizens, not public employees, speaking out on matters of public concern. Defendants asserted no countervailing state interest.

The Fourth Circuit also rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity because the rights were not clearly established at the time. The dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful. Here, it was clearly established in the Fourth Circuit that an employee’s speech about serious government misconduct is protected under the First Amendment. Therefore, the district court rightfully denied qualified immunity to Cook and Bralley on the bases that no violation occurred and that the law was not clearly established. Accordingly, the Fourth Circuit affirmed the judgments of the district court.

Dissent

Judge Niemeyer dissented because he would grant qualified immunity to Cook and Bralley. It was not clear to Cook and Bralley at the time the officers were fired that they had complained as citizens and not as employees. It was not clear as a matter of law that police officers complaining to the Governor’s Office about departmental corruption is speech by a citizen and not an employee. Had they complained as employees, they would not have First Amendment protections and retaliatory firing would have been lawful. Officials should not be held liable for “bad guesses in grey areas.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). To the dissent, Cook and Bralley made a bad guess in a grey area and accordingly should not be held liable.

IMG_0001 copy

By Malorie Letcavage

Overview

In a published opinion of a civil case issued on April 28, 2015, the Fourth Circuit affirmed the lower court’s decision to grant summary judgment on the basis of qualified immunity in the case of Raub v. Campbell. The appellant, Brandon Raub, argued that his Fourth Amendment right to be free from unreasonable seizures, and his First Amendment right to free speech were violated by the appellee, Michael Campbell. Raub also sought injunctive relief even if his constitutional claims failed. In reviewing the district court’s grant of summary judgment, the Fourth Circuit used a de novo standard. The Fourth Circuit upheld the district court’s grant of summary judgment on the basis of qualified immunity because it found that Raub’s Fourth Amendment rights were not violated, he had not pled sufficient facts for a First Amendment claim and there was no abuse of discretion in the district court’s dismissal of his injunctive claim for relief.

Factual Background

In the summer of 2012, two Marine veterans that had served with Brandon Raub contacted the FBI about Raub’s Facebook posts. Raub posted threatening messages and employed extremist language in numerous posts. The FBI and local law enforcement visited Raub to question him about his Facebook activity. The agents reported that Raub’s behavior was unusual because during the interview he was preoccupied, could not maintain eye contact and displayed extreme mood swings.

The agents contacted Michael Campbell, a certified mental health “prescreener” affiliated with the local emergency services. Campbell recommended Raub be detained for evaluation, at which point the officers took Raub to the local jail. Campbell interviewed Raub and noted the same behavior the officers had described; Raub was distracted, and had trouble answering questions. Campbell concluded Raub might be paranoid and delusional.

Campbell petitioned and was granted a temporary detention from the magistrate because Raub was displaying signs of psychosis. Four days into the temporary detention, the court ordered that Raub be admitted to the hospital for thirty days. However, a few days later Raub was released because the court found that the petition had insufficient factual allegations. Raub then filed suit under 42 U.S.C. §1983 against Campbell. The district court granted Campbell’s motion for summary judgment due to qualified immunity and denied Raub’s request for injunctive relief.

42 U.S.C. 1983

This statute provides an avenue to pursue a civil action for a deprivation of constitutional rights. It lays out that any person acting under the color of state law (which, as in this case, can include a mental health professional associated with emergency services) who subjects anyone to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” will be liable to the party injured.

Appellant’s Fourth Amendment Rights Were Not Violated

The court explained that qualified immunity analysis has two prongs: 1. Whether the plaintiff has established the violation of a constitutional right and 2. Whether that right was clearly established at the time of the alleged violation.

The court decided to start its evaluation with the second prong and held that Campbell’s conduct was not proscribed by clearly established law. The court noted that a seizure requires probable cause but there is a lack of clarity in the law concerning seizures for psychological evaluations. The court then went on to cite the major cases in the Fourth Circuit which all held that that seizures for psychological evaluation were upheld when the person was a threat to himself or others. The court held that due to the totality of the factors, including the content of Raub’s Facebook posts, the initial observations by the officers and Campbell’s observations of Raub, Campbell did not violate Raub’s Fourth Amendment rights because his petition to detain was reasonable based on existing precedent.

Appellant Failed to Allege Sufficient Facts for a First Amendment Claim

            Though Raub contended that Campbell only recommended detention based on Raub’s “unorthodox political statements,” the court found that Campbell had numerous other reasons for recommending detention. The court cited the content of the Facebook posts, Raub’s behavior during the interview, and the increasingly threatening nature of his posts. Even if the political statements were part of the decision, the court found Campbell had plenty of other reasons for Raub to be detained. Thus the court held that Raub did not sufficiently allege facts for a First Amendment violation and Campbell was entitled to qualified immunity.

Appellant’s Claim for Injunctive Relief Was Properly Rejected 

            The court reviewed the denial of injunctive relief for abuse of discretion, and it found none. Under §1983 when a plaintiff is seeking injunctive relief, he needs to demonstrate a real or immediate threat that he will be wronged again in a similar way. However, Raub only alleged that his political beliefs would subject him to seizures and retaliation in the future. The court found that this claim was too speculative and did not reach the level needed to grant equitable relief.

Conclusion

The court did not find that Raub’s Fourth Amendment rights were violated nor did it find that he had alleged sufficient facts for a First Amendment claim. It also found no abuse of discretion in the dismissal of the claim for injunctive relief. Therefore, the court affirmed the lower court’s grant of summary judgment.

By Robert Samuel

American universities are known both for their students’ enthusiasm for alcohol and for producing popular student-run newspapers.{{1}}But is there a connection between alcohol consumption and student media?  The Virginia Beverage Control Board (“VBCB”), an agency of the Commonwealth of Virginia, said “yes.”  To counter this perceived problem, the VBCB promulgated a regulation that prohibits the “advertisements of alcoholic beverages” in “college student publications unless in reference to a dining establishment.”{{2}} The dining establishment exception is narrow, as these advertisements “shall not contain any reference to particular brands or prices.”{{3}}

VBCB’s college newspaper regulation costs the publishers of the student newspapers at Virginia Tech (The Collegiate Times) and the University of Virginia (The Cavalier Daily) a combined $60,000 a year in advertising revenue.{{4}}  Accordingly, the two newspapers filed a lawsuit in the U.S. District Court for the Eastern District of Virginia, arguing that the law unconstitutionally violated the free speech clause of the First Amendment.  In the case—Education Media Co. at Virginia Tech, Inc. v. Swecker(“Swecker”)—the district court granted summary judgment for the college newspapers, permanently enjoining enforcement of the regulation and holding that the law facially violated the First Amendment.{{5}}  The U.S. Court of Appeals for the Fourth Circuit, however, reversed and remanded, vacating the permanent injunction because it found the statute to be facially constitutional.{{6}}  The Supreme Court denied the college newspapers’ petition for writ of certiorari.{{7}}

This essay will argue the Fourth Circuit wrongly decided the case for two reasons: (1) its holding is inconsistent with Supreme Court guidance on commercial speech; and (2) it failed to determine that 5-20-40 is an unconstitutional financial regulation on a narrow sector of the media.  Regulation of vice advertisements has consistently confounded courts.{{8}}  The Fourth Circuit did little to settle the law on the subject in Swecker, and the Supreme Court should use its next opportunity to clarify the scope of the First Amendment’s protection.  If it does not, college newspapers will continually be pinched by state regulations that do little to advance their stated interests while also violating the First Amendment rights of an important segment of the press that has few resources to protect itself in courts.

