Category Archives: 1st Amendment

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest Citizens from Video Recording Under the Qualified Immunity Doctrine

Lights, Camera, Arrest!: Police Officers’ Ability to Stop and Arrest

Citizens from Video Recording Under the Qualified Immunity Doctrine

By: Clay Comley

             As the 1st Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1] While the range of rights protected by the First Amendment is anything but a straightforward list governed by a bright-line rule, the 1st Amendment is generally understood as protecting two classes of rights: Freedom of religion rights under the Establishment and Free Exercise clauses and freedom of speech rights under the freedom of expression clause.[2] Furthermore, the Freedom of Expression clause encompasses numerous types of citizens’ rights including freedom to express oneself without government interference and freedom to peacefully assemble.[3] However, the component of the First Amendment at issue in this paper is the freedom of press. Despite this right’s title, the Supreme Court has recognized that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information . . .” available to the public.[4] In other words, the protections afforded to the freedom of press through the First Amendment do not give members of the press or media any special rights over ordinary citizens.[5] The First Amendment allows all citizens to record matters of public interest and express themselves through dissemination of this information.[6] Because case law clearly indicates that the Freedom of Press protects ordinary citizens from gathering information “from any source by means within the law,” courts have reasoned that the filming of public officials engaged in their duties in public spaces is a protected facet of freedom of press.[7] However, because public officials deal with varying situations in their official capacities, courts have also reasoned that such officials must be allowed some immunity against claims from members of the public.[8]

As a result of countless claims against public officials acting in their official capacity, courts created the legal doctrine of Qualified Immunity to protect these individuals from personal liability.[9] Instead of sending officials out into the public with no sense of what they could be held liable for, Qualified Immunity seeks to provide these officials with the ability to reasonably anticipate when actions will open them up to personal legal liability.[10] As a result, in theory, if a public official acts in a way reasonably believed to be lawful, they are shielded from liability for that action.[11]

Under the Qualified Immunity doctrine, governmental actors performing discretionary functions are entitled to Qualified Immunity from suits as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[12] Thus, Qualified Immunity acts as a rebuttable presumption for public officials if they allege that they acted reasonably when performing the allegedly violative behavior.[13]

As aforementioned, in order to overcome the rebuttable presumption of Qualified Immunity, a plaintiff must show that a constitutional right was both violated and “clearly established” at the time of the violation.[14] While some rights such as the right to speak in a public forum and publish and distribute literature are undoubtedly established and detailed in precedent case law, whether video recording police officers’ conduct is a “clearly established” right is still strongly debated among the federal courts throughout the United States.

Since video recording technology has been made readily available to the general public, people have been recording the conduct of law enforcement officers.[15] However, just like the federal courts involved in the circuit split at issue here, there are parties that argue for both sides. Advocates of citizens’ right to record police activities often point to flagrant instances of injustice and brutality, such as the infamous Rodney King beating in 1991.[16] For example, the independent investigative LAPD team stated “. . . without the . . . videotape the complaint might have been adjudged to be ‘not sustained,’ because the officers’ version conflicted with the account by King and his two passengers.”[17] While this instance has become the flagship for civil rights activists speaking against police brutality, it also illustrates the dangers of individuals’ testimony without concrete recorded evidence. Without the availability of 1st-hand recordings, many crimes and torts would be dismissed from our legal system and some would never even come to light.[18]

Despite this evidential concern, opposing parties argue that recording police can negatively affect how they perform their official duties.[19] For example, if an officer is recorded and subsequently reprimanded by his department or the public despite no wrongdoing being found, that officer may be deterred from effectively using force against citizens in the future.[20] Furthermore, in some circumstances, the party responsible for the recording can inhibit a police officer’s duty to work effectively. In Ortiz, while recording the police officer, the plaintiff placed his camera “as close as one foot” from the officer’s face.[21] Such drastic actions not only decrease a law enforcement officer’s privacy as an American citizen, but may debatably teeter on the edge of assault in the right circumstances.[22] As a result, 11 states still enforce some form of an Eavesdropping law or wiretapping statute against citizens who record police activities.[23] Under these laws, without the officer’s permission, he or she may not be recorded in any way. Furthermore, if unauthorized recording occurs, the recording individual may then be subject to criminal discipline.[24] Regardless of which side one takes in this debate, the recent cases comprising the circuit split indicate that there are advocates for both sides

CURRENT CIRCUIT SPLIT

Jurisdictions Holding Police Officers have Qualified Immunity

The Third and Fourth Circuits have both held that video recording police officers is not a “clearly established” right, which affords Qualified Immunity to police officers who stop citizens from recording their behavior.[25] It is important to note that although these courts afford Qualified Immunity to police officers in these circumstances, they concede that video recording police activity may be a right protected by the First Amendment. Despite this concession, citizens who have this right violated by police officers are unable to successfully obtain civil judgments against them. It is also important to note that each case from these circuits have varying facts, which as a result, may have affected the court’s opinion.

According to the Third Circuit, video recording police activities during traffic stops is not a “clearly established” right because the U.S. Supreme Court has held that traffic stops are inherently dangerous situations for police officers.[26] In Kelly, the plaintiff was a passenger in a vehicle pulled over for minor traffic violations including speeding and a “bumper height restriction.”[27] Plaintiff, a passenger in the vehicle, secretly began recording the defendant without his knowledge. When the officer realized this, he confiscated the camera and arrested the plaintiff. The police officer claimed he had probable cause to arrest the plaintiff due to Pennsylvania’s wiretap statute and his lack of consent to his activities being recorded.[28] After the lower court granted defendant’s motion for summary judgment under the Qualified Immunity doctrine, the Third Circuit reviewed the case.[29] Ultimately affirming the district court’s grant of summary judgment, the court focused on two main points: 1) the fact that there was conflicting case law throughout the country at the time of the alleged violation and 2) the inherently dangerous nature of traffic stops that requires police officers’ command of the situation.[30] As a result of these circumstances, the Third Circuit held that police officers engaged in traffic stops are to be afforded Qualified Immunity for cessation of video recording.[31]

The Fourth Circuit also determined that recording police activity was not a “clearly established” right.[32] However, unlike the Third Circuit, the Fourth Circuit ruled against a plaintiff for recording in a public space as opposed to during a traffic stop.[33] Unfortunately, the Fourth Circuit Court failed to elaborate on its precise reasoning. In its opinion, the Court simply stated, “[T]he district court concluded that Szymecki’s asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. We have thoroughly reviewed the record and the relevant legal authorities and we agree.”[34] However, the Court also added Fourth Circuit precedent that states, “if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense.”[35] Therefore, the Fourth Circuit does not use another circuit’s recognition of a “clearly established” right as evidence of its status as such. Instead, this Circuit only recognizes rights as “clearly established” if it is shown in its own courts.

