Federal judiciary declines to extend cameras in courts program

The ability for the public to view the judicial branch in action took a step backward this week. After a four-year pilot program in which 14 federal trial courts voluntarily recorded and published civil proceedings online, the federal judiciary decided to not continue the program. The full report can be found here.

In recommending to maintain the current ban on cameras in federal district courts, the Committee of the Judicial Conference of the United States cited the affect of cameras on witnesses, low levels of interest, and high costs, according to The Washington Post.

Fix the Court, a national organization committed to court access and transparency, responded to the recent decision. Fix the Court’s executive director Gabe Roth said:

“This is a disappointing decision, as the benefits of video-recording federal trials are obvious to any one of hundreds of thousands of people across the country who watched the proceedings recorded during the pilot.”

Unlike federal trial courts, federal appellate courts have progressed in their openness. All 13 federal circuits record audio of court proceedings, and the U.S. Court of Appeals for the Second and Ninth Circuits permit video coverage.

The U.S. Supreme Court continues to remain resistant to public accountability, fighting efforts to open the nation’s highest court. The high court sustains a strict no camera or audio recording policy for members of the public. The Court itself records oral arguments, but the recordings are typically not published until the end of each week. The Court released same-day recording in April 2015 for the Obergefell v. Hodges same-sex marriage case. However, the Court did not publish same-day recordings for the Whole Woman’s Health v. Hellerstedt abortion case earlier in March.

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U.S. Supreme Court rules specialty license plates are government speech, Texas’ prohibitions allowed under First Amendment

The United States Supreme Court, in a 5-4 decision, held today it is constitutional for the Texas Department of Motor Vehicles to reject proposals from the Sons of Confederate Veterans for speciality license plates featuring Confederate battle flags. The Court determined that specialty license plates are government speech; therefore, according to the Court, Texas was permitted to refuse the license plates based on the content of the designs from the Sons of Confederate Veterans.

Flanked by Justice Thomas, Ginsburg, Sotomayor, and Kagan, Justice Breyer delivered the majority opinion. Justice Alito filed a dissenting opinion joined by Justice Roberts, Scalia, and Kennedy. The following paragraphs were taken from Justice Breyer’s opinion found here:

Case summary: 

“Texas offers automobile owners a choice between general-issue and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas. Here, the Texas Division of the Sons of Confederate Veterans and its officers (collectively SCV) filed suit against the Chairman and members of the Board (collectively Board), arguing that the Board’s rejection of SCV’s proposal for a specialty plate design featuring a Confederate battle flag violated the Free Speech Clause. The District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design.

Held: Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design.”

Quotes from Justice Breyer’s majority opinion: 

“…[G]overnment statements do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005).

We have therefore refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”

That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech. Summum, supra, at 468. And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.

Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.

And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. * * * For the reasons stated, we hold that Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is . . . Reversed.”

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Quotes from Justice Alito’s dissenting opinion:

“This capacious understanding of government speech takes a large and painful bite out of the First Amendment.”

“. . . [T]he precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

More reaction from the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., can be found at:

Eugene Volokh explains hate speech’s protection under the First Amendment in light of Texas shooting

Last week’s shooting during a Muhammad cartoon competition in Texas led to the media bringing up the often-misunderstood topic of hate speech and its level of protection under the First Amendment.

UCLA law professor Eugene Volokh cleared the record for readers of The Washington Post’s Volokh Conspiracy in an article found here. He stated:

“[T]here is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.”

Volokh went on to explain the difference between hate speech and some forms of unprotected speech, such as fighting words, true threats, and incitement. He pointed out that hate speech may be frowned upon by society, but it is still protected under the First Amendment:

“U.S. law has just never had occasion to define ‘hate speech’ — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.”

For more on the intersection of the Texas shooting and the First Amendment, check out these articles:

Attorney explains why SAE’s hateful speech must be protected

I considered writing a blog post about the recent story of the University of Oklahoma expelling members of the SAE fraternity for chanting racial slurs. I was going to write about how even though I hate the hate speech, the students should not be kicked out of school by a public University (a state actor under the Constitution) for their expression. I was going to explain how the First Amendment is present to shield dissenting, not popular views as long as the expression doesn’t cross into an area of unprotected speech: obscenity, true threats, incitement to violence, child pornography, or defamation. I was going to remind readers how past unpopular speech has now become the popular views of society.

But then I saw a piece from CNN in which attorney Marc J. Randazza summed up my views and expounded upon them in an articulate column. I recommend you read “What we risk when we ban racist speech” from Marc Randazza to help understand why the offense speech of SAE is protected under the First Amendment.

Once, speech in favor of racial equality was considered to be “bad speech.” Once, professors were kicked off campus for not being “anti-gay enough.” But, today, the thought of equality and tolerance have won out in the marketplace. Let that victory stand, without trying to cement it with the force of law, and without destroying the very liberty that allowed these “good thoughts” to flourish in the first place.

Do display-and-describe requirements infringe free speech rights of abortion providers?

In a new post for the LLR Lagniappe, the blog of the Louisiana Law Review, my colleague Lauren Tracy discusses the current circuit split on what the government can demand from abortion providers prior to an abortion. In her blog post, “Give It to Me Straight, Doc: Circuits Split on Whether Abortion Requirements Violate Doctors’ Free Speech Rights,” Tracy recounts the December case of Stuart v. Camnitz in which the Fourth Circuit Court of Appeals struck down part of the North Carolina Woman’s Right to Know Act. This decision created a circuit split among the Fourth, Fifth, and Eighth Circuits. In Stuart, the Fourth Circuit held that the “display-and-describe” requirement of the Act was unconstitutional.

The stricken portion, the Display of Real-Time View Requirement, required an abortion provider to perform an ultrasound on a woman seeking an abortion, to display the resulting sonogram so that the woman may view it in real time, to simultaneously describe certain aspects of the sonogram’s contents to her, and to offer her the opportunity to hear the fetal heartbeat.

For more on Stuart and the conflicting cases from the Fifth and Eighth Circuits, read Tracy’s blog post on the Louisiana Law Review Lagniappe.

Update: The U.S. Supreme Court denied cert in Walker-McGill v. Stuart on June 15, 2015. This means the Supreme Court—at least for this term—will not hear the case and clear up the disagreement on the constitutionality of the display-and-describe requirements.