I.  The First Amendment, Commercial Speech,
and Vice Regulation

The Supreme Court first explicitly recognized First Amendment protections of truthful and non-misleading commercial speech about lawful products in the 1970s.  The Court explained that the protection of commercial speech is necessary for preserving “a predominantly free enterprise economy.”{{9}}  The Supreme Court stated that it is “a matter of public interest that [private economic] decisions, in the aggregate, be intelligent and well informed.”{{10}}  The Court held that the “highly paternalistic approach” of preventing the dissemination of truthful and non-misleading speech to be inconsistent with the First Amendment.  Thus, the First Amendment even protects a communication that “does no more than propose a commercial transaction.”{{11}}

The Supreme Court created a four-part test for determining the constitutionality of commercial speech regulations in Central Hudson Gas & Electric Corporation v. Public Service Commission.{{12}}  First, the speech must concern lawful activity and not be misleading.{{13}}  Second, the government must assert a “substantial interest” in regulating the speech.{{14}}  If both the first two prongs are satisfied, the courts next “must determine whether the regulation directly advances the governmental interest asserted.”{{15}}  Fourth, courts are required to conclude whether the regulation is “not more extensive than is necessary to serve that interest.”{{16}}

In Swecker, the Court quickly and correctly determined the regulation of alcohol advertisements in college newspapers passed the first two prongs.  The Fourth Circuit, however, ran afoul of Supreme Court precedent in its analysis of the third and fourth of theCentral Hudson factors.  The Fourth Circuit found that section 5-20-40 satisfied the third prong of the Central Hudson test because the regulation advanced the substantial interest of curbing binge and underage drinking “directly and materially.”{{17}}  In making its determination, the court relied on the Supreme Court guidance that the advancement “need not be proven by empirical evidence; rather, it may be supported by ‘history, consensus, and simple common sense.’”{{18}}

Judge Shedd’s majority opinion explained that college students are particularly attracted to the college newspapers’ publications.{{19}}  This fact combined with the evidence that alcohol distributors merely desired to advertise in the college newspapers was enough for the court to find that the VBCB satisfied the link between advertisements and underage and binge drinking.  The court wrote, “It is counterintuitive for alcohol vendors to spend their money on advertisements in newspapers with relatively limited circulation, directed primarily at college students, if they believed these ads would not increase demand by college students.” {{20}}

The Fourth Circuit’s reasoning on Central Hudson’s third prong cannot be squared with Supreme Court precedent.  The Supreme Court has explicitly held that the four-part Central Hudson test comprises an intermediate level of review.{{21}}  The Court has held “this burden [on the government] is not satisfied by mere speculation or conjecture.”{{22}}  A regulation such as section 5-20-40 “may not be sustained if it provides only ineffective or remote support for the government’s purpose”{{23}} or if there is “little chance” the regulation will substantially advance the state’s goal.{{24}}  The Supreme Court has highlighted the importance of the third prong of Central Hudson, stating it “is critical; otherwise, ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden of commercial expression.’”{{25}}

No reasonable reading of the record in Swecker could lead to a view that section 5-20-40 directly and materially advances the Board’s substantial interest in preventing binge drinking by college students.  As the district court noted, no witness testified that section 5-20-40, which has been in effect for decades, has ever advanced or alleviated the problems of underage and binge drinking.{{26}}  The VBCB additionally provided no comparison to drinking behavior at universities without advertising bans.  VBCB’s expert witness, Dr. Henry Saffer, opined that bans on alcohol advertising are only effective when no substitute exists for the prohibited media.  Saffer testified that there are no media substitutes for the college newspapers because they uniquely target college students.{{27}}  The district court properly called Saffer’s statement “conjecture,” as any visit to a modern college dorm will reveal students saturated with a plethora of media platforms in the digital age.{{28}}

Thus, the evidence presented by the Board was at best “ineffective or remote” in furthering the interest of curbing underage and binge drinking.{{29}}  In effect, the Fourth Circuit failed to heed the Supreme Court’s warnings about regulations “in the service of other objectives that could not themselves justify a burden of commercial expression.”{{30}}  Because it has deemed the third-prong “critical,” the Supreme Court should have granted certiorari and reversed the Fourth Circuit.

But even if the Fourth Circuit’s analysis was correct under Central Hudson’s third prong, 5-20-40 fails the fourth prong of the Supreme Court’s test because it is “more extensive than is necessary to serve” the government’s interest of curbing underage drinking.  The Fourth Circuit, however, erroneously ruled that section 5-20-40 was sufficiently narrowly tailored to satisfy the fourth prong.  In support of its view, the court noted that the regulation is not a complete ban on alcohol advertising, as restaurants may still publicize they serve alcohol (but not brands and prices).  The Fourth Circuit also pointed out that the statute does not affect all publications available on college campuses.  The court additionally praised the Board for combining section 5-20-40 with education and enforcement programs.  The Fourth Circuit’s findings, however, are inconsistent with Supreme Court guidance on when a commercial speech law fails to adhere to the fourth prong’s requirements.

The Supreme Court has held that the fourth prong of the Central Hudson requires that the statute be “not more extensive than is necessary to serve” a state’s substantial interest.{{31}}  The regulation of speech must be a last, and “not first,” resort.  The fit between the legislature’s ends and means need not be “perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”{{32}}  Additionally, non-speech regulations “which could advance the Government’s asserted interest in a manner less intrusive to . . . First Amendment rights, indicates that [a commercial speech regulation] is more extensive than necessary.”{{33}}

The Fourth Circuit was incorrect in its decision that the regulation satisfied Central Hudson’s narrowly tailored requirement for two reasons: (1) section 5-20-40 is both under and over inclusive; and (2) the substantial interest of curbing underage and binge drinking can be addressed with regulations that do not infringe on speech.  Section 5-20-40 is over inclusive because it applies to both those under twenty-one and over twenty-one.  Both the Board and the college newspapers agreed that the majority of the readership of the college newspapers is over the age of twenty-one.{{34}}  The regulation is under inclusive because it only applies to college newspapers and not all media on campus.  Additionally, numerous non-speech regulations also could better serve the Board’s substantial interest.  Dr. Saffer, the Board’s expert witness, conceded that alcohol taxation and counter-advertising could reduce underage and bring drinking.  Dr. Saffer even stated “[i]ncreased taxation is more effective than advertising bans” in combating underage and binge drinking.{{35}}  Section 5-20-40 thus cannot survive Central Hudson’s narrowly tailored requirement.  The Supreme Court should use its next opportunity to better articulate its narrowly tailored rule to avoid future situations like the one in Swecker.