Jurisdictions Holding Video Recording Police is “Clearly Established” Right

As previously stated, the First and Eleventh Circuits have held that video recording police officers’ activity is a “clearly established” right.[36] Thus, in those circuits, law enforcement officers do not possess Qualified Immunity when they prevent or cease video recordings.[37]

For example, the Eleventh Circuit has held that citizens have a “clearly established” right to video record police activities in public places.[38] The Court also stated that this right is especially established when the subject being recorded is a “matter[] of public interest,” such as a public officer’s interactions with civilians.[39] Without discussing the particular facts of the plaintiff’s claim, the Eleventh Circuit recognized this conduct as a First Amendment right “subject to reasonable time, manner and place restrictions.”[40] Although the Court affirmed the grant of defendants’ motion for summary judgment, this was due to plaintiff’s failure to show the conduct actually violated plaintiff’s rights.[41] Despite the plaintiff’s lack of evidence, the Court held that such video recording is a “clearly established” right.[42] Unfortunately, this opinion did not detail the extent of the right or what restrictions would be considered “reasonable” in the Eleventh Circuit.

But after the Eleventh Circuit’s decision in 2000, more than a decade later, the First Circuit agreed with the Eleventh Circuit and further explained the nature of this First Amendment right.[43] In Glik, the First Circuit found that the right to record police officers “fits comfortably within” the principles protected by the First Amendment.[44] In Glik, the plaintiff was walking in a well-known park in Boston called the Boston Common, when he noticed three police officers arresting a suspect.[45] After hearing another bystander exclaim that the officers were hurting the man, the plaintiff began recording the event on his cell phone.[46] After the suspect was subdued, an officer approached the plaintiff and asked if the cell phone recorded audio.[47] Replying in the affirmative, the plaintiff continued recording and was then arrested for violation of the Massachusetts wiretap statute.[48] The phone was confiscated and kept as evidence.[49] All of the criminal charges against plaintiff were dropped and he initiated this lawsuit against the officers.[50] After defendants’ motion for summary judgment as denied by the lower court, they appealed to the First Circuit claiming that defendants were protected under Qualified Immunity.[51] While defendants argued that plaintiff did not have the right to record because he was a private individual rather than a reporter, the First Circuit stated that such First Amendment rights were not limited to members of the press.[52] The Court further explained that because recording police activity “. . . not only aids in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government . . .” private citizens should be allowed to exercise such a right without police interference.[53] According to the First Circuit, because plaintiff acted peacefully, legally, and was protected by the First Amendment, defendants “lacked the authority to stop [him].”[54] The Court also appropriately noted “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.”[55] Much like the Eleventh Circuit stated in Smith, the First Circuit also conceded that reasonable limitations must occasionally be placed on such activities.[56] Despite this concession, the Court stated that the plaintiff was still protected because he acted in an obviously public area and neither “spoke to nor molested the officers” throughout his recording.[57]

Obviously, one of the most alarming issues that surround this controversy is that video recording is becoming more widely available and simplified through the use of cell phones. According to ABC News, 91% of Americans currently own a mobile phone, which most likely have video recording capabilities.[58] Furthermore, 61% of Americans use a “smart phone” with Internet, capable of posting videos online.[59] Thus, this issue simply must be settled because the amount of litigation regarding such recording is likely to only increase.

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

[2] FIRST AMENDMENT, http://www.law.cornell.edu/wex/first_amendment (last visited Oct. 3, 2013).

[3] Id.

[4] First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978).

[5] First Amendment, http://www.law.cornell.edu/wex/first_amendment.

[6] Blackston v. AL, 30 F.3d 117, 120 (11th Cir. 1994).

[7] Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978).

[8] Abbott v. Sangamon Cty., 705 F.3d 706, 14 (7th Cir. 2012).

[9] Id.

[10] Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir. 2008).

[11] Chelios, 520 F.3d at 691.

[12] Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982) (emphasis added).

[13] E.g., id.

[14] Id.

[15] See Andrew R. Shaw, Our Duty in Light of the Law’s Irrelevance: Police Brutality and Civilian Recordings, 20 GEO. J. POVERTY LAW & POL’Y 161 (2012).

[16] Id. at 162.

[17] Id.

[18] Id.

[19] http://www.pqed.org/2011/01/should-people-be-allowed-to-record.html.

[20] Id.

[21] Ortiz v. City of New York, 2013 U.S. Dist. LEXIS 136897 (S.D.N.Y. 2013).

[22] Id.

[23] See generally Stephanie Claiborne, Comment: Is it Justice or a Crime to Record the Police?: A Look at the Illinois Eavesdropping Statute and its Application, 45 J. MARSHALL L. REV. 485.

[24] Id.

[25] See generally Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009); King v. City of Indianapolis, 2013 U.S. Dist. LEXIS 123505 (So. Ind. 2013).

[26] Kelly, 622 F.3d at 262.

[27] Id. at 252.

[28] Id.

[29] Id. at 251.

[30] Id.

[31] Id.

[32] Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009).

[33] Id.

[34] Id. at 853.

[35] Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotations omitted).

[36] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

[37] Id.

[38] Smith, 212 F.3d 1332

[39] Id. at 1333

[40] Id.

[41] Id.

[42] Id.

[43] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[44] Id. at 82.

[45] Id. at 79.

[46] Id.

[47] Id. at 80.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id. at 82.

[53] Id. at 82-83.

[54] Id. at 83.

[55] Id. at 84

[56] Id.

[57] Id. at 84

[58] Joanna Stern, More Than Half of Americans Own Smartphones, ABC NEWS http://abcnews.go.com/blogs/technology/2013/06/more-than-half-of-americans-own-smartphones/.

[59] Id.

Free Speech or Treason: Finding the Correct Standard for Material Support

Free Speech or Treason: Finding the Correct Standard for Material Support

Abigail Castleberry

            On February 13, 2004, Dr. Tarek Mehanna returned to his home in Boston after a ten-day trip to Abu Dhabi and Yemen. Prosecutors pointed to this trip in arguing that Mehanna provided himself as personnel to Al-Qaeda, though no proof of actual contact was presented to the jury. Later in 2005. Mehanna, at the request of an acquaintance, provided English translations of Arabic-language materials for a website. Mehanna also disseminated certain Arabic texts raising points of Islamic doctrine and opposition to the United States’ actions in Iraq. No evidence was presented at trial showing that any of this material was solicited by Al-Qaeda, and most of the evidence pointed to Mehanna’s actions being an expression of his own personal views. Mehanna was arrested in November of 2008, right before departing to Saudi Arabia for a clinical pharmacy position. After Mehanna refused to serve as an informant, the government filed terrorism charges. Mehanna was convicted of providing “material support” to a terrorist organization, the charge most often used in federal terrorism cases. [1] The statute forbids four types of material support: training, expert advice or assistance, service, and personnel. [2] Prosecutors argued that Mehanna’s translations and postings provided a service to Al-Qaeda. Mehanna was convicted and sentenced to seventeen years, and he appealed to the First Circuit  Court of Appeals which affirmed the conviction. [3] Mehanna has applied for certiorari from the United States Supreme Court.

