Religion Clause Case – The Sky is Not Falling on Separation of Church and State

June 22, 2022

by Marc J. Randazza


The Supreme Court issued a decision this week in Carson v. Makin, and the commentary from the Left seems to be that the sky is falling and that it will usher in the Handmaid’s Tale. My friend Elie Mystal believes that this means that the wall between church and state is falling. (here) He is not alone.

The American Federation of Teachers had this to say:

“Remarkably and stunningly, even for this right-wing majority, this decision completely vitiates the establishment clause of the U.S. Constitution and, with it, the separation of church and state, a core constitutional principle that has bound this country together since its founding. Today the court has decided that taxpayers must pay for the private religious education of others. (source)

The predictions of disaster are, I think, overblown. I think the American Federation of Teachers is quite simply lying to you.

The Case

The Maine Constitution requires that all children are entitled to a free public education.  However, fewer than half of Maine’s school districts operate a public secondary school.  Therefore, if a child lives in a district where there isn’t one, then the government pays tuition assistance for them to attend private schools – as long as they meet certain educational requirements.  

But, in 1981 Maine passed a law that excluded any religious-oriented school from the program.  This was because the Maine attorney general believed that failing to do so would violate the Establishment Clause.  In all fairness to the Maine attorney general, the law may have been a bit unclear on this.  But, in 2002, the Supreme Court held  that a benefit program where private citizens directed government aid to religious schools as a “genuine and independent private choice” was not contrary to the Establishment Clause.  See Zelman v. Simmons-Harris, 536 U. S. 639 (2002)   Then, Maine considered repealing the limitation, but it did not pass. 

The Court explained that the Free Exercise protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450 (1988). The government violates the Free Exercise Clause if it excludes religious observers from otherwise available public benefits.  “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause” (Op. at 10) 

As the court explained, the government must be neutral in matter of religion.  But, in this program, there was “nothing neutral” about it – the State of Maine would pay for private school tuition, as long as the school was not religious.  “That is discrimination against religion.”  (Op. at 10)

The decision relies upon two prior cases, which fit squarely within its facts.  In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity.  There, the Court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.  The crux of Trinity Lutheran,and the Court’s jurisprudence in this area since, was that the religious organization was required to renounce its religion in order to receive public funding.[1]

In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2261 (2020), the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools.  Following the policy in Trinity Lutheran, Chief Justice Roberts writing for the majority stated that “A State need not subsidize private education.  But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

So what’s the big deal?

If the government gives you a benefit, it can’t limit that benefit in a way that would offend the First Amendment. Remember in Matal v. Tam, the trademark office once banned registration of trademarks that were “disparaging.” The government said that this is because they were just offering a government benefit, not engaging in censorship. The doctrine of unconstitutional conditions required striking down that restriction. This is similar – the government can’t say that you can attend any school you want on the state dime, as long as they do not teach you religion in addition to the state requirements.

This does not mean that the state can directly fund religious schools. This means that if the state gives you a choice, that choice can’t be limited to non-religious schools only.

And despite this perspective, which is also dishonest, this does not mean that this applies to Christian schools only.

Mr. Ali, and those fawning over his statement seem to believe that the issue here is Christianity vs. other religions. However, he would be precisely wrong. If you can’t discriminate against religion itself, you can’t discriminate between religions.

Now remember the American Federation of teachers’ statement at the top? Their statement continues with “Now more than ever, we must prioritize our public schools, not marginalize them; we must invest in them, not divert money away to private programs.” (emphasis added)

So what are they really worried about?


[1] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017)

The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545 (1993)

Can we prohibit drag shows for kids? No.

June 10, 2022

by Marc J. Randazza

Drag shows for kids.

I feel like Jake Blues when he says “Illinois Nazis” in the Blues Brothers. For “Pride Month,” a gay club in Dallas had an event called “Drag The Kids to Pride” in which drag queens performed sexualized dances for kids … not just teenagers, actual kids. This seems to be something widespread, nationwide.

