Archive for the 'First Amendment' Category

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Minnesota law banning emails and other communications for 50 years is constitutional

December 28, 2011

When a Minnesota court orders that an alleged domestic abuser cannot email, message, or otherwise contact the victim for 50 years, there is no First Amendment violation, according to a Minnesota Court of Appeals decision issued Monday.

A Minnesota man brought an appeal to challenge a law that authorizes courts to issue “orders for protection” 50 years in duration under certain circumstances.  In the case, the man had pleaded guilty assault and violating a prior order that his wife sought for her protection.  After the husband served time for stalking and harassing another woman, he again was arrested for violating the order issued with respect to his wife.

So the court issued another order for 50 years, pursuant to a Minnesota statute that forbids an alleged abuser from having any contact with the victim “whether in person, by telephone, mail or electronic mail or messaging, through electronic devices, through a third party, or by any other means.”

The husband’s claim was that the statute constituted a prior restraint on his right to engage in expression.  The court of appeals disagreed, likening the law to those that provide protest-free buffer zones around abortion clinics.  The court observed that such laws ban conduct, not speech.  The court went on to explain that state government has a “strong intrest in preventing violence in a domestic setting,” and that the law was narrowly tailored because it “applies only to the most persistent abusers.”

Fifty years is, indeed, a long time.   But the court was correct to characterize the law as one addressing actions, not speech.  The law bans all contacts with the victim, regardless of what the alleged abuser might say.  And that, under the First Amendment, is permitted.

The decision is the second this month in which the court rejected First Amendment challenges to court orders arising from domestic relations.  Earlier in December, the court ruled that blogging about a former girlfriend can constitute harassment and that a Minnesota man could be ordered to remove his blog from the internet.

Posted in First Amendment, Internet law, Minnesota Law | Leave a Comment »

Occupy Minnesota wins partial victory in federal court

November 29, 2011

Cutting off electricity has nothing to do with the First Amendment, but sleeping outside Hennepin County Government Center does.  Even so, the Occupy Minnesota tents need to go.   But their signs can stay.  And the “chalking” needs to stop.

Those were among the rulings from federal Judge Richard Kyle, who last week handed Occupy Minnesota adherents a partial victory in their ongoing effort to occupy the public plaza outside the Government Center.

Interestingly, the judge’s “sleeping is speech” ruling was based on a decision from balmy Fort Myers, Florida, where a federal court ruled that “tenting and sleeping” was protected as expressive activity.  Hennepin County had suggested that banning sleeping in frigid Minnesota was a matter of public safety.  Apparently, Judge Kyle trusts Minnesotans enough to know when to come  out of the cold.

However, as I predicted, he cited a 1984 case in which the United States Supreme Court held that the National Park Service was within its rights to prevent protesters from sleeping in Lafayette Park across from the White House.  As the judge explained, government may ban sleeping in public because doing so is a “valid time, place, and manner restriction” that does not violate the First Amendment.

The judge would have none of Occupy’s argument that cutting off  electricity has anything to do with the First Amendment.  He also ruled that the county was within its rights to prevent “chalking” on plaza property.

But significantly, he ruled that the Occupy signs can remain and he ordered the county to not enforce a resolution that bans the signs.  The county’s resolution contains an exception for signs “placed by county personnel related to county business.”  The judge explained that “this difference is crucial” because it creates a rule based on content of signs — specifically what the First Amendment forbids.

The decision was extremely well-reasoned and fair and based in practicality.  As the judge explained, Occupy adherents “are unlikely to leave the Plazas anytime soon,” so he ordered the parties to mediate their dispute as soon as possible.

Posted in First Amendment, Occupy Minnesota | Leave a Comment »

The constitutional battle over a First Amendment right to sleep could begin tonight

November 14, 2011

Hennepin County’s ban on sleeping outside the county Government Center takes effect tonight, so arguments regarding the ban’s constitutionality might awaken.

This morning, Minnesota Public Radio quoted Hennepin County Board Chairman Mike Opat as saying the ban is proper because the constitution does not prohibit rules that preserve public safety.  That much is true.  But there does not appear to be an explanation for how public safety begins being at risk tonight, but was not at risk over the past month.  Maybe the county is trying to prevent protesters from freezing to death, even though frigid temperatures are not forecast.

I’ve blogged previously about the Occupy adherents’ and their “media” (specifically their handmade signs, which the county wants to remove) as well as about whether sleeping in a public area can be considered “expressive activity.”  On that last point, Occupy would find imporant authority in a 1984 United States Supreme Court case that left open the possibility that sleeping is, essentially, speech.