The foundation of the case is the meaning of Holder v. Humanitarian Law Project.[4] In Humanitarian Law Project, the Court held that the material support statute could constitutionally prohibit “coordinated” speech such as the direct, interactive teaching. [5] Furthermore, the court defined “service” to “cover advocacy performed in coordination with, or at least at the direction of, a foreign terrorist organization.” [6] However, the Court made it clear that individual advocacy could not be covered by the statute.[7] Humanitarian Law Project did leave open the exact definition of “coordination,” noting that the “’gradation of fact or charge would made a difference as to criminal liability,’ and so adjudication of the reach and constitutionality of the statute must await a concrete situation.”[8] Mehanna claims his case is the ideal for testing the contours of the “material support” statute.

The essential question in this case is how broadly or narrowly the Court will define “coordination.” According to the government’s argument, speech is unprotected when the purpose is in support of the enemy. Therefore, moral support is essentially “coordination” according the government. Such a broad definition likely violates Mehanna’s First Amendment rights. However, there are multiple standards in defining “coordination,” and depending upon the standard that is applied, the outcome of Mehanna’s case could potentially have drastic variations. The standard asserted by the government is likely too broad and difficult to apply. Determining whether speech is in support of the enemy would be an extensively subjective analysis. Under this standard, even a mild condoning of the enemy’s action could be construed as aiding the enemy. Therefore, under this standard, Mehanna’s conviction would likely stand. Though Mehanna had no direct connections with Al Qaeda, his translations likely were read by members and potential trainees. Therefore, the postings and translations would meet the government’s standard for coordination.

The best standard, and the one that likely adheres to the wording of the material support statute, would require actual contact and dealing with the enemy. This standard is supported by the Humanitarian Law Project in which the Court stated that individual advocacy could not be construed as falling under the material support statute. Unlike the government’s standard, requiring contact and dealing with terrorist groups is beneficial on two fronts. First, the standard respects the First Amendment. Those who voice an opinion in support of a terrorist group’s actions will be protected. However, the standard also follows treason jurisprudence by supporting the proposition “trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment. Congress may make criminal any type of dealing with the enemy which in its judgment may have the potentiality of harm to our national interest.”[9] Furthermore, the narrower application of the material support statute would focus law enforcement resources in pursuing individual who pose an actual threat.

The Court is waiting on arguments from the government before deciding to grant certiorari. Even if the Court refuses to grant certiorari, the issues surrounding this case pose a fundamental question on what our nation sees as treason. At a time when America faces new and unpredictable threats, the Court needs clear precedent in guiding law enforcement about the rights of citizens in this new environment.


[1] 18 U.S.C. § 2339B (2012).

[2] Id.

[3] United  States v. Mehanna, 735 F.3d 32 (1st Cir. 2013).

[4] 560 U.S. 1 (2010).

[5] Id. at 2709.

[6] Id. at 2709-10.

[7] Id. at 2709.

[8] Id. at 2722.

[9] Chandler v. United States, 171 F.2d 921, 939 (1st Cir. 1948).

Expansion of Religious Freedoms or Justification for Discrimination?

Expansion of Religious Freedoms or Justification for Discrimination?

Katherine Reeves

For the past few weeks, the United States’ media has yet again focused on laws presented by the Arizona Legislature.  Senate Bill 1062[1] has created uproar across the nation, and many cite to this media coverage as the reasoning behind Governor Jan Brewer’s veto of the bill.[2]  Supporters say the bill is solely about religious liberty while those in opposition contend the bill is directly “anti-gay” legislation although there is no mention of sexuality in the text.[3]

As the wave of “gay rights” sweeps our nation, the question of the extent of religious freedom has again come to the forefront as a hot political issue in our society. It is important that we take time to look back at the history of both religious freedom and same-sex couples’ rights in American laws.  Additionally, other areas of civil liberty have offered to limit the scope of religious freedom. The Supreme Court has acted as a referee in many of these cases and offers some guidance as to the stance of the Federal Government on the balance between civil and religious liberty.

The proponents of Senate bill focus on the importance of legal protection for religious beliefs in the United States. The concept of religious freedom dates back to the colonial times of the future United States and was so credited as one of the reasons for the break from the English government.[4]  Although the country was primarily Christian, the framers of the United States Constitution formed the “free exercise” clause under the First Amendment broadly to include all religion.[5]  The Supreme Court has interpreted the free exercise clause on many occasions beginning with deeming it a strict scrutiny Constitutional issue. In Sherbert v. Verner.[6] In 1990, however, the Court denied religious exemptions from “neutral laws of general applicability.”[7] Many states reacted to this decision by enacting laws offering expanded protections for freedom of religion.[8]  Additionally, Congress took action by passing the Religious Freedom Restoration Act of 1993[9] but this legislation was short lived as the Supreme Court ruled it unconstitutional under the Fourteenth Amendment.[10] The limited protection offered by the Federal Government makes state protections more important.[11]

Turning to the opposition’s view of the bill, we must look to the history of laws relating to homosexuals.  The “gay rights movement”[12] has gained significant attention on the topic of marriage equality, but how did we get to this point? Although there have never been explicit laws against being gay, related laws caused legal recourse for being homosexual.[13] Stoumen v. Reilly, in 1951 spurred the beginning of restricting state discrimination of homosexuals where the Court said that a liquor license could not be withheld simply because the business served homosexuals.[14] Fast forward nearly half of a century (during which our system evolved dramatically), the Supreme Court ruled a Colorado constitutional amendment banning any anti-discrimination laws protecting homosexuals as unconstitutional.[15] That decision paved the way for subsequent Supreme Court cases which invalidated many sodomy laws and struck down Section 3 of the Defense of Marriage Act.[16]

The gay rights at odds with religious freedoms covered in the recent Arizona bill are more closely related to the topic of discrimination in private business.  Religious freedom in business ownership and operation has recently been in the spotlight due to contraceptive coverage in mandated health coverage for full time employees. Currently pending before the Supreme Court, is a case challenging this portion of health coverage based on the religious beliefs and practices of the Hobby Lobby Corporation.[17] The question presented under this case is whether the federal government’s mandate of contraceptive coverage violated the Religious Freedom Restoration Act of 1993 (RFRA)[18] that states that the government “shall not substantially burden a person’s exercise of religion.”[19] There is a distinct separation between the recent Arizona bill and this case: the Hobby Lobby case is regarding federal legislation effecting religious freedom. This case may offer guidance, however, in evaluating the fallen bill because the supporters of the vetoed Arizona bill claim that the broad wording of the bill was aimed at preventing issues of the state forcing businesses to participate in practices that may infringe on their religious beliefs.