If you bring your kids to one of these, you and I have no common ground when it comes to parenting.  Why would you would bring your kids to a sexualized performance of any kind?  That isn’t “pride.”  That is what the Conservative kids call “grooming.”  I’d feel the same way if you brought your kids to a strip club, even if the dancers remained fully clothed, but performed the same routines on stage. It’s not the sexual orientation of the shows that troubles me. This just isn’t something appropriate for kids.

Florida State Rep. Anthony Sabatini tweeted that he was considering legislation to make it a felony to bring your kid to such a show. I like Sabatini. I like where his heart is at here. But, I can’t agree with his idea.

Sabatini is not alone. Politicians across the country are capitalizing on this skirmish in the culture wars to propose or suggest state action to curb this trend.

Now for the hard part — so far, every limitation I have seen suggested will violate the First Amendment.  

The facts

The facts, as I understand them (and upon which my analysis is premised) are:  

1. Drag queens danced for parents and their kids. 

2. Kids got up on stage and danced, too. 

3. The dances were “sexualized” in nature.  

4. Kids were stuffing dollar bills into garter belts, and audience members were throwing dollar bills to the kids who danced.  

If I have any facts wrong, then my analysis might change.  

An important note here — I have heard no reports that any of these involved actual nudity nor actual sexually explicit conduct.  “Sexualized behavior” is different from sexually explicit conduct.  The government can regulate nude performances and sexually explicit conduct.  The government can not regulate “sexualized” expression that is merely in tremendously bad taste.     

Another thing to note: It seems irrelevant that these are “drag queens.” If the kids can’t see the performer’s genitals, I think it makes no difference what is under their g-string, or if their tits are real, enhanced, or just stuffed bras.

Fully clothed. Nevertheless, I think if you would put your kid in that seat, you’re fucked in the head.

Analysis – Definitional Problems 

The first problem I would have with trying to ban drag shows for kids is even defining “drag show” in a legally clear manner.  Set aside the constitutionality of the ban until later in this post.  Just try to define this.  

If you asked me to come up with a regulation that simply defined the problem and prohibited it — even in the absence of the First Amendment — I couldn’t do it.  Could you?  

Sure, we all “know it when we see it.”  I know exactly what you mean when you say “those drag shows with kids.”  The sight of a performer writhing on the ground with dollar bills being thrown into their crotch, twerking in a kid’s face, yeah … I can picture it. But can I actually define it in a way that wouldn’t eat up a lot of other expression?  Can we define it so that it wouldn’t be a tool in the hands of someone who would censor dance / performances that we like?  

How could you come up with a regulation that wouldn’t ban say, dressing up to go watch the Rocky Horror Picture Show?  Would the regulation sweep up even Halloween costumes?  How could you write it so that it did not?  Would the difference be whether there was dancing or not?  If so, would you be able to write a regulation tailored sufficiently that it only swept up the dance moves you’re worried about?  Would this just be an “anti-twerking law?”    Would it be limited to men dressed as women?  What about women dressed as men?  Or what about just women in bikinis dancing?  

Do you trust the government to make this decision? I do not.

In Cohen v. California, Justice Harlan wrote “we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” 403 U.S. 15, 25 (1970).  

I do not trust the government to make this decision.  I trust the government even less if a government I trust today gets a tool of censorship in its hands, and then the regime changes.  Be careful. If you release poisonous snakes into your neighbor’s yard, they’re eventually going to slither into your yard.

Analysis – First Amendment

Dancing is First Amendment protected expression.  Even nude dancing is.  Judge Posner wrote that to say the contrary is “indefensible and a threat to artistic freedom.”  See Miller v. City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (concurring).  Most certainly, fully clothed (even if scantily clad) drag shows are dance protected.    

I think a reasonable person could call these performances “indecent.”  I call them that, but that’s just like my opinion, man.  Whether it is indecent or not, “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications v. FCC, 492 U.S. 115 (1989). See also Smith v. California, 361 U.S. 147, 150 (1959) (bookstores selling indecent materials); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (Indecent, but non obscene theater performances); Young v. Mini Theatres, Inc., 427 U.S. 50 (1976) (indecent motion pictures in a theater); Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude dancing).

But What About The Children?

The analysis does change a bit because kids are involved, but not enough to move the needle.  