In that case, the protesters hoped to draw attention to homelessness by camping in Layfayette Park, a national park across from the White House.  So too with the Occupy Minnesota protesters, for whom residential home foreclosures are chief concern.  And on the foreclosure issue, Occupy Minnesota has rightfully claimed success.

The 1984 case is very much on point.  Earlier this month, Occupy Sacramento recognized that when challenging a Sacramento city ordiance ordinance that prohibits staying in parks overnight.  In a Nov. 4 decision, a federal judge in California acknowledged the 1984 case and that “the act of sleeping out could all be expressive activity,” but explained that “nonetheless” the United States Supreme Court permitted the National Park Service to remove the slumbering protesters.  For that reason (among others), the federal judge refused to enjoin the Sacramento ordinance’s enforcement.

So Occupy Minnesota adherents do have a “sleeping is speech” argument should they be arrested.  But the battlle might be tough.

Posted in First Amendment, Minnesota Law, Occupy Minnesota | Leave a Comment »

Iowa leaves Minnesota in the dust with protections afforded to student newspapers

November 10, 2011

Neighboring Iowa and its appellate courts have led the way on issuing courageous, well-reasoned decisions that protect important rights.  First came gay marriage.  Now it’s students’ free expression.

On Wednesday, the Iowa Court of Appeals issued a decision that unambiguously protects the rights of high school students to learn journalism by doing, and also affirms the right of faculty advisers to let that learning happen.

At issue was the Iowa Student Free Expression Law, which the Iowa Legislature passed in 1989 in response to the United States Supreme Court’s decision in Hazelwood v. Kuhlmeier.  Hazelwood generally gave school administrators broad discretion to censor student newspapers, despite the Frist Amendment.  In response, Iowa and eight other states (not Minnesota) passed laws protecting students’ rights “to exercise freedom of speech, including the right of expression in official school publications.”  Exceptions arise when expression is obscene, libelous, encourages law- or rule-breaking, or encourages “substantial disruption of the orderly operation of the school.”

The law also expressly forbids “prior restraint of material prepared for official school publications,” specificies that student editors have the final say, and limits advisers’ roles to supervising “production” and maintaining “professional standards of English and journalism.”

The case that led to Wednesday’s decision arose in Waukon, Iowa, where the newspaper’s faculty adviser was reprimanded for an April Fools’ parody editon of the paper as well as a non-parody story about students who chew tobacco, which the school’s adminsitration contended had caused “material disruption” of the school.  The 25-page court decision recites some of the complained-of conduct, including the students’ “derogatory twist” of a rival school’s mascot name “Kee Hawks” into “Keysucks.” 

The appeals court explained that there was no evidence that the newspaper content had encouraged breaking the law or rules.  For example, with respect to the Keysucks name, the school district’s attorney “was unable to explain” how the twist had caused any disruption.  Rather, the school administration’s concerns were entirely speculative.  The court also held the content was not libelous and did not violate the “professional standards of journalism.”  The judges also took the remarkable step of ordering the school district to remove the advier’s reprimands from his employment file, explaining:

The purpose of section 280.22 is to allow students broader free expression. If a school district is entitled to sanction a journalism advisor for student publications that comply with section 280.22, the statutory protections will be eroded and student speech will be chilled. Removing the reprimands from Lange‟s personnel file is necessary to protect the free speech rights of Iowa students as contemplated by Iowa Code section 280.22.

On a day when when Facebook is alive with chatter about how poorly Penn State students have behaved after a football coach’s firing, it is somewhat incongruous to trumpet a win for the rights of students.  But in the end, students need to be trusted to do the right thing, and to learn by doing, and to recognize parody on the Daily Show, in The Onion, or in their school newspaper.

Posted in First Amendment, Media Law, Minnesota (not) | Leave a Comment »

And … Occupy Minnesota’s signs are still there

November 5, 2011

New Occupy Minnesota signs were tacked to county property on Friday, the day they were to come down. (Photo by Steve Aggergaard)

Hours after Occupy Minnesota signs were supposed to come down pursuant to Hennepin County’s “winterization” policy, they were still there.  In fact, the banner pictured above appears to be a new sign, taped to county-owned light posts.

What gives?

The Uptake, a treasured citizen-journalism website, has a great video explaining what appears to have happened.  Apparently the county removed the signs Friday morning, which prompted Occupy adherents to put them back up, which resulted in security officials again taking them down and putting them in a pile. But seven or eight adherents locked arms and blocked access to the signs, which—according to the video—prompted security officials to confer with county board.  And …

There were no arrests.  And the signs went up.  And, as of last evening at least, they have stayed.