In 1999 Arizona became one of the many states to take the protection of religious liberties into their own hands and enacted the Free Exercise of Religion Act (FERA).[20] Senate Bill 1062 is cited as an extension of the FERA by expanding the original definitions of “exercise of religion,” “person,” and “state action.”[21] The bill intended to expand the protections for religious individuals from state action that may burden religious beliefs. Additionally, the bill provided for injunctive and declarative relief in the incident of “claim or defense in a judicial proceeding” on the basis of burden on their religious beliefs.[22] In short, this provision allows individuals to file suit when they believe any state or local laws are violating religious rights, including any anti-discrimination laws.[23]

Although Arizona does not currently have a statewide law banning discrimination on the basis of sexual orientation, several local governments have passed such laws.[24] It is due to these anti-discrimination laws, that the Arizona legislature presented Senate Bill 1062. Their actions were directly in anticipation of legal issues due to the difficult relationship “between the freedom of religion and the right not to be discriminated against on the grounds of sexual orientation.”[25] Governor Brewer indicated her opinion of the bill, in her statement after her announced veto, by saying that the bill had “the potential to create more problems than it purports to solve.”[26] Brewer was referring to the lack of conflict with the anti-discrimination laws in Arizona; however such conflict has recently occurred in other states. In August 2013, the Supreme Court of New Mexico affirmed that a photography company violated anti-discrimination laws by refusing to photograph a customer’s same-sex wedding.[27] Although the issue has not arisen in Arizona, it is important to recognize the intent of the legislature to avoid such conflict of religion and discrimination laws in the courts.

This is not an issue that the United States is unfamiliar with, as feminism presented many of the same issues.[28] It is evident that the issue of women’s rights was more socially challenged than religiously challenged; therefore, anti-discrimination laws on the basis of gender did not face freedom of religion adversity this severely. Additionally, the United States legal system has faced many issues on the topic of anti-discrimination laws on the basis of race. Although it is commonly known that discrimination based on race and gender is still common, hindsight shows us the necessity of such laws.

The issue before us is about the expansion of religious freedom’s effect on discrimination against homosexuals. The extent of power of individuals and businesses to make decisions based on their religion is not only a question in Arizona, but throughout our country.  So what do we value more as Americas: the freedom of religion or the freedom to not be discriminated against? Although there is no easy answer, Senate Bill 1062’s veto indicates the latter.


[1] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[2] See, Warren Richey, Was vetoed Arizona bill misrepresented? What constitutional scholars say., The Christian Science Moniter, Feb. 27, 2014, http://www.csmonitor.com/USA/Justice/2014/0227/Was-vetoed-Arizona-bill-misrepresented-What-constitutional-scholars-say.-video; Timothy Egan, Arizona did us all a favor, New York Times, March 1, 2014, http://www.nytimes.com/2014/03/02/opinion/sunday/egan-arizona-did-us-all-a-favor.html?hp&rref=opinion&_r=0; See also, Tammy Bruce, Why the veto of Arizona’s religious freedom bill is alarming, FoxNews.com, Feb. 28, 2014, http://www.foxnews.com/opinion/2014/02/28/why-veto-arizonas-religious-freedom-bill-is-alarming/.

[3] See, Richey, supra note 2.

[4] See generally, Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 3 (2008)

[5] U.S. Const. amend I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise.”)

[6] 374 U.S. 398 (1963).

[7] Employment Division v. Smith, 494 U.S. 872 (1990).

[8] David H.E. Becker, Free Exercise of Religion Under the New York Constitution, 84 Cornell L. Rev. 1088, 1093 (1999)

[9] Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to bb-4 (1994)), declared unconstitutional by City of Boerne v. Flores, 521 U.S. 507 (1997).

[10] Becker, supra note 8, Becker.

[11] Id.

[12] See generally, Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1553 (1993)

[13] Id at 1564-1565

[14] 234 P.2d 969 (Cal. 1951).

[15] Romer v. Evans, 517 U.S. 620 (1996).

[16] Lawrence v. Texas, 539 U.S. 558 (2008); U.S. v. Windsor, No. 12-307 (U.S. June 26,2013).

[17] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (2013) (No. 13-356, 2013 Term; renumbered No. 13-354, 2013 term)

[18] Religious Freedom Restoration Act of 1993, PL 103–141, November 16, 1993, 107 Stat 1488

[19] Id.

[20] Ariz. Rev. Stat. Ann. § 41-1493.01 (West)

[21] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[22] Id.

[23] Richey, supra note 2.

[24] Id.

[25] Megan Pearson, Religious Claims vs. Non-Discrimination Rights: Another Plea for Difficulty, 15 Rutgers J. L. & Religion 47 (2013)

[26] Richey, supra note 2.

[27] Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)

[28] See generally, Pearson, supra note 25.

The Supreme Court and the Occupy Wall Street Movement

The Supreme Court and the Occupy Wall Street Movement

Paul Sloderbeck

The tents are gone in the downtown plazas and parks across the country. There are no reports of police clashes in New York City’s Zucotti Park with protesters associated with the “Occupy Wall Street” Movement. Certain parts of that movement remain, though. The comparison between the “99%” and the “1%” has become a part of the national dialogue. Discussions about wealth inequality in America and disproportionate growth may be more common. But for all the Occupy Movement may have accomplished, the tents are gone. In that regard, municipal governments prevailed. The Courts upheld many of their camping and loitering bans as Constitutional as applied against the Occupy protestors and the tents had to go. The First Amendment may give robust protection to daytime protest activities, but in areas like the symbolic speech involving overnight camping, it could not keep the Occupy protestors in their temporary public homes.

The Supreme Court first proposed a test for “symbolic speech” activities in United States v. O’Brien.[1] This case involved the prosecution of a man for burning his draft card under a statute making that practice illegal. When speech involves “speech” and “nonspeech” elements, the governmental interest in regulating the nonspeech elements can justify First Amendment limitations if it is within the Constitutional power of the government, furthers an important or substantial government interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.[2] The Court hesitated to allow a seemingly unlimited variety of conduct to be labelled as speech.

The Court later settled on a two-part test for determining when expressive conduct may be considered speech in Spence v. Washington.[3] The factors to be considered are both the intent on behalf of those engaging in the conduct to communicate a message through their conduct and the likelihood that those observing the conduct will understand the message.[4] In Spence the conduct was the display of an American flag that had been hung upside down and modified with black tape to include a peace symbol. Here the Court introduced a context element into its analysis. Certain acts could become speech based on the times in which they occur. In this case the invasion of Cambodia and the Kent State incident played into Spence’s motivation and perception. The Court held that the Washington law under which Spence had been convicted impermissibly limited his First Amendment rights.