II.  The First Amendment and Regulations on a
Narrow Sector of the Media

In accessing a Pennsylvania law similar to Virginia’s section 5-20-40, then Third Circuit Judge Samuel Alito held the regulation to be an unconstitutional financial restriction on a narrow sector of the media.{{36}}  In forming his opinion, Alito looked to the holdings of three Supreme Court cases—Grosjean v. American Press Co.,{{37}} Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,{{38}} and Arkansas Writers’ Project, Inc. v. Ragland{{39}}—that found tax penalties on publications for crossing certain circulation thresholds or for publishing certain content to be unconstitutional.  Alito combined these holdings with the rule in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board—that all financial burdens, whether a tax or a regulation, on media organizations are evaluated in the same manner for the purposes of constitutional law—to find the restriction on alcohol advertising in college newspapers to be unconstitutional.{{40}}  Alito held that a content-based financial restriction in a narrow sector of the media to be presumptively unconstitutional and to be examined with strict scrutiny.{{41}}

Citing Pitt News, the college newspapers reiterated this argument, but the Fourth Circuit declined to address it.  Once again, the Fourth Circuit was in error.  One of the bedrock principles of the First Amendment is that the government cannot discriminate against different media properties based on their content alone.  As the Supreme Court has held, a law is presumptively unconstitutional if it “single[s] out the press” or “a small group of speakers.”{{42}}  The college newspapers lose approximately sixty-thousand dollars a year due to section 5-20-40.  Thus, Section 5-20-40 is unambiguously a financial content-based restriction.  Accordingly, the Fourth Circuit should have found section 5-20-40 to be facially unconstitutional because the Board did not present evidence that the regulation serves a compelling interest.

Conclusion

The Fourth Circuit ought to have found Section 5-20-40 to be facially unconstitutional because the record does not show it materially advances the Board’s  interest to curb underage and binge drinking; the statute is not narrowly tailored to serve this interest; and the statute places a financial burden on a narrow sector of the media.  The Fourth Circuit’s opinion represents a paternalistic court’s attempt to stealthy reduce the level of review of commercial regulations.  At its next opportunity, the Supreme Court should clarify that a state must show more than cursory evidence that a regulation materially and directly advances a state’s substantial interest.  Otherwise, a state can “with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden of commercial expression.”{{43}}

 


        *    Robert Samuel holds an AB from Duke University, a MSc from the London School of Economics, and a JD from Wake Forest University School of Law, where he was the Executive Forum Editor for the Wake Forest Law Review.  He would like to thank his parents, Bob and Julie Samuel, and his wife Mary Jordan Samuel for their loving support throughout law school and the writing of this piece.

[[1]]   See Princeton Review Names Best College Newspapers, College Media Matters (Aug. 3, 2010), http://collegemediamatters.com/2010/08/03/princeton-review-names-best-college-newspapers/.[[1]]

[[2]]   3 Va. Admin. Code § 5-20-40(A)(2) (2010).[[2]]

[[3]]  Educ. Media Co. at Va. Tech, Inc. v. Swecker, No. 3:06CV396, 2008 U.S. Dist. LEXIS 45590, at *3 (E.D. Va. Mar. 31, 2008) (quoting 3 Admin. Code § 5-20-40(B)(3)).[[3]]

[[4]]   See Educ. Media Co. at Va. Tech, Inc. Swecker, 602 F.3d 583, 587 (4th Cir. 2010), cert. denied, 131 S. Ct. 646 (2010).[[4]]

[[5]]   See id. at 586.[[5]]

[[6]]  Id. at 591.[[6]]

[[7]]   Educ. Media Co. at Va. Tech, Inc. v. Swecker, 131 S. Ct. 646 (2010).[[7]]

[[8]]   For example, one of the more recent Supreme Court opinions on the matter begins as follows:

Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, an opinion with respect to Parts III and V, in which Justice KENNEDY, Justice SOUTER, and Justice GINSBURG join, an opinion with respect to Part VI, in which Justice KENNEDY, Justice THOMAS, and Justice GINSBURG join, and an opinion with respect to Part IV, in which Justice KENNEDY and Justice GINSBURG join.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 488–89 (1996).[[8]]

[[9]]  Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).[[9]]

[[10]]   Id.[[10]]

[[11]]  Id. at 776.[[11]]

[[12]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980).[[12]]

[[13]]   Id.[[13]]

[[14]]   Id.[[14]]

[[15]]   Id. [[15]]

[[16]]   Id. [[16]]

[[17]]   Educ. Media Co. at Va. Tech, Inc. Swecker, 602 F.3d 583, 589 (4th Cir. 2010), (quoting W. Va. Ass’n of Club Owners and Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292, 303 (4th Cir. 2009)), cert. denied, 131 S. Ct. 646 (2010).[[17]]

[[18]]   Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (citation omitted)). [[18]]

[[19]]   Id. at 589–90 (Judge Shedd did not cite to any direct evidence for this finding). [[19]]

[[20]] Id. at 590.[[20]]

[[21]]   Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (“[W]e engage in ‘intermediate’ scrutiny of restrictions on commercial speech.”).[[21]]

[[22]]   Edenfield v. Fane, 507 U.S. 761, 770–71 (1993).[[22]]

[[23]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).[[23]]

[[24]]   Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001); see also Pitt News v. Pappert, 379 F.3d 96, 107 (3d Cir. 2004).[[24]]

[[25]]  Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995) (quoting Edenfield, 507 U.S. at 771); see also Pitt News, 379 F.3d at 107.[[25]]

[[26]]   Educ. Media Co. at Va. Tech, Inc. v. Swecker, No. 3:06CV396, 2008 U.S. Dist. LEXIS 45590, at *42 (E.D. Va. Mar. 31, 2008).[[26]]

[[27]]   Id. at *40.[[27]]

[[28]]   Id. at *46.[[28]]

[[29]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).[[29]]

[[30]]   Edenfield, 507 U.S. at 771.[[30]]

[[31]]    Cent. Hudson, 447 U.S. at 566. [[31]]

[[32]]   Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) (internal quotations omitted). [[32]]

[[33]]    Rubin v. Coors Brewing Co., 514 U.S. 476, 491 (1995); see also First Amendment—Commercial Speech—Fourth Circuit Holds That A Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional.—Educational Media Co. at Virginia Tech v. Swecker, 602 F.3d 583, 124 Harv. L. Rev. 843, 847 (2011); Michael Hoefges, Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8 Comm. L. & Pol’y 267, 308 (2003). [[33]]

[[34]]    Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 587 n.1 (4th Cir. 2010), cert. denied, 131 S. Ct. 646 (2010). [[34]]

[[35]]    Id. at 596 n.8. [[35]]

[[36]]    Pitt News v. Pappert, 379 F.3d 96, 111 (3d Cir. 2004). [[36]]

[[37]]    297 U.S. 233 (1936). [[37]]

[[38]]   460 U.S. 575 (1983). [[38]]

[[39]]    481 U.S. 221 (1987). [[39]]

[[40]]    Pitt News, 379 F.3d at 111–12. [[40]]

[[41]]   Id. at 110–11.[[41]]

[[42]]   Leathers v. Medlock, 499 U.S. 439, 447 (1991); see also Pitt News, 379 F.3d at 111.[[42]]

[[43]]   Edenfield v. Fane, 507 U.S. 761, 771 (1993).[[43]]

By Francisco M. Negrón, Jr.

