June 2014 podcast: Several recent Supreme Court decisions could have impact on student journalists

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Jonathan Peters, law professor and Columbia Journalism Review correspondent, joins Student Press Law Center Executive Director Frank LoMonte to discuss the impact of several recent Supreme Court decisions on students and student journalists.

Frank LoMonte: Welcome to the Student Press Law Center podcast, a monthly rundown of developments of interest for the folks working in student media. I’m Frank LoMonte, the executive director of the Student Press Law Center. You can find out all the latest legal developments affecting your rights to gather and publish news on our website at splc.org.

We’re here with Jonathan Peters who is a law professor and legal commentator to talk about the concluding session of the U.S. Supreme Court. Just like journalists, the Supreme Court justices do their most productive work on deadline and we’re here no the dying days of June 2014, taking stock of the term that’s about to conclude with the end of June. The court typically tries to get all of its opinions of the term out the door before they leave for the summer at the end of June and some of the most watched cases are the ones that trickle out in the last few days.

We’ve had a number of cases over the last few years that were First Amendment blockbusters. You can look back at cases like the Snyder v. Phelps case about the Westboro baptist church protesters and their right to engage in virulent hate speech outside of military funerals, the Brown case about legalizing the sale of violent video games to minors, the Alvarez case about legalizing false speech involving claiming military honors that a political candidate had not genuinely won.

This term has not had the marquee First Amendment cases perhaps on par with those, but it’s an interesting one nonetheless and we want to discuss this with Jon Peters today.

Jonathan is a media law professor actually just ending a term at the University of Dayton and about to start one at the University of Kansas. He is a Phd. in journalism from the University of Missouri in addition to being an attorney and he’s a widely published author and commentator with articles in the Atlantic, The Nation, and in many journalistic and scholarly publications. We’re really delighted to have him here.

So, Jon, let me just throw it to you and we’ll talk, for starters, about a case in which the Student Press Law Center filed a friend of the court brief, one that involves an interesting procedural issue in who can and can’t sue to vindicate their First Amendment rights and that was the case of Susan B. Anthony List v. Driehaus. Can you kind of set us up a little bit what that case was about?

Jonathan Peters: Sure, Frank, yeah, thanks. I think you’re right on point to characterize this term’s free speech cases as not the marquee blockbusters that we’ve seen in the last couple of years, at least in so far as they’re not as sexy—you know it’s cases like Synder. But, Susan B. Anthony is, I think, procedurally, a really important case and one that has particular importance for students whether you’re a student journalist or just and average student in high school, middle school, whatnot.

The central issue in the case was whether the government may punish false political statements or whether such falsehoods are entitled to First Amendment protection. So, that’s kind of the central issue, but the issue that you have to reach before you get to that one is a more threshold one (sp?) and that is when a law forbidding that sort of thing, such as a false political statement during a campaign, when you can challenge that law, whether the challenge has to outweigh the outcome of a prosecution under that law, or whether you can instead proceed as long as the speaker feels that his free speech rights are chilled by the very existence of the law. So, legally speaking the question is just one of judicability. Is the issue right for the decision? And the facts in this case, they arose out of a dispute in 2010.

It was a reelection campaign for a representative from Ohio. He complained to the Ohio Elections Commission. It was after a nonprofit, anti-abortion group, the Susan B. Anthony List, planned to run it was billboard advertising in this representative’s district saying that his vote for the Affordable Care Act was the functional equivalent of a vote for tax-payer funded abortions. The billboard company said it wouldn’t run the ad. They said they wouldn’t run the ad right after a lawyer for the representative contacted the billboard company and raised the possibility of legal action.

But apparently because the ad was still a possibility, the rep went ahead with his complaint to the Ohio Elections Commission. There was a panel of the commission that issued a finding of probable cause that the proposed ad violated the law and then referred the matter to the full commission for a hearing.

It’s at that point where the Susan B. Anthony List filed suit in federal district court to block both the commission hearing and the enforcement of the law. The district court declined to stay the commission’s actions. The parties agreed to put of the hearing until after the election. The rep ended up losing his reelection bid. The commission process ended, but the SBA List, it amended its federal court complaint to contend that its free speech had been chilled by the commission proceedings themselves.

There was a factual situation unfolding at about the same time involving the coalition opposed to additional spending and taxes, which planned to disseminate virtually the same message about the same representative. So, that group filed suit in federal court too. The rep did not actually file a complaint against that group with the commission, but the group still said that it withheld its messages about the representative because it felt the chill from what the commission had already done with the SBA List.

So, if you then kind of get out of the facts and begin to look at the arguments being made and what the court ultimately said, in addressing the question of: when can you sue for constitutional violation, here specifically arising under the first amendment, there was some existing confusion in the law about whether you needed to prove a substantial risk of harm or whether you needed to prove that there was certainly impending harm and if you could meet one of those tests it seemed to mote that, therefore, you could sue. What this case does is crystalize the standard or really the standards that you can use.