In the context of camping or sleeping overnight as a type of symbolic speech, there are several cases arising out of Washington, DC. In United States v. Abney, a World War II Veteran’s continual sleeping in Lafayette Park to protest his treatment by the Veterans Administration was permitted and the Park Service regulation that prohibited sleeping or camping was invalidated.[5] A pair of cases surrounding the sleeping activities of the Community for Creative Non-Violence reiterated this view. The Court of Appeals for the District of Columbia found that the actions of this group camping and sleeping on the National Mall to protest the plight of the homeless had the sufficient context and political expression elements to constitute speech, and that the Park Service failed to show that its interests would be furthered by a ban on the activity.[6] However, a year later the Supreme Court overturned the decision, finding that the protestors’ rights had not been violated.[7]

As the Occupy Movement went through the Courts across the country, many city governments relied on the Supreme Court’s Clark decision to justify their bans on sleeping overnight in city parks, in spite of how the Occupy protestors’ conduct might be deemed expressive under the First Amendment. In Minneapolis, the Court allowed the ban on sleeping in the plaza as a valid time, place and manner restriction under Clark.[8] The protestors there also had no First Amendment right to municipal electricity for purposes of sound amplification. The Court in Occupy Fort Myers v. City of Fort Myers recognized the conduct of maintaining a presence in the park in order to simulate an occupation as expressive.[9] It found the ordinances against loitering and after-hours park use restrictive as applied against the protestors, but did uphold an ordinance prohibiting the erection tents or other temporary shelters for overnight camping.[10] A similar result occurred in the Occupy movement in Columbia, SC, where the court recognized the occupation as expressive conduct, but upheld a ban on overnight camping and sleeping.[11]

The treatment of the Occupy Movements in the Courts demonstrates the dilemma for overnight sleeping demonstrations. The activity is clearly enlaced with symbolic meaning. The overnight presence of protestors gives an effective symbol for a continuous occupation. The Courts have recognized this symbolic speech, and yet have upheld many of the bans designed to make it much more difficult, by upholding bans on the use of tents, electricity or even fully banning the overnight occupation. In many cases this was done in reliance on the Supreme Court’s Clark decision. For all its success in shaping the public dialogue on wealth equality, the Occupy Movement did less in moving forward the First Amendment right to symbolic speech involving overnight sleep in public areas. Perhaps the next movement similar to this one will help further define and advance the contours of this important area of First Amendment Jurisprudence.


[2] Id. at 377.

[3] Spence v. Washington, 418 U.S. 405 (1974).

[4] Id. at 410-411.

[5] United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976)

[6] Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983) rev’d. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[7] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[9] Occupy Fort Myers v. City of Fort Myers, No. 2:11-cv-00608, 2011 WL 5554034 at *5 (M.D. Fla. Nov. 15, 2011)

[10] Id. at *11.

[11] Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3:11-CV-03283, 2011 WL 6318587 (D.S.C. Dec. 16, 2011)

Is There a Right to Record Police?

Is There a Right to Record Police?

By: Logan Manthey

Doing a Google search for “police brutality” or “corrupt cops” will pull up thousands of video hits these days. Many people, when asked would say that one has a right to videotape police officers in public. However, after watching a few of these videos, the reactions of the police officers would give one a different impression. Daily, there are stories that detail how police have used one law or another to detain, arrest, and confiscate video of police activity made by citizens.[1] So what exactly can one do if one wishes to videotape police officers performing their duties in public? The answer to that question is a little more complicated than one might think. First of all, the right has not been clearly addressed by mot circuits and the Supreme Court. And when it has been addressed by the few circuit courts that have addressed it, they have come to conflicting decisions. However, what is certain is that there is a general Frist Amendment right to record matters of public interest in a public forum.[2] However, it is not always an absolute right and is subject to restrictions as the Supreme Court held in Ward v. Rock Against Racism.[3] Because it is not absolute, there are restrictions, and so far, there has been no clear delineation of what those rights are.

Typically, in public forums, parks, First Amendment protection is at its strongest.[4] The right of the government to limit speech in these areas is circumscribed, and any government restriction of speech has to be able to pass a high level of scrutiny in order for it to be constitutional.[5] Public areas and parks, especially, are the “apotheosis of public forum.”[6] These places have had a long tradition of being centers of public discussion in America. When there is a rally or protest, they are typically seen in parks or city streets, not someone’s private property. The right to record is essential so that the public knows what is going on. Going back to the Revolution time period, people recording the events and goings on of the British is what sparked the Revolution. The right to record matters of public interest. When citizens exercise their First Amendment right to gather and disseminate news in a way that promotes public discussion and scrutiny of gov’t officials, they advance a “a major purpose of the First Amendment interest.”[7] So the question is, how far does this right extend in protecting the right to record matters of public interest and where?

A recent line of lower court decisions have decided on this issue and both have gone separate ways. The two most recent and seminal cases are the First and Third Circuits, Glik v. Cunniffe and Kelly v. Borough of Carlisle respectively, pertaining to this decision up to this point.[8] The First Circuit in Glik found that there was a right to record matters of public interest, and should one be arrested for filming police officers in a “peaceful manner,” that right is violated because one has a right to record police officers performing their duty in a public place as it is a matter of public interest.[9] However, the Supreme Court case, Ward v. Rock Against Racism, that stated that the right to record is not absolute is subject to reasonable time, place, and manner restrictions.[10] The court stated in certain situations the right may be curtailed, as it is not fully protected, if it is a dangerous situation or other limiting factors, like interference with an on-going investigation, may be present.[11] The court emphasized that officers in certain situations need to have complete control, and videotaping might compromise that control.[12] They cited to the Supreme Court case of Pennsylvania v. Mimms where the Supreme Court declared that during a traffic stop, police officers need complete control

So the two most recent decisions leave us wondering what the limits of this law are. Really, it seems that they could be complimentary to each other. The rule created from this case being that one has a right to record matters of public interest in a public forum so long as the safety of officers or bystanders is not at risk, and the recording does not interfere with an ongoing police investigation or other activity. However, judging by the most recent moot court competition assignment, the rule to be made is still up for debate.[13]

So where does this circuit split leave us today? Currently, one can find stories of people being arrested all over the country for filming police officers daily during protests or traffic stops. Usually, these supposed criminals are violating wiretapping-like laws.[14] The Supreme Court will not be hearing a case pertaining to this anytime soon. It recently denied certiorari to Anita Alvarez v. ACLU of Illinois which left in place the lower court’s holding that the arrest for “eavesdropping” was unconstitutional.[15] However, to speculate a bit, if the Supreme Court were to hear a case today, I believe that the Supreme Court will find that one has a right to record matters of public interest, including police officers, but with some sort of qualifying language or limitations of course.