Ask anyone to talk about bullying and schools and he or she will inevitably mention the Internet as a root cause.  The conversation is sure to include talk of perpetrators, victims, and what schools need to do to keep children safe.  This conversation is legitimate and understandable.  Indeed, ensuring safe environments for all students has long been a part of the public school mission.  But, the conversation frequently lacks an appreciation for the challenges associated with the competing constitutional tensions sometimes at play in cases of bullying.

It has been over four decades since the Supreme Court ruled in Tinker v. Des Moines that students do not leave their constitutional free speech rights at the school house gate simply because their views are unpopular and anti-majoritarian.{{1}}  (And, school districts may discipline students within the limitations of the First Amendment for on-campus, non-school sponsored speech if it collides with “the rights of other students to be secure and to be let alone;”{{2}} if the speech is “sexually explicit, indecent, or lewd;”{{3}} or if it “can reasonably be regarded as encouraging illegal drug use.”{{4}})  In more recent years, other jurists have weighed in even more pointedly to define exactly what we might understand to be unpopular or anti-majoritarian views.  While on the 3rd Circuit Court of Appeals, for instance, then Judge Alito wrote that even harassing speech in a school setting (or elsewhere) is not categorically denied First Amendment protection.{{5}}

The stage is thus set.  The challenge for schools is regulating speech that may contribute to a hostile environment, such as the kind of harassing speech referenced by Justice Alito, without overstepping constitutional bounds.  Public schools have long understood that students need safe environments in which to learn.  And, in recent years the federal government has attempted to mandate the elimination of hostile environments through its enforcement powers.  In October 2010, for instance, the U.S. Department of Education issued a much publicized missive to schools in which it noted that many cases of bullying may involve harassment prohibited by federal civil rights laws.  It decreed schools should eliminate harassment—and the hostile environment it creates—and to prevent it from reoccurring.{{6}}

But, one person’s harassment may be another’s sincerely held belief.  And, when a sincerely held belief is at play, the First Amendment scales tip against regulation, absent some other indicators that the speech will be disruptive or infringes on the rights of others.  Phrases on t-shirts, such as “Homosexuality is a Sin” followed by a Bible verse or “I Believe in Traditional Marriage,” may be just such expressions.  And, even if some phrases lack religious or political import on their face, courts suggest they may not be banned without more.{{7}}  School officials regulating this type of speech without any indicators of disruption or an infringement on the rights of others may subject themselves and their school districts to legal challenges.  On the other hand, if they allow the speech, particularly in a setting where, for instance, anti-gay discrimination has been an issue, federal guidance suggests the district may be allowing a hostile environment to continue.  And, because federal enforcement guidance demands schools eliminate harassment whether school officials had actual knowledge it was occurring, inadvertence is not likely to make much of a defense.

For public schools the quandary is a big one: Regulate potentially harassing messages expressing sincerely held religious or political beliefs and risk a private suit and its attendant cost and attorneys’ fees for violating a student’s constitutional rights, or risk federal enforcement action that threatens their federal funding for contributing to a hostile environment?

The matter is further complicated by the ubiquitous electronic forum to which students have broad access.  Bullying and harassment at times takes place over the Internet or through other electronic communication and occurs entirely off-campus.{{8}}  Disciplining students for speech is even more difficult when the speech occurs off-campus.  Significantly, none of the Supreme Court cases discussing disciplining students for speech contemplate whether school districts can discipline students for off-campus speech.  And, in the brave new world of social networking, linking speech that occurs in cyber space to disruption in school poses factual problems not contemplated by the Tinker court of yesteryear.  Unfortunately, to date the federal courts have provided little consistent guidance that helps schools determine the line dividing harassing speech and student free speech, particularly in cyberspace.  Only one federal circuit to date has definitely ruled whether and when a school district may discipline students for off-campus, Internet speech.{{9}}  And, the High Court’s recent denial of certiorari in some student cyber-speech cases suggests the Supreme Court is not yet ready to resolve existing circuit conflicts.{{10}}  Until then, schools will have little choice but to navigate carefully the dangerous waters between Scylla and Charybdis.


*  General Counsel, National School Boards Association.  Portions of this Essay have been adapted from a position statement for the U.S. Commission on Civil Rights Briefing on Inter-Student Violence, available athttp://www.eusccr.com/24.%20Francisco%20Negron,%20National%20School%20Boards%20Association.pdf. *[[1]]   393 U.S. 503, 514 (1969).[[1]]

[[2]]   Id. at 508.[[2]]

[[3]]   Bethel Sch. Dist. No. 403 v. Fraser478 U.S. 675, 684 (1986).[[3]]

[[4]]   Morse v. Frederick, 551 U.S. 393, 397 (2007).[[4]]

[[5]]   Saxe v. State College Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) (holding that a school district’s anti-harassment policy was unconstitutionally overbroad).[[5]]

[[6]]   “A school’s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur.”  Letter from Russlynn Ali, U.S. Dep’t. of Educ. Assistant Secretary for Civil Rights, to Colleagues: Harassment and Bullying, at 3–4 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr
/letters/colleague-201010.pdf.  “If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.”  Id. at 2–3.[[6]]

[[7]]   See Saxesupra note 5; see also Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874, 878–79 (7th Cir. 2011) (reaffirming a panel decision granting summary judgment for a permanent injunction prohibiting school district from banning students from wearing “Be Happy, Not Gay” t-shirt).[[7]]

[[8]]   Research by Amanda Lenhart at the Pew Research Center’s Internet & American Life Project indicates that most teens think bullying and harassment happens more offline than online.  See Amanda Lenhart, Cyberbullying 2010: What the Research Tells Us, Pew Internet (May 6, 2010), http://www.pewinternet.org/Presentations/2010/May/Cyberbullying-2010.aspx (select slide 14/29).[[8]]

[[9]]   See Wisniewski v. Bd. of Ed. of the Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007) (applying Tinker’s substantial disruption test to off-campus speech that was “reasonably foreseeable” to come on-campus).  See also Kowalski v. Berkeley County Sch., 652 F.3d 565, 573 (4th Cir. 2011) (relying on the “nexus” of the student’s speech to the school), cert. denied, 132 S.Ct. 1095 (Jan. 17, 2012); J.S. ex rel Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 931 (3d Cir. 2011) (applying Tinker to find that the school district failed to demonstrate reasonable forecast of substantial disruption), cert. denied, 132 S.Ct. 1097 (Jan. 17, 2012); Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 214–215 (3d Cir. 2011) (finding that school had not shown sufficient nexus between online speech and the school), cert. denied, 132 S.Ct. 1097 (Jan. 17, 2012).[[9]]