So, in the opinion, it says that an allegation of future injury may suffice if the threatened injury is certainly impending or there is a substantial risk that the harm will occur. So you know, using that kind of disjunctive, the de facto burden would be to prove only substantial risk because there’s always a substantial risk if there is certainly impending harm.

I think, to hit another point that you touched on in your intro, which is why do we care about this in relation to students? What’s the special impact there? I think that the SPLC amicus brief really persuasively and it’s the fact that as somebody who has been a college professor for a couple years now—and obviously we’ve all at one point been students, K-12 students—students are surrounded day to day by authority figures and they are affected, I think, more deeply and personally by rules and regulations and the resultant chills on speech that they can create than perhaps the average adult might be going day to day. So, that’s one, I think, dimension of this. Students are more susceptible to chilling effects than adults.

The other is that without broad pre-enforcement standing rules, a lot of these student speech cases, they would be mooted before you could ever reach the merits of the case because students graduate. You graduate from middle school. You graduate from high school. So, I think yeah, this has really special importance to students.

Frank LoMonte: Sure, and just to reinforce that point, that was sort of the importance that the impelled the Student Press Law Center to get involved was this had the opinion below from the Sixth Circuit become the prevailing legal standard, you virtually would have had to go ahead and actually incur the government punishment first, and then challenge it afterward because it’s so difficult to prove that it is certain or inevitable that you will be punished without actually following through and suffering the punishment. So, had the Sixth Circuit view of the law prevailed, you really would have almost been saying goodbye to the ability to bring a facial constitutional challenge to a statute before it is actually enforced against you.

So, this certainly keeps alive the ability to do that for all plaintiffs, but most especially, as you point out, for students and other who might have any femoral claim to having standing and whose standing might evaporate overtime. So, in those cases in particular, it’s often essential to be able to challenge the statute on its face without waiting for it be enforced against you.

I might point out, each of the cases we’re going to talk about here, was a real rarity because they were nine-to-nothing decisions of the court, which in and of itself is rare enough, but nine-to-nothing decisions in favor of individual liberties, and it’s often especially hard to get the court together around one of those.

But, another one, which sort of pulled together a rather surprising consensus was the Lane v. Franks case and the SPLC and other groups like it often find themselves defending the rights of educators, public employees, to speak about matters that the learn about on the job and that’s what the Lane v. Franks case entailed. So I guess if you don’t mind, just explain a little bit about the factual setting for Lane and the issue of employee speech rights that the court ended up deciding.

Jonathan Peters: Yeah, in Lane v. Franks, the plaintiff was a former employee of a community college in Alabama, and he filed a lawsuit alleging that he was fired in retaliation for testifying against a state legislator who had been charged with fraud. And what the community college employee had found, he was the director of a program within the college for at risk youth, when he was reviewing some of the books related to the program’s budget, he found that a state legislator was actually on the books as someone drawing a salary.

So, he realized that this person doesn’t actually have an employment relationship with my program and wasn’t doing any work for this. So, then the legislator was charged with fraud. He ended up appearing in court to testify about what he had seen, what he was aware of and a federal district court granted summary judgement to the president of the college, who fired the employee who had testified and the district court was relying on qualified immunity to rule in favor of the college president, but also found that the employee who had testified had spoken in his capacity inso testifying as a public employee, which therefore deprived him of First Amendment protection, according to the district court.

The Sixth Circuit, when it got kicked up there, agreed with the district court in that Lane’s speech was not protected. The appeals court applied the Supreme Court’s that the speech of public employees is protected only when the employee is speaking as a citizen and about a matter of public concern. The Sixth Circuit spent no time considering the qualified immunity issue and it was unclear initially whether the Supreme Court would reach qualified immunity questions at all in the case

So in the opinion, which you said was unanimous, written by Sotomayor, the court concluded that the employee of the community college did have First Amendment protection for his testimony in the criminal prosecution resulting from fraud in the program that he directed, where the court I think a matter of equity and policy, I’m sure on some level said, “how inequitable would this be if we said to somebody, ‘if you testify truthfully, in a federal court proceeding about fraud, that yeah you know your employer can fire you for that.’” It just doesn’t sit well in the mind’s eye. But, legally, so the court basically held two things: it said the First Amendment, the free speech clause, will prohibit a supervisor in a state organization from firing an employee on the basis of that employee’s truthful testimony in a federal criminal proceeding when the employee was acting outside his ordinary job duties. Now, the second holding is that the supervisor was nonetheless entitled to qualified immunity because the first holding in about the scope of the First Amendment, had not been clearly established, according to the Supreme Court, by the law of the Supreme Court or the court of appeals.

Frank LoMonte: And let me spot you there. The holding that you described exactly the way Justice Sotomayor in the opinion described the scope of the ruling, which was that an employee is going to be protected when giving testimony in a criminal proceeding, which clearly, as the justice explained, is not within anybody’s normal job description as a government employee. In fact, as she pointed out in the opinion, any one of us as a citizen, could be subpoenaed to give testimony in a criminal case, so you can hardly say that giving evidence against someone who has committed a crime is somehow a part of your job description. So, if that’s the way that the case is understood. Then it’s a really rather narrow ruling because, after all, how many people are going to lose their jobs after giving testimony in criminal cases. One hopes that that’s not a frequent occurrence, but it’s possible actually, I think, to read the opinion a little more broadly than that and to read it as sort of a narrowing gloss, if not on the Supreme Court’s Garcetti opinion—the case that it’s based upon, but maybe at least a narrowing gloss on the way some lower courts have been applying that Garcetti opinion, which is all about when speech is or is not a part of your official job duties. Right?