If the fact that the Supreme Court denied writ for the above mentioned case wasn’t bad enough, police officers enjoy qualified immunity from being sued in court for their violations of these rights unless one can show that there is a right that was violated and at the time of the violation that right was “clearly established.”[16] However, this area of law is so new that a few judges have found that the right to matters of public interest and to record police is not “clearly established.” So even if one were to show that there is a right and it was violated, depending on the judge, the case may fail even before it gets started because the officer would not have been put “on notice” of the state of the law regarding the right to record matters of public interest.[17] But that trend could be breaking, the most recent case, Glik, found that there is a right to record police in public, as it is a matter of public interest, and that an officer is on notice that his actions may violate one’s First Amendment right to record.[18] Also, the Justice Department filed a statement with a federal court in Maryland stating that there is a right to record police in public and that the Fourth and Fourteenth Amendments protect one’s right from unlawful seizure of his or her cellphone should it be demanded of them if they film officers in public.[19] In fact, it may be that Congress can pass new legislation that protects this right because of the power that the Fourteenth Amendment gives it in passing legislation that protects against infringement of rights.[20]

So, be careful out there when recording police. Do it from a distance and do not interfere with their investigation. If they demand that you stop, know that you are in your rights to continue to film, and if they demand your phone without a warrant, also know that you are in your rights to deny them that search and seizure. Who knows? Maybe you’re case will become the test case that law students will read about when they discuss this are of the law.


[1] See e.g., Josh Gerstein, U.S. Weighs In Favor of Right to Record Police, POLITICO, http://www.politico.com/blogs/under-the-radar/2013/03/us-weighs-in-favor-of-right-to-record-police-158828.html; Radley Balko, Good News and Bad News on Recording the Police, WASHINGTON POST, http://www.washingtonpost.com/news/the-watch/wp/2014/02/18/good-news-and-bad-news-on-recording-the-police/?tid=pm_lifestyle_pop.; Morgan Leigh Manning, Yes, You Have the Right to Record Police, POPULAR MECHANICS, http://www.popularmechanics.com/technology/gadgets/news/yes-you-have-the-right-to-record-the-police-analysis-15558522.

[2] See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) .

[3] 491 U.S. 781.

[4] Id.

[5] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n 460 U.S. 37, 45.(1983).

[6] Glik, 655 F.3d at 85(1st Cir. 2011).

[7] Mills v. AL. 384 U.S. 214, 219 (1966).

[8]  See Glik and Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010).

[9] Glik, 655 F.3d at 86.

[10] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

[11] Kelly, 622 F.3d at 262.

[12] Id.

[13] Campbell Moot Court Packet, 2014.

[14] See generally Glik v. Cunniffe, 655 F.3d 78.

[15]  Josh Gerstein, Supreme Court Won’t Hear Police Recording Case, Politico, http://www.politico.com/blogs/under-the-radar/2012/11/supreme-court-wont-hear-police-recording-case-150290.html

[16] See Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).

[17] Id.

[18] See Glik, 655 F.3d at 85.

[19] Gerstein, supra note 1.

[20] Morgan Leigh Manning, supra note 1.

The Irony and Efficacy of University Speech Codes

The Irony and Efficacy of University Speech Codes

William Derek Green

 

            College administrators are often considered to be the foremost advocates of “open dialogue,” “diversity of thought,” and of course, “freedom of speech.”  However, in a disturbing trend that has developed over the last 30 years at universities across the United States, these laudable principles have increasingly existed side by side with speech codes whose paradoxical effect is to repress open dialogue, inhibit diversity of thought, and interfere with freedom of speech.  Between 1990 and 1991, for example, the number of hate-speech codes at American universities ballooned from approximately 75 to over 300.[1]  Currently, over 95% of universities enforce restrictions on speech.[2]  Supporters of such restrictions have asserted that “[t]he verbal attack is a symptom of an oppressive history of discrimination and subjugation that plagues the harmed student,” and that “[t]he resulting harm is clearly significant and, therefore, justifies limiting speech rights.”[3]  But while eliminating the legacies of societal discrimination is a commendable goal, one that every citizen should strive to make reality, institutionalized restrictions on personal expression are incompatible with the Constitution’s guarantee of free speech.  Furthermore, such restrictions are almost certainly antithetical, or at the very least, unnecessary, to achieving a tolerant society.

            University speech codes have frequently been found unconstitutional.  In the 1980’s the University of Michigan issued a policy prohibiting “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.”[4]  In order to constitute a violation of university policy, such behavior need not be directed towards any particular student; it need only be deemed, in the discretion of school officials, to constitute prohibited behavior.[5]  The court of the Eastern District of Michigan held that the restrictions were overbroad prohibitions on the First Amendment’s guarantee of free speech and so vague as to prevent students from fully exercising their rights under the Due Process clause.[6]  Plainly disturbed by the idea that such policies would “put…universities into the business of censorship,” the District Judge discussed the importance of free speech and the hypocrisy of university administrators at length in the opinion’s conclusion.[7]  The Judge found it particularly ironic that the university had issued a statement prior to the adoption of its speech codes stating that “[t]he belief that some opinion is pernicious, false, or in any other way detestable cannot be grounds for its suppression.”[8]  Such inconsistency was apparently lost, perhaps willfully, on the administrators.  In the twenty-four years since the University of Michigan opinion was issued, the weight of authority has been against campus speech codes[9], yet they persist at the majority of American universities, even those located in jurisdictions that have found speech codes unconstitutional.[10]

            In the essay Kindly Inquisitors, Revisited, Jonathan Rauch bemoans the proliferation over the last twenty years of what he calls “the new attacks on free thought.”[11]  Observing that attacks on free speech in the guise of anti hate-speech laws are routinely considered unconstitutional in the United States, Rauch notes that such speech restrictions have nevertheless become commonplace by sneaking in through the back door of bureaucratic prohibition:  overbroad “hostile environment” laws have prevented atheist-unfriendly Bible verses from being printed on receipts,[12] and University of Pennsylvania speech codes once led to the prosecution of a Jewish student for calling a group of African-American sorority sisters “water buffalo,” a decidedly race-neutral term drawn from Hebrew slang for “rowdy person.”[13]  Rauch believes that those who would legally restrict hurtful or discriminatory speech “mistake the cart for the horse,” because hate-speech laws are, invariably, not the cause of increased societal tolerance for the protected group, but rather the effect.[14]

            Homosexuals in the 1960’s, Rauch writes, were subject to ubiquitous hatred from every corner of American society.[15]  But just fifty years later, despite the absence of any sort of hate-speech law designed to protect them, American homosexual rights enjoy firm majoritarian support.[16]  So what changed?  Quite simply, homosexuals began to talk, out loud, in the media, and to anyone who would listen; often to those who wouldn’t.[17]  Rauch points to Frank Kameny, a World War II veteran who, in 1957, was fired from the U.S. Army Map Service for being gay.[18]  Unlike most, who would merely stand down and suffer, Kameny fought back.[19]  He vigorously demanded that the U.S. Civil Service Commission reinstate him, filed a Supreme Court brief, and led the first gay rights demonstrations, in front of the White House, no less.[20]  Momentum built, more and more homosexuals refused to be marginalized, and eventually American society changed. “If the pervasiveness of bigotry was supposed to silence them, as hate-speech allegedly does, Frank Kameny” and all those who followed his example “missed the memo.”[21] 

            In the unthinkable event that hate-speech laws had been passed in the gay-unfriendly America of the 1960’s, they would only have hampered the efforts of people like Frank Kameny.[22]  “It would have given the illusion that the job was finished when, in fact, the job was only beginning.  It would have condescended to a people fighting for respect.”[23]  The route through which those like Frank Kameny destroyed prejudice and reconfigured American society for the better was not legislative fiat, but rational discourse in civil society.  The suggestion that homosexuals are not evil, immoral, or sick may have fallen on largely deaf ears in the 1950’s and 1960’s, but once it was heard enough, people began to test that statement for its truth.  And they realized that Frank Kameny was correct:  homosexuals are people, just like everyone else, deserving of the same rights, the same reprimands, and the same rewards.  Kauch calls this process “liberal science,” the testing of ideas for their veracity, and the weeding out of those ideas that do not pass muster.[24]  Such a process depends on the expression of those ideas which may be considered toxic, or are even plainly wrong; without a proposition to rebut, it becomes difficult to convince people of the truth. 