[[10]]   See cases cited supra note 9.[[10]]

By: David Crump*

A prankster sets up a projector and shines images of swastikas onto the side of a synagogue as worshippers enter.  A vandal extinguishes the eternal flame that marks the grave of President John F. Kennedy.  A computer hacker attacks an online memorial dedicated by a grieving family to its recently deceased teenage son by superimposing pornography all over the website.  Each of these situations is similar to an event that actually has occurred or has been hypothesized by a Supreme Court Justice.[1]

And then there are behaviors that seem similar to the above events, but raise other issues.  A group of people who hate the military carries signs displaying homophobic slurs near the funeral of a soldier killed in combat.  A rogue publisher prints a cartoon that depicts a clergyman having an affair with his mother in an outhouse, and the publisher later testifies that he intended to hurt the clergyman through his tasteless publication.  These, too, are situations that have actually occurred and the Supreme Court has written about.[2]

These are examples of behaviors that I call desecration.  Desecration includes utterances that most people would find of little value, although this characteristic alone does not keep them from qualifying as protected speech.[3]  But the above situations involve more than mere tastelessness or offensiveness.  The behaviors in the given examples cause actual harm.[4]  Furthermore, that harm sometimes includes suppression of speech initiated by others.  The problem remains, however, that in some cases the speech or behavior involves a glimmer of expression on a subject of public interest; a weak association with protected speech accompanies the harm.[5]  The courts have experienced considerable difficulty in separating protected speech from unprotected desecration.[6]

Unfortunately, none of the Supreme Court’s opinions provide clear direction for resolving this problem.  Snyder v. Phelps,[7] the case involving a homophobic demonstration near a soldier’s funeral, is the Court’s most recent pronouncement relevant to this issue.  But in Snyder, the Court declined to address whether there is a type of speech that is unprotected as desecration, saying only that “there [was] ‘no suggestion that the speech at issue fell within one of the categorical exclusions from First Amendment protection.’”[8]  Additionally, because the Court treated the particular demonstration at issue as protected, the Snyder opinion naturally occupies itself with extending the freedom of expression, rather than with defining the types of speech that are not protected by the First Amendment.  Thus, although the Supreme Court’s decisions, including Snyder, certainly provide clues about the inquiry pursued in this Article, the Court’s decisions just as certainly leave the question unanswered.

One way to approach this lingering problem is through the formula that the Supreme Court generated in Chaplinsky v. New Hampshire.[9]  In Chaplinsky, the Court recognized that there are unprotected categories of utterances, or what might be called “speech that is not speech,” and the Court used this concept to allow the prohibition of “fighting words.”[10]  The two defining characteristics of unprotected utterances, said the Court, are first, that they “are [not an] essential part of the exposition of ideas,” and second, that they “are of such slight social value as a step to truth” that any positive aspect the utterances might have is “clearly outweighed by the social interest in order and morality.”[11]  The Chaplinsky test offers the prospect of minimizing severely harmful utterances while maintaining the protection of speech.  Since Chaplinsky, the Court has used this general approach to define other categories of unprotected utterances, from child pornography to defamation.[12]

This Article begins by describing the Chaplinsky formula.  It then considers an important proposition that is implicit in Chaplinsky: the notion that there are hierarchies of speech, with some types of expression accorded a higher status  than others.  The Article then proceeds to its real work: the adaptation of the Chaplinsky formula to utterances that desecrate the symbolic expression of others.  There is a special impediment to this adaptation, since some valuable utterances include ridicule, sarcasm, and devaluation of the speech of others.  Here, the Article introduces the concept that the unifying factor in the upper hierarchies of speech is its quality of discourse about public issues, or the degree to which the speech seeks to conduct dialogue on matters of public concern.  A type of utterance that does not have this characteristic, and which seeks only to destroy the expression of others as a matter of personal, invidious pique, is of low speech value, and, if it causes serious harm to others’ freedom of expression, my thesis is that it can be subjected to a test that may treat it as unprotected desecration.

The Article then seeks to apply this concept to various expressive acts that seem to have speech value and to compare these to messages that might better be treated as unprotected desecration.  A final Part sets out my conclusion: that the Chaplinsky formula may serve to identify a category of desecration that can be treated as unprotected.

I.  The Chaplinsky Formula

A.            Balancing to Create Categories, but Not in Individual Cases

In Chaplinsky, the defendant addressed a city official as a “racketeer” and a “damned Fascist.”[13]  He was convicted under a city ordinance that made it a crime to direct any “offensive, derisive, or annoying word” to another person in a public place.[14]  The lower court had interpreted the ordinance narrowly, so that it applied only when the words had “a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”[15]  The Supreme Court began by observing that there are “certain well-defined and narrowly limited classes of speech” that are unprotected.[16]  The Court went on to provide examples: obscenity, libel, and “insulting or ‘fighting’ words.”[17]  It was in this context that the Court set out the Chaplinsky formula for recognizing unprotected utterances: “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[18]

Several characteristics of this reasoning deserve emphasis.  First, this approach does not depend on the value of any particular expression.  It instead depends upon whether the expression falls into a category of unprotected utterances.  The Court quoted the lower court with approval: the categorization of the speech is “not to be defined in terms of what a particular addressee thinks. . . . [t]he test is what [people] of common intelligence would understand” the words to mean.[19]  Second, the categories are “narrowly limited.”[20]  These two features of the Chaplinsky approach prevent the denial of speech protection from censoring unpopular expression.

Third, the unprotected categories must be “well-defined.”[21]  This aspect of Chaplinsky means that the denial of protection must be readily recognizable, so that speakers will not fear transgressing an amorphous boundary and, perhaps more importantly, so that public authorities will not retain discretion to silence unpopular speech.  Fourth, there is a balancing approach behind the definition of unprotected categories,[22] but it is unevenly weighted.  Under this approach, protection is denied only when the speech value is “clearly outweighed” by the harm the utterance causes.[23]

Since deciding Chaplinsky, the Supreme Court has defined other types of unprotected utterances.[24]  The Court has expressed its reasons in differing language and has not relied uniformly upon Chaplinsky, but its analysis has usually depended upon unevenly weighted balancing similar to that in Chaplinsky.  For example, in upholding a prohibition on the promotion of sexual performances by children, the Court characterized the value of the expression as “exceedingly modest, if not de minimis,” and recognized that the interest of the state in preventing harm to children “clearly” outweighed this minimal value.[25]  Likewise, in upholding a prohibition on dangerous crowds immediately near embassies, the Court observed that the “congregation clause” did not “reach a substantial amount of constitutionally protected conduct” and emphasized the special national interest in protecting diplomats.[26]  Even when they have protected the expression at issue, the Justices have often used the Chaplinsky test as a means of distinguishing the expression from unprotected utterances.[27]

Is it possible that the Chaplinsky approach can distinguish offensive expression that has a measure of speech value from a defined category of unprotected desecration?  The test would need to be well defined and narrowly limited, as was the Court’s approach in Chaplinsky.  In addition, it would have to provide an unevenly weighted balancing scale and depend upon a categorical definition unrelated to any particular utterance.