Pamphlets and signs are the purest form of protest media, and it will be interesting to see how the various First Amendment issues are resolved.  The Uptake’s video suggests the American Civil Liberties Union of Minnesota is considering a “class-action lawsuit” on behalf of the adherents.  There’s no such mention on the ACLU’s website, so we’ll see how that shakes out.  Class actions are not easy to maintain, particularly on an “emergency” basis.

If there is legal action, a hurdle for Occupy might be who, exactly, has the legal right—the “standing”—to litigate the issue.  Ironically, if Occupy Minnesota were to incorporate as a nonprofit corporation, it would be a lot easier for Occupy as a corporate “person” to assert that its adherents’ constitutional rights are in jeopardy.

But of course, as the photo above demonstrates, corporate personhood tops the list of Occupy adherents’ concerns.  The opposition will make it more difficult for Occupy to go to court to obtain a “declaration” that the Hennepin County policy violates the First Amendment.  Rather, individual persons might need to actually be arrested and then argue, essentially from jail, that their individual arrests were unconstitutional.

Judging from Friday’s events, Occupy adherents appear poised to go that route if need be.

Posted in First Amendment, Media Law, Occupy Minnesota | Leave a Comment »

Hennepin County says the Occupy signs must go. But where can they go?

November 4, 2011

Beginning this morning, Hennepin County says it will enforce new rules for Occupy Minnesota adherents, apparently as part of the county’s effort to “winterize” the county-owned plaza where adherents have camped, protested, and affixed signs.

An Occupy sign, planted in a publicly-owned planter Thursday evening.

Adherents are claiming a First Amendment right to engage in their efforts.  Earlier this week, I blogged about whether the First Amendment protects a right to sleep in a public place when, as here, protesters hope to draw attention to the fact that some people (i.e. Minnesotans subject to foreclosure) risk having nowhere warm and dry to sleep.

Now the county plans to ban overnight sleeping when the temperature dips below 25.  It’s a new wrinkle because it’s not clear how cold temperatures are relevant to the “time, place, and “manner” restrictions the county likely may impose consistent with the First Amendment.

But the county also plans to ban signs from being affixed to county-owned benches, fountain, and planters.  Entirely, it appears.  Government, of course, owns those things.  But what is “government,” anyway?  That’s among the Occupy adherents’ points, I think.  If the public owns the benches, fountain, and planters, all made with material that can and will withstand a little masking tape, who’s to say what gets to be affixed there?  And by leaving no avenue for posting signs on government property, there does seem to be a First Amendment concern.

The American Civil Liberties Union of Minnesota has come to the Occupy movement’s aid.  While not representing the adherents, the ACLU rightly points out that the broadest First Amendment protections are aimed at “political expression.”  While the legal support in the ACLU’s letter is eyebrow-raising because it consists of cases involving obscenity, the rights of a white separatist’s movement, and a newspaper-box licensing scheme, the ACLU’s core message is spot-on.

Political speech is different.

Posted in First Amendment, Occupy Minnesota, Politics | Leave a Comment »

Wisconsin photographer’s arrest sends a reminder: journalists enjoy no special rules

November 3, 2011

A Milwaukee newspaper reporter’s arrest at an Occupy protest is the latest reminder that even though most working journalists carry press passes and other credentials, in the end they enjoy no special privileges in Minnesota or anywhere else.

And arguably, they shouldn’t.

The First Amendment is rooted in the idea that a free “press” must be free from governmental control.   As this month’s newsletter from the National Communication Association explains in an article titled “Celebrating the First Amendment, Thank you, James Madison!”:

The English kings and queens had tried to enforce prior restraint through their system of licensing printers; in other words, if a printer did not have a license from the Crown, he could not print anything at all. Printers who defied the Crown could be have their ears cut off or their noses split; they could be branded with a hot iron, or they could be drawn and quartered.

 A core problem with government awarding privileges to journalists is that it is the government that gets to decide who is and who is not a journalist.  There is a good argument that entrusting government to make such decisions is as troublesome as the British Crown’s licensing scheme.

That being said, if a journalist is targeted for arrest because he or she is a journalists (or a blogger, or an iPhone photographer, etc.), that raises a whole other set of problems.  It’s not clear whether that set of facts was present in the Wisconsin arrest.

Posted in First Amendment, Media Law | Leave a Comment »

Is sleeping outside Hennepin County Government Center “speech”?

October 30, 2011

By sleeping outside the Hennepin County Government Center, Occupy Minnesota adherents are sending a message through what they are doing as much as what they are saying.  And it’s possible, but likely not probable, that the First Amendment protects their acts.