            It is sadly ironic that American universities, supposed bastions of intellectual freedom and the search for truth, would put such a stranglehold on what they claim to hold most dear.  But there is some cause for hope among defenders of civil liberties.  2013 marks the fifth year in a row that university speech codes have declined in number.[25]  Furthermore, universities are increasingly eliminating all of their speech codes.[26]  There has also been a groundswell of support for the repeal of campus speech codes, as shown by the creation of the Foundation for Individual Rights in Education,[27] a group devoted to ending university speech codes, and the American Civil Liberties Union’s staunch opposition to such policies.[28]  Furthermore, Jonathan Rauch believes that arguments against hate-speech have grown more modest, eschewing prohibitions on discriminatory speech, and focusing instead on much narrower restrictions on “hostile environments.”[29]  Whatever the present state of free speech may be, we would be wise to heed the words of Michigan Supreme Court Justice Thomas Cooley, who wrote in 1868 that when speech “exceed[s] all the proper bounds of moderation, the consolation must be that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.”[30]  As the Court for the Eastern District of Michigan observed in Doe v. Michigan, Cooley’s words are no less relevant today than they were over one hundred and forty years ago.[31]

 

 

 

 


[1] Gerald Uelmen, The Price of Free Speech: Campus Hate Speech Codes, Markula Center for Applied Ethics (Nov. 19, 2013, 5:14 PM), http://www.scu.edu/ethics/publications/iie/v5n2/codes.html.

[2] See, Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, The Foundation for Individual Rights in Education (2013), http://thefire.org/public/pdfs/Spotlight_on_Speech_Codes_2013.pdf.

[3] Uelmen, supra, note 1.

[4] Doe v. Univ. of Michigan, 721 F. Supp. 852, 856 (E.D. Mich. 1989).

[5] Id. at 857, 858.

[6] Id. at 864-869.

[7] Id. at 868 (citations omitted).

[8] Id.

[9] Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2, at 7.  For a list of cases holding campus speech codes unconstitutional, see note 10 at page seven of Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2.

[10] Id. at 2.

[11] Jonathan Rauch, Kindly Inquisitors, Revisited, Reason, Dec. 2013, available at http://reason.com/archives/2013/11/15/kindly-inquisitors-revisited.

[12] Id.

[13] Sandy Hingston, A History of Political Correctness: 20 Years After Penn’s “Water Buffalo” Incident, Philadelphia, Apr. 28, 2013, available at http://www.phillymag.com/articles/penns-water-buffalo-incident-20-years/.

[14] Rauch, supra, note 11.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] See, Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2.

[26] Id.  As a matter of pride, the author would like to point out that his undergraduate alma matter, the University of Tennessee, is one of only fifteen universities that, according to the Foundation for Individual Rights in Education, imposes no serious restrictions on freedom of speech.  Id. at A-6.

[27] See generally, Foundation for Individual Rights in Education, http://thefire.org.

[28] See, Hate Speech on Campus, The American Civil Liberties Union, Dec. 31, 1994, https://www.aclu.org/free-speech/hate-speech-campus.

[29] Rauch, supra, note 11.

[30] Doe v. Univ. of Michigan, 721 F. Supp. 852, 869 (E.D. Mich. 1989) (citing T. Cooley, A Treatise on the Constitutional Limitations 429 (Da Capo ed. 1972) (1st ed. 1868)).

[31] Id.

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

By: John Gamble

Alabama’s Anti–Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”[1] However, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[2] That vague exemption has actually proved quite a significant roadblock to enforcement of the law.

In 1998 the Alabama legislature passed the Anti-Obscenity Enforcement Act ostensibly to deal with a serious public nuisance in the state, the commerce of dildos and other like objectionable devices. The legislature justified the necessity of the act stating, “That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores . . . the sale and dissemination of obscene materials should be regulated without impinging on [the] First Amendment . . . .”[3] Similar justifications were used by Texas in their comparable sex toy law, to no avail when the validity of the Texas law was brought before the Fifth Circuit Court of Appeals.[4]

Alabama’s previous Attorney General, Troy King, thought the sex toy issue one of such importance to fight a long and costly legal battle spanning almost a decade, in order to rid the state of these corrupting rubber menaces. However, that battle produced a rather pyrrhic victory when the state won its case before the Eleventh Circuit. Because not only was the decade long legal dispute undoubtedly expensive, but likely produced little results in terms of actually enforcing of the law. The law, vaguely written in general, contains the aforementioned key exception that allows the sale of sex devices for “a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[5] Many sex toy shops continue to operate in the state currently hiding beneath this broad and vague exception.[6] And in fact, the “attorney general’s office has never prosecuted a store for selling to a customer who said the purchase was for one of the approved reasons.”[7] Apparently, that loophole in Alabama’s law is quite large, large enough for a Sex Toy Drive-Thru to do a successful business in Huntsville in the immediate aftermath of the state’s successful defense of the law.[8] Increased liveliness in Alabama’s political rhetoric may be the only positive result from the law. The Libertarian candidate for governor in 2006, Loretta Nall, began a sort of dildo drive entitled “Sex Toys for Troy” in 2007, which called for citizens to voice their disagreement with the law by mailing sexual devices to the Attorney General’s Office.[9] And while the idea of the former straight-laced Attorney General unwittingly opening packages packed full of adult inflatables of sundry colors and sizes might seem chortle-worthy, there is nothing comedic about the cost to the state’s coffers from the litigation nor is it comical that this sort of legislation contributes to Alabama’s image as the “laughingstock of the country.”[10] The Anti-Obscenity Enforcement Act particularly contributes to this image when we consider the unfortunate fact that the Act is not some outdated dusty old blue law freshly dug from the courthouse basement, but a law that was passed at the end of the Twentieth Century.