B.            The Hierarchy of Speech Values

It is impossible to reconcile the Supreme Court’s decisions without recognizing a hierarchy of speech values.  Indeed, perhaps it is impossible to devise a workable system at all without providing different levels of speech protection.  Political speech, or speech upon issues of public interest, is at the top of the hierarchy.  For example, the protection of government employees when they engage in expression is defined partly by the degree to which their utterances cover “matters of public concern.”[28]  More recently, the Court borrowed this “matters of public concern” standard to use in Snyder, as part of its evaluation of the tort claims against the homophobic picketers—what I would call desecration claims.[29]  There is good reason to value political speech highly, because the definition and protection of all rights, including speech itself, depend upon an electoral system that functions through political expression.

Close behind political speech in the hierarchy are various types of expression that inform the individual’s exercise of the highest speech functions.  One cannot understand the Federal Reserve System without knowing something of economics, for example; and at a more general level, one cannot understand society without having experienced some works of literature.  The Supreme Court’s holdings include protection of informative speech, although sometimes in more limited ways than political speech.[30]

The Court has been explicit in affording lesser protection to some other speech categories.  Commercial speech, for example, can be circumscribed in ways that never would be tolerated with political speech.[31]  The same is true of indecent speech.[32]  Probably the lowest level of speech is that which is engaged in solely for the enjoyment or self-indulgence of the speaker or listener.[33]  Thus, the expression at issue in Chaplinsky, like the expression in the child-sexual-performance case, received only the lowest level of protection.[34]  Still, there is protection of expression even for some kinds of self-indulgent activities.  The courts have protected violent video games, for example, even though the video games do not serve to advance any debate (except, perhaps, debate about whether their distribution should be limited).[35]

If some types of desecration are to be unprotected, then, they must be confined to expression that contains only “exceedingly modest” contributions to information or debate on public issues.[36]  Speech is discourse; this is the key to the Supreme Court’s hierarchy of speech values.[37]  If an identifiable category of utterance forms “no essential part of any exposition of ideas, and [is] of . . . slight social value as a step to truth,”[38] it may fall outside the spectrum of protectable discourse.  If, like “[r]esort to epithets or personal abuse,”[39] the utterance does not “in any proper sense [communicate] information or opinion,”[40] the Chaplinsky formula suggests that the expression can be examined to determine whether its value is “clearly outweighed”[41] by the harm it causes.  Some forms of desecration, arguably, are crude attempts at discourse and must be protected, even if they are also offensive.

On the other hand, perhaps there are types of desecration that fit a narrowly defined category of unprotected utterances.  In fact, the Supreme Court stated in Snyder v. Phelps that “not all speech is of equal First Amendment importance.”[42]  The Court suggested that utterances of a private character, not touching upon “matter[s] of public interest,” could properly be subjected to suits for liability and damages.[43]  The Court added, however, that there was “no suggestion that the speech at issue [in Snyder] falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’”[44]  This reservation of the issue is why the question raised by this Article remains unresolved.

C.            The Contrary Position of the Absolutists

The argument that there must be levels of speech value is opposed by the claim that speech protection should be absolute.  The most prominent exponent of the absolutist position is probably Justice Hugo Black.  In his opinion in Brandenburg v. Ohio,[45] for example, he rejects the balancing approach contained in the clear and present danger test.  Justice Black consistently refused to assess the value of any particular utterance.[46]  Instead, he compared speech, which he saw as absolutely protected, with conduct, which he believed was not.[47]

But Justice Black was not really an absolutist.  He balanced, even though he did it in an indirect way, by characterizing as “conduct” the utterances he considered unprotected.  In Cohen v. California, for example, he joined an opinion that would have treated an offensive expression as unprotected because it “was mainly conduct and little speech.”[48]  This kind of balancing is dubious because it compares speech with something that has little to do with its potential for discourse or with its resulting harm.

In any event, some kind of balancing is necessary.  Otherwise, the First Amendment would license solicitations of murder, bomb threats, and fraudulent advertising.  Thus, there may be a category of desecration that has negligible speech value.

D.                        “Anti-Speech”: Utterances That Not Only Are Not Speech, but That Actually Impair the Freedom of Expression

The thesis of this Article, then, is that a narrow category of utterances that includes desecration is unprotected by the First Amendment, partly because the category is, in a way of speaking, “anti-speech.”  The issue was not analyzed in Snyder v. Phelps, apparently because the Court credited the lower court’s finding that there was “no suggestion that the speech . . . falls within one of the categorical exclusions from First Amendment protection.”[49]  The category would not have applied in Snyder anyway, because the Court pronounced the speech there protected by the First Amendment.[50]

But, some types of desecration consist not only of matters that implicate little in the way of First Amendment values, but also, those that do the opposite.  They actually impair First Amendment values.  The phenomenon of utterances that impair the freedom of speech is not unfamiliar, but it is also not much noticed.  If an airwaves pirate broadcasts a blank signal over a licensed radio frequency, for example, the resulting interference not only does not advance discourse, it, in fact, cancels it.  Pranksters who shout down a speaker likewise do not advance discourse very much, but they may succeed in preventing people who wish to receive information from getting it.  In these situations, the utterances in question not only are not speech, but they cause actual harm.  This harm is not just to people’s sensibilities, but to the freedom of speech itself.  Sometimes there is a message lurking behind the interference with speech, in the form of an implied statement that “I disagree with the speaker,” but other times there is no such message.

Real-world situations show that desecration sometimes impairs freedom of speech.  Recall the example of pornographic desecration of online memorials, which is said to be a “growing” problem.[51]  A bereaved survivor might think that the most effective way to communicate with a large group of friends or relatives would be through a website dedicated to her lost loved one, but, apparently, the survivor runs the risk that a cybertroll will desecrate her site.[52]  The result is an impairment of her freedom of expression.  Her memorial may even implicate matters of public concern if, for example, the decedent fought a terminal disease, contributed to society in a notable way, died in combat, or lived a life that would inform public debate in any of countless ways.  Pornography pasted over the site disrupts all of these messages, and potential readers are unable to receive her message, because, even if the words and images of the original post are visible, readers are overwhelmed by the pasted images, and it becomes difficult for any viewer to absorb the original message of the site.

In conclusion, the concern for freedom of speech is wasted, and indeed it is backward, if it allows this kind of desecration to censor discourse.  The same conclusion follows, with greater or lesser completeness, in the cases of the prankster who puts out the eternal flame and the bigot who projects anti-Semitic messages on a temple.  The tricky aspect of this proposition, however, is that harm to sensibilities, even if obvious and serious, does not overcome the freedom of speech of those who send out unpleasant messages that actually are a part of discourse.  And the Supreme Court’s decisions protect even those messages that are clumsily or offensively delivered.