The Supreme Court has held that “obscene” material is not protected by the First Amendment.  To be obscene, material must meet the Miller Test.  That test says we look at material in three parts:

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; 

2.  whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; 

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I can not imagine a principled judge not throwing out a regulation or a prosecution over a fully-clothed drag show.  Is merely twerking “patently offensive?”  Is it different because it is a man dressed as a woman?  It shouldn’t be.  To say these performances lack serious artistic or political value is to devalue those terms to being nearly worthless.  Most certainly they have “political value.”  That “political value” is the parents virtue signaling at how liberal they are.  It is absolutely an act of political speech and political expression.  Not expression I may approve of, but no parent brings their kid to this because they merely think the kid will have fun.  If that were the case, they’d park them in front of a guy with one of those great big bubble makers and throw ten bucks at him to entertain the kids.  These shows, and participating in them, is an act of political expression.  It is about as tasteful as a Pol Pot fan club meeting, but no honest person could say that these lack artistic or political value.  

When it comes to kids though, the standard can shift a little bit.  In Ginsberg v. New York, 390 U.S. 629 (1968) the Supreme Court upheld a variable standard when it comes to obscenity and kids.  In that case, the court upheld a New York law that prohibited providing materials containing nudity or sexual content to minors if there was monetary consideration. 

Aha! Have we found a way to prohibit this thing we dislike?  

Probably not.  

Ginsberg v. New York establishes that we can have a sliding scale of what is obscene.  Therefore, something that might not be “obscene” when sold to an adult can become obscene when sold to a minor.  (Ginsberg was decided before Miller, so I question even whether Ginsberg is still good law, but for the sake of this post, presume it is).  But, even in Ginsberg, the court recognized “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.”  

The rationale underlying Ginsberg is that parents get to raise their kids as they see fit.  “[C]onstitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”  Ginsberg also cited to Prince v. Massachusetts.  “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  321 U.S. 158, 166 (1944).  

The philosophy here is that parents get to educate their kids on sexual issues as they see fit (short of molesting them, of course).  The logic reversed the polarity here — in Ginsberg, the issue was that no bookstore should be making the decision as to whether a 16 year old kid can have a pornographic magazine — but a parent could still make that decision for their kid.  You want your kid to have a copy of Hustler?  Have at it.  But, the local convenience store can be prohibited from selling it directly to him.  

Could Ginsberg be used to create another stratification in obscenity law?  

Maybe, but I think such a decision could be fraught with constitutional danger.  Let’s say a

Not Sexy Enough For You?

court said that since Ginsberg lets us create an “obscene as to minors” standard, we can create more layers in that standard.  Could we have an “obscene as to toddlers” standard?  At what age would we draw the line?  How would we draw it in such a way that it prohibited what we wanted to prohibit, yet left other speech unscathed?  Would it be “harmful to minors” to let kids watch Monty Python?  Why not?  Because when the Monty Python guys are dressed as women, they’re not sexy enough?   Is the standard “I’d hit that if it had a vagina?”  If so, aren’t we using the “prurient interest” as to adults in order to decide what kids can see?  


I have no issue with drag queens in general.  I think it is great that they exist.  I will have words with anyone who wants to bully someone else because they are an adult choosing to be a drag queen, or transsexual, or attend a drag queen show, or whatever.  Your life, live it the way you like.  It doesn’t hurt me, nor bother me, in the least.  (In fact, my firm proudly handles transsexual discrimination cases that even the big trans-advocacy organizations turn down).  I have no problem with “Drag Queen Story Hour” where drag queens simply show up and read books to kids.  (Although this one should be criminally charged).

How about now? Sexy enough to ban?

But this is not that.  Rousseau wrote “Childhood has its own ways of seeing, of thinking, of feeling; nothing is more absurd than wanting to replace them with our own.”

This absurdity is at a level that I think nobody could ever have predicted.  We have elementary school teachers seeking validation for their life choices and sexuality from their students.  We have woke-scolds trying to reinvent our language, and other peoples’ languages as well.   And now in what seems like an outright declaration of war on normality, sick people bringing their kids to watch and participate in sexualized drag shows.  