It is not entirely clear whether sleeping in a public place is, essentially, speech.   In 1984, the United States Supreme Court held that the National Park Service could regulate the “time, place, and manner” of protests in Lafayette Park across from the White House and therefore could prohibit overnight sleeping.  But interestingly, the court “assumed for present purposes” that sleeping in connection with a demonstration is “expressive conduct protected to some extent by the First Amendment.”  And two civil-rights-focused justices, Thurgood Marshall and William Brennan, wrote a dissent persuasively explaining why those particular protests should have been protected as speech:  because by sleeping outside, the protesters were trying to draw attention to homelessness.

Similarly, Occupy Minnesota protesters hope to draw attention to people who have been made homeless through foreclosures.  And to that end, the Minnesota effort has rightfully claimed some success.

But should the protesters’ rights be litigated in court, lawyers will have a tough time arguing that Hennepin County has no right to regulate the time, place, and manner of protests.   The other side likely would cite a 2008 federal-court decision where the federal court in Minnesota cited the Layfayette Park case to help explain how and why the City of St. Paul had a right to regulate protests outside the Republican National Convention.

Of course, Occupy Minnesota would be free to argue that the federal court got it wrong and that this situation is different.  And in some ways, it most certainly is.

Posted in First Amendment, Occupy Minnesota, Politics, RNC | 1 Comment »

Chris Cook’s name was mud from the start

October 26, 2011

Vikings cornerback Chris Cook has now been charged with felony domestic assault.  Without question, the charges are chilling and disturbing.  But they are just that, of course.  Charges.  Cook has yet to be tried, and on paper he’s innocent until proven guilty.

But in the paper — in the newspaper — innocence is lost when the suspect happens to be famous.

For example, over the weekend, a Star Tribune blog readily identified Cook by name as he sat in jail, waiting to be charged with assaulting his girlfriend.  Yet in a story from May, the Star Tribune did not identify two men arrested and accused of randomly robbing and beating pedestrians in Minneapolis’ Uptown neighborhood.  Here was the newspaper’s explanation:  “The Star Tribune generally does not name suspects until they are charged.”

Wow.  The “general” rule, of course, does not apply when the arrested prisoner is famous.  As for the not-so-famous, even those accused of random attacks, well, um, they deserve, ah …

To be fair, the Star Tribune was far from alone in muddying Cook’s name over the weekend.  The facts of his arrest and jailing were true.  Of course the facts were news.  And unquestionably the media had a right to do exactly what they did.  In the 1989 case of Florida Star v. B.J.F., the United States Supreme Court made it clear that when the news media obtain truthful news (in that case, the name of a rape victim), they have a First Amendment right to publish it free from governmental interference.

I’m the first to support the rights of journalists to make news decisions and to exercise discretion about when to name criminal suspects and when not to do so.  It’s their job.  But the over-the-weekend Cook stories are just the latest chapter in what is a difficult, inconsistent area for the news media to navigate.

Posted in First Amendment, Minnesota Media, Open Records | Leave a Comment »

Attempt to use “SLAPP” statute slapped down

October 25, 2011

The Minnesota Court of Appeals has rejected a northwestern Minnesota farmer’s attempt to use Minnesota’s often-overlooked anti-“SLAPP” statute to put an end to a lawsuit that was filed against him after he refused to let an oil-pipeline company enter his property.

“SLAPP” stands for “strategic litigation against public participation.”  Anti-SLAPP laws let defendants file motions to dismiss lawsuits that are filed in response to citizens’ attempts to influence governmental projects.  Classic examples are when people get sued for speaking at a public meeting or for passing out leaflets critical of a development project.  Blogging about government might be protected too, but that remains to be seen.

Few lawyers even know the anti-SLAPP law exists.  The theory behind the law is that if people can get sued for speaking out for or against development projects, we’ll all be chilled into silence and in the end there will be no freedom of speech.

But speech was not at issue in the northwestern Minnesota case.  The farmer placed hay bales on his property in an attempt to hinder the pipeline company’s access to the Alberta Clipper pipeline, which is being built to deliver oil from Canada to the Twin Ports.  The farmer’s argument was that because the pipeline company was a public-service corporation, the company essentially was part of the government — and the hay bales were designed to procure favorable governmental action.

The Minnesota Court of Appeals would have none of it, and it let the case against the farmer go forward.  Similar cases around the country generally stress what the purpose of SLAPP laws is generally understood to be:  to ensure freedom of speech.

Posted in First Amendment, Media Law, Minnesota Law | Leave a Comment »

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