II.  Adapting the Chaplinsky Formula to Analyze Desecration

A.            The Simplistic Application

A simplistic approach would characterize acts of desecration as generally unprotected.  That is, if the utterance is highly offensive and causes significant harm in the form of pain inflicted on another person as a response to that person’s speech, the unsophisticated approach would allow the harmful speech to be prohibited.  This approach would inadequately protect the freedom of expression.  As the Supreme Court has put it, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”[53]

Some courts have followed the simplistic approach.  Hustler Magazine, Inc. v. Falwell,[54] for example, involved a tasteless, offensive political cartoon and fictional story.  The publication fantasized that a well-known clergyman had engaged in incestuous acts in an improbable and disgusting setting.[55]  But the Supreme Court pointed out that the cartoon was parody, and it implicitly editorialized against the moral views of the clergyman.[56]  The intermediate court nevertheless had affirmed a judgment for intentional infliction of emotional distress by stressing the pain inflicted upon the clergyman and by pointing out that the harm was intentional.[57]  The Supreme Court reversed and linked the expression to political cartoons generally, which are often exaggerated.[58]  Although the Court recognized that this particular effort was inferior to most political cartoons—a “poor relation,” as the Court put it—it held that the category of utterances to which it belonged was protected.[59]

At the same time, the Court in Hustler Magazine recognized that infliction of emotional distress could properly create liability in “most if not all jurisdictions.”[60]  The Court’s approval of this kind of liability must have depended upon the relative absence of speech value in utterances triggering the liability.  This reasoning reinforces the conclusion that some kinds of desecration may be unprotected as well.

B.            Speech as Discourse: A Method for Making the Distinction

One key factor in proper application of the claim for intentional infliction of emotional distress, then, is the absence of a potential for discourse.  For example, “continuous, deliberate, degrading treatment of another” in a private setting, even if characterized as a series of “pranks,” does not invite meaningful discourse, and this is the prototype of the intentional infliction claim.[61]  Similarly, some of the examples given at the beginning of this Article are devoid of any meaningful potential for discourse: extinguishing the flame at President Kennedy’s grave, pasting pornography over a memorial, or broadcasting swastikas onto a place of worship.

On the other hand, a potential for discourse in the category of expression at issue distinguishes the utterances at the beginning of this Article that involve protected speech even if they cause pain to others.  The Supreme Court points out that a political cartoon is a part of discourse, even if it is exaggerated and fictional, and it is for this reason that even a crude effort such as that in Hustler Magazine can qualify as protected speech.[62]  Similarly, a demonstration that denounces the military invites discourse, and the Court held in Snyder v. Phelps that this category includes even crude, offensive messages.[63]

III.  Applying the Adapted Chaplinsky Formula to Acts of Desecration

With this background, one can hypothesize a test for analyzing acts of desecration to determine whether they should be protected or unprotected.  The effort begins with the Chaplinsky formula and its use in other cases that have recognized categories of unprotected utterances.  An utterance of desecration, it might be asserted, may be unprotected if it fits into a category characterized by exceedingly modest or de minimis value as speech and if it predictably causes significant harm, including interference with the protected expression of others.

But this formulation is too general.  Its application would depend too much on case-by-case evaluation of particular utterances, and, therefore, the formula would be vulnerable to misuse.  It might deny protection to unpopular expression.  Instead, a viable test would depend upon factors of more neutral application.

Again, the idea of public discourse is useful.  The test might instead be phrased as depending upon whether the utterance has an element that is a part of discourse on a matter of public concern.  The “public concern” feature is borrowed from Snyder v. Phelps[64] (which borrowed it from prior cases of different categories), and it expresses the possibility that expression centered on public issues is more likely to have real speech value, even if the utterance is crude, than private expressions of spite would have.[65]  The other ingredient is a finding that the utterance has potential for harm, including suppression of protected expression by others, that “clearly outweigh[s]” any value the utterance might have as a part of public discourse.[66]  If desecration is to include an unprotected category, it should be defined so as to require proof of impairment of the exercise of the freedom of speech by another, since this is the core harm caused by desecration.  By putting the elements together, one can hypothesize that there may be a category of unprotected expression that consists of desecration, defined as interference with the sacred or highly valued expression of another, limited so that it covers utterances with only de minimis value as a part of discourse on any matter of public concern, and also with potential for harm to others, including the freedom of speech of others, that clearly outweighs any slight value it may be asserted as having.

One potential problem with this proposal is the allegation that “the boundaries of the public concern test are not well defined.”[67]  One can find evidence to support this allegation in such cases as Rankin v. McPherson,[68] where the Court split five to four in deciding whether the utterance at issue was protected speech.  On the other hand, the public concern distinction was meaningful enough for the Court to approve it in Snyder.[69]  Moreover, it is used in other areas to distinguish protected speech, including areas that generate many court opinions, which should help to define the concept.[70]  Still, a court probably should err on the side of caution in declaring that an utterance does not implicate a matter of public concern.

Conclusion

The suggested formula would deny protection to genuinely valueless acts of desecration.  It can be applied successfully, for example, to the act of pasting pornographic images on an Internet memorial.  This conduct interferes with sacred or highly valued speech of others.  But what is perhaps more important, the conduct meets the other criteria hypothesized here.  That type of desecration communicates little that is part of discourse on a matter of public concern; in fact, it communicates nothing in and of itself.  It does not tell a viewer whether it is motivated by a dislike of online memorials, or by hatred toward the deceased individual, or by a desire to distribute pornography, or by a wish simply for amusement derived from a cruel prank.  This kind of desecration also would carry a high potential for harm—including not only serious psychological harm to those who might appreciate the memorial but also suppression of the speech in which they are engaged.

The same test would deny speech protection to desecration in the forms of extinguishment of the eternal flame and swastikas projected onto the synagogue.  And yet, the proposed test can differentiate the kinds of utterances that the Supreme Court has held are protected.  It extends the protection of the First Amendment to expressions such as the cartoon and story in Hustler Magazine and the demonstration in Snyder against the military near a soldier’s funeral.  Although these utterances are crude and unlikely to persuade others, the Supreme Court would say that they are not in a category that is unrelated to discourse on matters of public concern.

The dividing line depends on context, and it also depends upon the meaning of the words used.  It is not fail-safe.  But, then, neither are other definitions of unprotected utterances.  For example, fighting words of the kind deemed unprotected by Chaplinsky can be identified only by context and meaning.  One can easily imagine situations raising complex fact issues.  Were the parties sufficiently face-to-face and in close proximity, and were the words really directed at a particular individual?  Did the meaning of the particular expression amount, in fact, to fighting words?  The distinction suggested here between speech and unprotected desecration is no more vulnerable to misuse than the approach in Chaplinsky.  Perhaps it can provide a means of protecting speech while minimizing the harm caused by acts of desecration.

 


* A.B. Harvard College; J.D. University of Texas School of Law.  John B. Neibel Professor of Law, University of Houston Law Center.  The author gratefully acknowledges the advice of Professor Eugene Volokh about the subject of this Article, with the usual disclaimer that any deficiencies are the responsibility of the author alone.