But that’s what liberty is.  You get to raise your kids the way you want, with the values you want.  

Restrictions on that are limited, as they should be.  Do I want people to bring their kids to these shows?  I would rather they not.  If my kid’s mom brought them to one, we’d be in custody court before she got home.  (Not that she would, but just sayin’).  If my kids had friends whose mom (it is always the moms) brought them to one, I’d seriously consider whether my kid should even associate with that kid in any way.  I wouldn’t have any problem with completely socially ostracizing any drag queen who performs like this for kids, nor with doing the same for anyone who runs a business that tolerates it.  

But I do not want the government involved.  The government that has the power to tell you that you can’t bring your kids to a non-nude, non-obscene, drag show can also tell you that you can’t bring your kid to see a performance that you like.  In fact, it isn’t a far slide down the slope to limitations on what you can teach your kids in church.  

Liberty isn’t easy.  It isn’t supposed to be easy. It isn’t supposed to be comfortable. Liberty means your fellow citizens get to enjoy performances and child-rearing ideas that make your skin crawl, sometimes. Liberty is supposed to be standing up for expression that you would convince every person to reject – while protecting their right to make that choice for themselves.

I find these shows to be troubling.   But, “if there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989).

Yeah, Illinois Nazis, Texas Drag Queens, pornographers, Satanists, and even people who advocate putting pineapple on pizza have First Amendment rights. And even if you hate their use of those rights, to diminish theirs is to diminish your own.

The First Amendment Protects Angeli Gomez’ Right to Speak About Her Experience

June 5, 2022
The Mama Bear
Heroine of Uvalde

by Marc J. Randazza

Angeli Gomez probably would find the title “the heroine of Uvalde” to be embarrassing.  Therefore, if she reads this, I must apologize for calling her that.  But, Ms. Gomez demonstrated character and conduct that makes “heroine” a proper term for her.  Her statement “I’m going in there” should be enshrined on a monument somewhere, with nearly as much honor as the words “lets roll.” 

The Uvalde police?  Just the opposite.  Everyone knows their ineptitude and cowardice — waiting an hour while a loser shot kids inside the school.  Ms. Gomez, frustrated with government flunkies, tried to go in and save her kids.  Apparently a U.S. Marshal put her in handcuffs for “intervening in an active investigation.” (source)  “Right away, as I parked, a US Marshal started coming toward my car, saying that I wasn’t allowed to be parked there,” she recalled. “And he said, Well, we’re gonna have to arrest you because you’re being very uncooperative.” (source)  (second source

Local cops freed her, and she ran off, over the fence, into the school, grabbed her two kids and ran out.  

Again, the words “Uvalde Police Department” should be, from this day forward, synonymous with “incompetence” and “cowardice” and “ineptitude.”  That police department is 40% of the town’s budget.  They have a SWAT team, and yet a middle aged field-worker-mom showed more competence and heroism than this entire paramilitary over-funded group of preening tax-fattened losers?  

I am not a “Defund the Police” Guy, but this is definitely a waste of money.

As if the Uvalde Police couldn’t be any worse, they decided to try and shut her up, the First Amendment be damned.   

They then threatened Ms. Gomez for talking to the press about what cowardly clowns the Uvalde P.D. was, is, and shall forever be known.  She is on probation (I do not know why) for an event 10 years ago.  They’ve threatened her with a probation violation for “obstruction of justice” because she won’t stay silent. (source at 4:45) 

The First Amendment protects your right to speak your mind about how the government acts — not matter what, but especially if you’re a first-hand witness to (and participant in) a matter of public concern.  

The government does not get to threaten criminal prosecution for discussing a matter if public concern.  Even stolen top secret documents are lawful to publish. See New York Times Co. v. United States, 403 U.S. 713 (1971); Branzburg v. Hayes, 408 U.S. 665, 727 (1972) (“the right to publish is central to the First Amendment and basic to the existence of constitutional democracy.”). If one can publish The Pentagon Papers, Ms. Gomez can talk about her experience.  