The Anti-Obscenity Enforcement Act was challenged almost immediately following its passage. During a convoluted legal battle in which the case pinged back and forth between the Eleventh Circuit and the Northern District of Alabama two appellate rulings from the Eleventh Circuit are particularly important in understanding the Eleventh Circuit’s attitude regarding the constitutionality of the statute. In Williams IV[11]the court was forced to evaluate the statute in light of new Supreme Court precedent, Lawrence v. Texas[12]. In Lawrence, the Court overturned a Texas sodomy statute on Due Process grounds.[13]Problematically, however, Lawrence contained all sorts of lofty dicta seemingly protective of privacy rights, but the majority did not clearly state what level of scrutiny the Court applied in striking down the Texas law.[14] The lack of a specific standard of review created quite an unusual problem given the importance of the three-tiered scrutiny system to due process/fundamental rights analysis.[15]Though Lawrence broadly reframed the right at stake, the decision did not do so clearly despite Justice Kennedy’s seemingly sublime libertarian proclamations including, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[16]

The Williams IV court distinguished the fact situation in Lawrence noting, “There is nothing private or consensual about the advertising and sale of a dildo.”[17]The Williams IV court also refused to conclude from Lawrence that sexual privacy is a fundamental liberty interest that would trigger strict scrutiny.[18]To determine this, the Williams IV court even conducted its own Glucksberg analysis, which of course resulted in Rational Basis review, as no fundamental right was found.[19] Thus, the Eleventh Circuit decided that because the Alabama law was based on only the trade of such sexual items that privacy was not implicated in a similar manner as the sexual conduct at issue in the Lawrence decision. Therefore, the Williams IV court had no difficulty upholding the Anti-Obscenity Act under Rational Basis Review.

More interestingly, the case returned to the Eleventh Circuit in 2007. The Williams VI[20]court again distinguished the commerce of sex toys from the situation in Lawrence. The court opined that because the private use of sex toys was not prohibited under the Alabama law, Lawrence did not govern the result. Despite the Lawrence endorsement of Justice Stevens’ view opining that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ,”[21] the Williams VI court again further extrapolated that Lawrence did not completely bar public morality as a rational basis for legislation. The Court noted, “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence If now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . .”[22]

However, the following year the Fifth Circuit had a different take on Lawrence when it interpreted a very similar Texas statute. The Fifth Circuit circumvented the ambiguity found in Lawrence regarding the level of scrutiny applied by the Court by applying the holding of Lawrence directly to the facts at bar in Reliable Consultants without regard for the standard of review.[23]However, though the standard of scrutiny was somewhat ignored, the Fifth Circuit’s opinion seems to read like Rational Basis Review. Regardless, Texas could not even overcome rational basis because aside from public morality, now insufficient according to the Fifth Circuit in the aftermath of Lawrence, Texas could advance only dubious government interests supporting the law including interest in protection of “unwilling recipients” of sex toys.[24] Unlike the Eleventh, the Fifth Circuit interpreted Lawrence as utterly barring public morality as a sufficient justification for a statute even under rational basis review.[25] They particularly noted the adoption of Justice Stevens’ view as controlling by the majority in Lawrence.[26] The Fifth Circuit continued to opine that just as public morality was insufficient to regulate private adult sexual activity in the home, as was the case in Lawrence, then public morality is also an insufficient justification for the Texas statute which restricted the same sphere of activity.[27]

With the unresolved circuit split, the extent of Lawrence undefined, and an absolute lack of interest by Alabama’s legislature in repealing the law, it seems the Anti-Obscenity Enforcement Act is around to stay for the time being. The Eleventh Circuit’s refusal to give Justice Steven’s language full effect is regrettable as it has contributed to a “plain silly”[28] law languishing in our state code until the People compel the legislature of Alabama to change it. But connoisseurs of such objects need not be totally crestfallen, a sex toy can still be purchased in the state with only a quick signature of a waiver affirming to use the device only for medical purposes. So far the Attorney General’s Office has not required buyers to make the arduous trek across state lines to Florida or Georgia.


[1]Ala. code § 13A-12-200.2 (West, Westlaw through 2013 Legis. Sess.).

[2]Ala. Code § 13A-12-200.4 (West, Westlaw through 2013 Legis. Sess.).

[3] Anti-Obscenity Enforcement Act, 1998 Ala. Acts 98-467.

[4]See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-746 (5th Cir. 2008) (explaining that no “rational connection” exists between the Texas statute and the protection of children nor does such a connection exist regarding unwilling adults who must make an “affirmative decision” to purchase such a device).

[5]§ 13A-12-200.4.

[6] Mike Brantley, Alabama Sex Toy Ban: Court Rejects the Challenge, (Sep. 11, 2009, 3:41 PM),http://blog.al.com/live/2009/09/alabama_court_rejects_challeng.html

[7]Id.

[8]Jay Reeves, Sex Toy Drive-Thru Opens after Long Legal Battle in Alabama, (Dec. 30, 2010, 5:30 AM),http://www.huffingtonpost.com/2010/12/30/pleasure-sex-toy-drive-thru-alabama.

[9]Nall Adds Humor to Sex Toy Debate, The Tuscaloosa News (Nov. 16, 2007, 3:30 AM), http://www.tuscaloosanews.com/article/20071116/NEWS/711160301?tc=ar

[10]John Archibald, Alabama Rep. John Rodgers Out to Bust the Sex Toy Ban (Jan. 20, 2008, 6:57 AM),

http://blog.al.com/archiblog/2008/01/alabama_rep_john_rogers_out_to.html (quoting Representative John Rogers, who has twice unsuccessfully tried to repeal the current statute).

[11] Williams v. Att’y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[12] Lawrence v. Texas, 539 U.S. 558 (2003).

[13]See id. at 562-564.

[14]See generally William C. Hayes, “Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas, 44 Ga. l. Rev. 245, 259 (2009) (noting both that Justice Kennedy’s majority seems to have completely ignored the two-part Glucksberg fundamental rights test and that lower courts have been confused by Lawrence’s precedential value).

[15]See U.S. v. Virginia 518 U.S. 515, 567-568 (1996) (Scalia, J., dissenting) (explaining strict scrutiny is applied to state classifications affecting fundamental rights as determined by the Court and noting that such, in his view, “’fundamental rights’ should be limited to ‘interests traditionally protected by our society’”); see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality, Scalia, J.); for more on the Court’s traditional recognition of narrow fundamental rights see Washington v. Glucksberg 521 U.S. 702, 721 (1997).

[16]Lawrence at 562.

[17] Williams IV at 1237 n. 8.

[18]See id. at 1238 (explaining that Lawrence was actually a rational basis decision).

[19]Id. at 1242 (defining the right at issue in the case as “the right to sell and purchase sexual devices”).

[20] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[21] Lawrence at 577.

[22] Williams VI, 478 F.3d at 1323 (citing Williams IV, 378 F.3d at 1238 n. 8).

[23]See Reliable Consultants at 744.

[24] Id. at 746.

[25] Id. at 745.

[26] Id.

[27] Id.

[28] Williams IV at 1251.

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