[1]. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616 (1987) (addressing anti-Semitic phrases and symbols created with paint, hypothesized here instead as light projection to avoid confusion with vandalism; desecration claim upheld on other grounds); Texas v. Johnson, 491 U.S. 397, 439 n.* (1989) (Stevens, J., dissenting) (addressing eternal flame facts; this Justice would presumably approve a desecration claim); Peggy O’Hare, Cybertrolls’ Attacks on Web Add to Mourners’ Pain, Hous. Chron., Nov. 7, 2010, at 1A (recognizing that desecration of online memorials is a “growing . . . occurrence” that “happens on memorial pages all over the world”).

[2]. Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011) (addressing a father’s tort law claims against picketers of his son’s funeral and ultimately finding in favor of the homophobic demonstrators); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48, 56–57 (1988) (addressing the content of a cartoon and finding that clergyman may not prevail on his claim against publisher).

[3]. Snyder, 131 S. Ct. at 1220; Hustler, 485 U.S. at 56.

[4]. In Snyder, the Court described the conduct at issue as “certainly hurtful” and acknowledged that “its contribution to public discourse may be negligible.” 131 S. Ct. at 1220.

[5]. Id. (stating that the message at issue “addressed matters of public import”).

[6]. One example of courts’ difficulty is found in Hustler, 485 U.S. at 878, 883, in which the Supreme Court reversed the lower court, which had upheld the clergyman’s tort claim against the publisher.

[7]. 131 S. Ct. 1207.

[8]. Id. at 1215 n.3.

[9]. 315 U.S. 568 (1942).

[10]. Id. at 571–72.

[11]. Id. at 572.

[12]. E.g., New York v. Ferber, 458 U.S. 747, 764 (1982) (“There are . . . limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment.”); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (determining that liability for defamatory falsehood relating to official conduct requires proof of actual malice or reckless disregard of falsity).

[13]. Chaplinsky, 315 U.S. at 569.

[14]. Id.

[15]. Id. at 573.

[16]. Id. at 571–72.

[17]. Id. at 572.

[18]. Id.

[19]. Id. at 573.

[20]. Id. at 571.

[21]. Id.

[22]. See id. at 572.

[23]. Id.

[24]. See Rodney A. Smolla, Words “Which By Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 Pepp. L. Rev. 317, 319–20 (2009).

[25]. New York v. Ferber, 458 U.S. 747, 747–48 (1982).

[26]. Boos v. Barry, 485 U.S. 312, 313, 323–24 (1988).

[27]. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 399 (1992) (White, J., concurring) (citing Chaplinsky, 315 U.S. at 571–72); Cohen v. California, 403 U.S. 15, 20 (1971) (citing Chaplinsky, 315 U.S. at 573).

[28]. Rankin v. McPherson, 483 U.S. 378, 384 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

[29]. See Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011).

[30]. For example, in FCC v. Pacifica Foundation, the Court upheld the FCC’s determination that a certain comedic monologue was offensive enough to be prohibited as “indecency” under the Communications Act, even though the monologue was informative about the use of (dirty) language. 438 U.S. 726, 739 (1978).  In Cohen v. California, however, the Court treated an offensive political message as protected speech. 403 U.S. at 26.

[31]. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 597–98 (1980) (Rehnquist, J., dissenting).

[32]. R.A.V., 505 U.S. at 427.

[33]. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504 (1984) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

[34]. The speech in question was “no essential part of any exposition of ideas,” said the Court, and therefore one can infer that if it had any value, the value was confined to self-indulgent expression.  Chaplinsky, 315 U.S. at 572.

[35]. E.g., Entm’t Software Ass’n v. Swanson, 519 F.3d 768, 772 (8th Cir. 2008) (striking down prohibition of violent video games without finding in them any value on matters of public concern).

[36]. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 250–51 (2002) (quoting New York v. Ferber, 458 U.S. 747, 762 (1982) and reasoning that the Ferber Court held that child pornography was not protected under the First Amendment because of how the pornography was made, not because of the content of the speech).

[37]. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1215–16 (2011) (suggesting that higher forms of First Amendment protection are centered on “meaningful dialogue” and discourse).

[38]. Chaplinsky, 315 U.S. at 572.

[39]. Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 309–10 (1940)).

[40]. Id.

[41]. Id.

[42]. Snyder, 131 S. Ct. at 1215 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50–51 (1988)) (internal quotation marks omitted).

[43]. Id. at 1215–16.

[44]. Id. at 1215 n.3.

[45]. Brandenburg v. Ohio, 395 U.S. 444, 449–50 (1969) (Black, J., concurring).

[46]. See, e.g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 57 (1971) (Black, J., concurring) (“First Amendment protection extends to ‘all discussion and communication involving matters of public or general concern.’” (emphasis added) (citation omitted)); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 293–97 (1964) (Black, J., concurring) (explaining that “at the very least” the First Amendment means that a State cannot impose civil libel laws to punish discussion of public affairs or critiques of public officials).

[47]. See, e.g., Cox v. Louisiana, 379 U.S. 559, 577–81 (1965) (Black, J., concurring in No. 24 and dissenting in No. 49) (distinguishing speech, which is never constitutionally regulated, from marching and patrolling, which can be regulated as long as the State’s interest in suppressing the conduct outweighs the individual’s interest in engaging in the conduct); NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 76–80 (1964) (Black, J., concurring) (distinguishing permissible restriction of the “patrolling” aspect of picketing from the impermissible restriction of the “speech” involved in picketing).

[48]. Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting).

[49]. Snyder, 131 S. Ct. at 1215 n.3.

[50]. Id. at 1219–20.

[51]. O’Hare, supra note 1.

[52]. See generally id.

[53]. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).

[54]. 485 U.S. 46, 48 (1988).

[55]. Id.

[56]. Id. at 48, 54–55.

[57]. The Fourth Circuit’s opinion quoted a series of answers by Larry Flynt, a principal in Hustler Magazine, confirming his intention to hurt Reverend Falwell and, indeed, to “assassinate” his reputation.  Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986).  It also quotes the Reverend Falwell’s testimony about the “deep hurt” he understandably experienced.  Id. at 1276.

[58]. Hustler Magazine, 485 U.S. at 53.

[59]. Id. at 54–57.

[60]. Id. at 53.

[61]. See Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 947 (6th Cir. 2000) (analyzing a series of actions that met this description and finding that plaintiffs could proceed to trial with their claims of intentional infliction of emotional distress).

[62]. See Hustler Magazine, 485 U.S. at 53–55.

[63]. See Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011).

[64]. Id. at 1215–16 (citing cases involving defamation and statements by public employees, and allowing particular utterances to be afforded less protection as speech if not made about “matter[s] of public concern,” but only about private matters).  Snyder, however, did not recognize the nonspeech category proposed here for desecration, and hence it supports the thesis of this Article only indirectly.

[65]. Id. at 1215.

[66]. See id. at 1223 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

[67]. Id. at 1216 (quoting City of San Diego v. Roe, 543 U.S. 77, 83 (2004)).

[68]. 483 U.S. 378, 379–80, 386–87 (1987).

[69]. Snyder, 131 S. Ct. at 1217–18.

[70]. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (using the public concern test in the area of political speech to find speech was protected).

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