This First Amendment violation was so grossly out of bounds, she should sue the living hell out of whichever agency threatened her.  This is a clear example of retaliation for the exercise of First Amendment protected conduct.  

To show First Amendment retaliation, a plaintiff must show: (1) that “he or she engaged in constitutionally protected conduct”; (2) that “he or she was subjected to an adverse action by the defendant”; and (3) that “the protected conduct was a substantial or motivating factor in the adverse action.” David B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012). An adverse action is one that “viewed objectively … would have a chilling effect on [the plaintiff’s] exercise of First Amendment rights,” Barton v. Clancy, 632 F.3d 9, 29 & n.19 (1st Cir. 2011), or that “would deter a reasonably hardy person from exercising his or her constitutional rights.” D.B., 675 F.3d at 43 n.11.

“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions … for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972). The First Amendment retaliation doctrine addresses “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996). 

Ms. Gomez did, indeed stop talking to the press for a period of time — fearing the threats that law enforcement would consider this to be a probation violation.  Reportedly, a judge told her that her probation would actually be shortened, as a reward for her bravery.  (source)  I am not sure how that might have happened, and there are moving parts in this story that are unclear.  But still, I can think of few clearer First Amendment violations than this.

The deprivation of First Amendment rights, even for a short period of time, is intolerable — especially when the government is threatening criminal prosecution for the exercise of those rights.  And this is especially so when someone is a participant in a matter of public concern, discussing what she saw with her own eyes and ears.

Insert the sound of a screeching eagle, here.

Michigan Bans Foreign Language Books in Prison – Constitutional? I Think Not.

June 3, 2022

by Marc J. Randazza

The Michigan Department of Corrections is banning Spanish or Swahili dictionaries.  Michigan Dep’t of Corrections spokesman, Chris Gautz, claims that it is a matter of public safety.  

“If certain prisoners all decided to learn a very obscure language, they would be able to then speak freely in front of staff and others about introducing contraband or assaulting staff or assaulting another prisoner,” he is quoted as saying.  “When it’s in a language that we don’t have the ability to read ourselves and understand exactly what it is that we’re looking for, we’re not able to allow it in.” (source).

Is this Constitutional?  I think not. The First Amendment protects even a prisoner’s right to read books.

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates – but they still maintain some First Amendment rights. In First Amendment cases, there are typically three levels of scrutiny — strict scrutiny, which is required in clear free speech cases where there is a content-based restriction, intermediate scrutiny which applies usually to commercial speech, non public forum speech and many content-neutral restrictions, and rational basis review, which applies to regulations that have nothing to do with the content. (This is really dumbing it down, but I don’t want to lose your attention span here).

Courts review a prison’s limitation on inmates Constitutional rights under the rule laid down in Turner v. Safley, 42 U.S. 78 (1987) and as modified by Thornburgh v. Abbott, 490 U.S. 401 (1989). The regulation is valid if it is reasonably related to legitimate penological interests. The Court pointed to four factors to determine if the regulation is “reasonable.”

  1. There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. It must be legitimate and neutral.
  2. Whether there are alternative means of exercising the right that remain open to prison inmates.
  3. The impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
  4. The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.

Looking at this standard, I am confident this regulation could be struck down as violating prisoners’ First Amendment rights.

Prong one – Is the Governmental Objective legitimate, neutral, and rational?

Is the government objective legitimate? The stated objective here is to prevent prisoners conspiring to break the rules, hurt guards, and engage in other forms of mischief. While this sounds like bullshit, I think most courts would take the prison system at its word that this was its objective.

Is it neutral? Here I am more skeptical. Would they ban “A Clockwork Orange” for its use of Nadsat? Or 1984 for use of Newspeak? Are they banning the use of AAVE or other non-standard forms of English, which could be just as unintelligible to a prison guard as Spanish. (For example, Jamaican Creole). Also, while the story only discusses Spanish and Swahili, I question whether they’ve also banned French or Latin or Italian? If so, that might tend to support the government’s claim of neutrality. But, it seems to me that the neutrality here is questionable.