Jonathan Peters: Absolutely, I think that one of the important distinctions made in the case is the distinction made between, you know, speech that is part in parcel of a job duty and speech that relates to information or knowledge that you gained at work, which are two fundamentally different things and I think in this case could apply with special importance to teachers, public school teachers and professors.

So, Garcetti really was silent on that point, where Sotomayor even wrote in the opinion that Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. So, yeah, I think that is your broadening language because what you have when you look out over the circuits that have decided cases relying on Garcetti, is you can really put these cases—and I may be oversimplifying a bit here—in the two different camps. One camp is a really broad mandate that favors very liberal rules, well very liberal applications of Garcetti, and the other is the a quite narrow reading focusing on the distinction that before this case had not been acknowledged by the Supreme Court in part because Garcetti was the last major statement on the free speech rights of public employees. In the intervening years, the court punted on a number of cases, denying cert, where it could have crystalized this long ago, but did not. So, while this is late, it’s certainly is a welcomed case.

Frank LoMonte: Well let’s just take a minute or two to just give a nod toward the third case that I wanted to mention, a constitutional case that’s not a First Amendment case at all, but a Fourth Amendment case involving under which circumstances the Supreme Court may and may not look inside of a smart phone in the course of making an arrest. Again, not at all a student case, not at all a school case, but one which may have reverberations in the school context where phones are very frequently being seized and searched by authorities, that’s the Riley v. California case. I’m just going to, in the interest of time, shortcut the facts of that case.

This was sort of a classic traffic stop case that morphs into a criminal arrest. A person is pulled over for a traffic offense. The police find concealed weapons. That becomes the basis for the arrest. During the course of that arrest and subsequent search of the suspect, his smart phone is found. The contents are viewed by the police who see some photographs and some messages that they think connect him to a gang related shooting and he’s then implicated in that more serious crime. He tries to suppress the evidence saying that these were the fruits of an unlawful search in violation of his Fourth Amendment rights, and again, a unanimous Supreme Court comes back and tells us that he had a good constitutional claim, that the search went to far because the nature of a smartphone, being what it is, was just a more kind of qualitative search than asking to look inside somebody’s wallet or day planner or calendar. So, I guess, what do you see, Jon, as sort of the larger potential importance of a case where, for the first time really, the court was grappling with smartphone technology and with the capabilities of it in the Fourth Amendment context?

Jonathan Peters: I think the most important point made in the opinion is that digital technology is different, where many of the analogies that the government had attempted to draw between physical items and digital items, the court rejected, you know, across the board.

The basic issue is, as you said, whether law enforcement need a search warrant to examine the contents of a cell phone, which they seized during the arrest. So what a number of government attorneys had argued was that, “well, it’s like a bag search. I arrest you. I can search your bag.”

But what I think that ignored, and the court gladly points this out, is the policy rationale for searching bags. Really, the purpose is two-fold: one is to allow the police to preserve evidence that might be used in court, and then the other is to protect the safety of the police officers. Neither of those things really applies in full force to a cell phone. The one that would would be preserving evidence. The court said there are more tailored means to do that rather than just rooting through the phone and searching and seizing at will.

In a broad journalistic context, it’s stating the obvious to say that cellphones, smartphones, tablets, there are integral parts of news gathering today, where we use them not only to capture video and photos, but if, let’s say, I use dropbox to store story notes and drafts and source notes and things like that. If you grab my cell phone, open up my dropbox app, you viewed potentially unpublished work product that could implicate the Federal Privacy Protection Act of 1980 if I’m a journalist and that applies with equal force to student journalists. It applies as well to students, where you and I both know that students do not get the same level of Fourth Amendment protection. They do get it in schools, but not at the same level as an adult and no in a school setting.

What I would hope this case would do would send the message to them, the broad one, that digital devices are different. This is not a backpack, this is not a locker search. This thing, as the court said—I forget the exact phrase the Roberts used for the proverbial martian who comes down—that that martian could view this as a very important part of human anatomy. So, I hope that that fundamental difference would chasten the willingness of school officials to rampantly search as they do in some places.

Frank LoMonte: Well, Jon Peters, thanks so much for this informative rundown of the winding down term of the U.S. Supreme Court, some good favorable rulings, helpful rulings that may be a benefit to all students including student journalists as we see how these play out in the lower courts. As we thank you, I also want to invite folks to follow Jonathan Peters on Twitter. It’s @JonathanWPeters. Jon has recently taken on yet another role as the press freedom correspondent for Columbia Journalism Review and you can follow his legal analysis at CJR. We also of course hope you’ll follow the SPLC.