Is the ban rationally related to the prison’s stated objective? I think not, but “rational” is open to interpretation, and if you have a judge who either doesn’t give a shit about prisoners or the First Amendment, I could see a judge calling it “rationally related.” On the other hand, it seems that given the fact that Spanish is the second most spoken language in the world, banning books for learning Spanish doesn’t seem very “rational” when part of the rationale includes a fear of prisoners learning an “obscure” language. Even Swahili is hardly “obscure.” Query whether say Papiamento (a language I am studying right now) or Romansch (a language I can understand a lot of, because I speak Italian) would be a different story. Further, let’s query whether it is rational to keep a Spanish-English dictionary from a prisoner who is trying to learn English rather than the other way around.

Further, I would question whether it is rational to ban books in order to try to prevent prisoners from learning a language as opposed to banning them from using the language in certain ways.

There are a number of cases that do deal with the use of foreign languages in prison — and they recognize that a prison has a legitimate penological interest that could sustain the banning of the use of foreign languages in prison.

In Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024 (8th Cir. 2004) the 8th Circuit upheld a prison’s limitation on written communication in a foreign language, if the prisoner could communicate in any other language. Even though Ortiz preferred to write to his sister in Spanish, because that was her first language, the prison had a right to screen incoming and outgoing mail, and doing so in a language other than English was an undue burden on the prison.

In Thongvanh v. Thalacker, 17 F.3d 256 (8th Cir. 1994) however, a Laotian prisoner was denied the right to communicate with non-inmates in Lao, even though Spanish and German prisoners had both the opportunity to communicate in their native languages and there was a translation service offered to them to translate their letters into English. A jury found that failing to offer similar accommodations to a Lao speaker was a First Amendment violation and the verdict was upheld on appeal.

Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) struck down a prison policy of summarily rejecting foreign language publications without an attempt to translate or screen the materials. And in Boriboune v. Litscher, 91 F. App’x 498 (7th Cir. 2003) the court distinguished Kikumura and upheld a prison requirement that a prisoner first obtain approval before communicating on the telephone in a foreign language).

However, I have found no cases that support the proposition that it is permissible to stop a prisoner from merely learning a language.

To help in the analysis, there is another context where First Amendment rights are severely curtailed, but not extinct — schools. Nebraska once had a state law that prohibited teaching of languages other than English to children who had not passed the eighth grade. The Supreme Court held that the statute was arbitrary and without reasonable relation to any legitimate State goal. Meyer v. Nebraska, 262 U.S. 390 (1923). And in another case, a law that prohibited keeping business records in other than specified languages violated Chinese businessmen’s equal protection rights. Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926). Further, at least one case cites the Meyer case for the proposition that the Due Process Clause protects the right “to acquire useful knowledge.” Epperson v. Ark., 393 U.S. 97, 105 (1968) citing Meyer v. Nebraska.

Accordingly, I would find that this regulation fails this prong.

Prong two — Are there alternative means for the prisoners to exercise their rights?

I think the government has even more of a hard time here. There are still First Amendment rights in prison, despite their limitations. There is a right to receive information — in the form of foreign language books. There is at least some right to learn a foreign language, and to acquire knowledge. See Epperson v. Arkansas, supra.

I suppose the prison could claim that if you want to learn Spanish, you can learn it from your cellmate, if he speaks Spanish? I really can’t see any alternative means for a prisoner to either learn Swahili, Hebrew, etc. (And the thought of this impacting religious study creates an even greater problem — how can you practice Judaism in prison without learning Hebrew?) There really does not seem to be any alternative means other than bringing in tutors – but the issue here is that the prison system seems to simply wish to prohibit prisoners from using or knowing languages other than English – it isn’t the books themselves, but the spread of knowledge, and then the fear that this knowledge will be used nefariously.

But ultimately, it does not seem that there are any alternate means for prisoners to learn foreign languages. I could see a reasonable alternative for the inverse — if a Spanish speaker wishes to learn English, then the prison could offer English classes. But, without books to learn it, I can not rationally see a way that prisoners could learn other languages, other than the prison offering courses in them. But then that cuts against the stated purpose — the Bureau of Prisons does not seem to be as concerned about prisoners knowing foreign languages, but rather how they would be used. As discussed below, limitations on using what you learn from a foreign language text might be limited, but I think simply depriving prisoners of the ability to learn them would be a different analysis.

Prong 3 – The impact on guards and other inmates

As discussed in the cases above, prisons can regulate the use of foreign languages for some pretty

Navajo Code Talkers

legitimate reasons. As discussed above, the prison can (and probably should) screen letters and phone calls in and out of the prison. We do not want gangsters running their enterprise from inside the prison by simply using another language. Use of “obscure” languages has a proven track record of being a great way to keep a code unbroken. See, e.g., Navajo Code Talkers in World War II.

However, I can’t see that there is an impact on guards and other inmates inherent in prisoners simply learning another language while in prison.

Prong 4 – Alternatives

It does seem that the prisons could control the issue they are concerned about by requiring that prisoners only communicate in English. “This is America, speak English only” would be constitutionally intolerable in other circumstances, but in the prison context, the BOP’s regulation could make sense. Limiting foreign language use as a means of controlling the prison population and ensuring that prison officials can both govern inside the prison as well as governing how prisoners communicate with the outside world is legitimate and would be upheld. Therefore, the existence of ready and obvious alternatives seems to cut against the reasonableness of the regulation.

Other considerations

In the context of jury selection, foreign language use has been held to be a proxy for racial discrimination. Further, I think there are significant equal protection and First Amendment problems here, over and above the issue of whether prisoners have an inherent right to learn a foreign language. As I alluded to above, how could a prisoner either convert to, or practice Judaism while being prohibited from learning Hebrew? I am no expert on Third Wave American (or “Native” if you’re into that term) religious practices, but I presume that there are spirits who would rather be spoken to in Navajo rather than English. When it comes to endangered languages, I have an even greater concern — some Third Wave languages are nearing extinction, as is Texas German or even the aforementioned Romansch. If some prisoner wants to spend their time learning such an obscure language, they could wind up becoming a very valuable resource for the preservation of that language.

Ultimately, this regulation seems steeped in over-reaction, prejudice, and irrationality. I’d find that it should be struck down as violating the prisoners’ First Amendment rights, and let the prison deal with its concerns by limiting how foreign languages can be used, not simply depriving prisoners of the opportunity to learn them at all.

Buzzfeed News profiles Marc Randazza and explores his high-profile, controversial cases

November 1, 2018

Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.

The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.

That’s where Randazza focuses much of his effort.

Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.

One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.

Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.

“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.

Read the full article about Marc Randazza on Buzzfeed News.

Marc Randazza about Section 2(a) changes

January 8, 2018

Marc Randazza shared his opinion regarding some recent First Amendment and Trademark cases.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a federal trademark law, which prevents certification of certain classes of marks that “may disparage” or can be “immoral or scandalous”. But at the beginning of the year, the Supreme Court found that prohibiting disparaging marks from being registered violates the First Amendment. So, Section 2(a)’s unconstitutional arrangements have finally fallen.

In his latest article on Popehat, Marc Randazza comments on two recent important cases: the Brunetti decision and the Tam precedent. Both cases include trademark registrations and the restrictions of Section 2(a). Since the Supreme Court struck down the disparagement clause, many people speculated whether the immoral or scandalous clause would survive.

Mr. Randazza notes that now, with Brunetti, we no longer need to speculate (if there is no appeal). Brunetti tried to register his trademark FUCT. But the United States Patent and Trademark Office declared that this mark is a synonym with “fuck,” making it sound vulgar, and thus conflicting with Section 2(a).

Now, the Federal Circuit has found that the “immoral or scandalous” restriction on registration is unconstitutional, a decision influenced by the Supreme Court’s Tam decision. The Brunetti court pronounced that the “immoral or scandalous” restriction was likely viewpoint-based.

The Tam decision tossed aside the government’s theories on censorship, that:

  1. Federal trademark registration scheme is a public forum that allows content-based restrictions on speech;
  2. The “immoral or scandalous” portion of Section 2(a) survived the lesser level of examination for restrictions on commercial speech.

In this case, the test was conducted. It was supposed to determine whether a mark is “immoral or scandalous” or if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable . . . giving offense to the conscience or moral feelings . . . or calling out for condemnation.”

But finally, after years of unconstitutional actions by the United States Patent and Trademark Office, the trademarks registration process has changed and today there is no “immoral or scandalous” block.

Randazza: The Legal Battle Over Andrew Anglin Continues

December 5, 2017

An article about one of Marc Randazza’s most controversial and groundbreaking cases  – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.

The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.

In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”

Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.

It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.

Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.

However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”

Marc Randazza reacts to the Las Vegas shooting in his most recent CNN column

October 12, 2017


In his latest CNN opinion column, Vegas based attorney Marc Randazza reacted to the brutal mass shooting that happened in Las Vegas on October 2, 2017. Fortunately, neither Marc Randazza, nor his family members or friends, were harmed during that tragic incident.

However, as a First Amendment attorney and the managing partner of the Randazza Legal Group — a law firm that handles cases related to Constitutional law — Randazza could not remain indifferent.

While expressing his deep sympathy and condolences to the victims and the survivors, Marc Randazza emphasized that it’s fairly important not to let terrorists plunge the nation into chaos and fear. As Mr. Randazza noted, “Let us remember that those who kill innocent victims do not do so simply because they wish them dead — terrorism is about killing a few to strike fear into many.”

Oppressing people’s freedoms and restricting the rights of regular people isn’t the best way to react to mass shootings. Marc Randazza believes that we should “Do nothing but mourn, care and investigate. Yes, at some point this event will inform decisions on how we govern ourselves. But not today.”

Find out more about Marc Randazza’s response to the Las Vegas shooting in his most recent CNN column: “The best way to respond to Las Vegas massacre.”

Jail For Laughing Protester Is An Outrage

May 10, 2017

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.

Marc Randazza’s most recent CNN column analyzes U.C. Berkeley’s decision to silence Ann Coulter

April 27, 2017

See Dear Berkeley: Even Ann Coulter deserves free speech.

There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.

Berkley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.

This is censorship.

Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”

Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.

Marc Randazza points out that the left used to be beacons for free speech, and credits a few well-known liberals for defending Coulter’s right to speak in the column:

“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?

What could have caused this rip in the space-time continuum?

The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”

Read the rest here.

Free Speech and Discrimination Redux

December 28, 2015

by Jay Marshall Wolman

Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”.  There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws.

The fine folks at the New York City Commission on Human Rights have decided to push the envelope, issuing guidelines for employers and landlords regarding transgendered individuals.  Among the well-intentioned guidelines are those that prohibit an employer or landlord from using a person’s biological gender instead of the person’s preferred gender.  Within the confines of the law and the powers of the Commission, it seems to be a natural progression from prohibiting treatment of a biological woman differently because she is not male to treating a male differently because he is a biological woman.  This progression has focused on the rights of the employee and tenant.

However, landlords and employers have rights, including First Amendment rights.  We may talk about the speech/conduct distinction, but it is a very much a speech regulation when we are specifically talking about what specific words a landlord or employer is allowed to use.

It also prohibits gender-specific dress codes and, in effect, single gender bathrooms.  Some businesses may take issue with these regulations as well, perhaps a Hobby Lobby or Chik-fil-a.  Looking at Boy Scouts of America v. Dale and more recent cases such as Hobby Lobby (though not decided on 1st Amendment grounds) or Citizens United, freedoms of belief and association, including at the corporate level,  are likely to swallow the entirety of the NYC guidelines.  Gender expression is a form of speech, and government isn’t supposed to be in the business of deciding which content is preferred.

If there is substantial litigation over these new guidelines, they may set the stage for greater scrutiny of all speech regulations under the guise of anti-discrimination.


Spics Not Welcome

December 22, 2015

by Jay Marshall Wolman

By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”.  (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.)  In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis.  I leave it to others to provide an analysis of the holding.

I’m more interested in something that appears on page 9 (page 107 of the PDF) of the dissent of Circuit Judge Reyna.  In it, Judge Reyna (who happens to have been a former president of the Hispanic National Bar Association) offers up the following as a permissive government regulation of disparaging speech:  a restaurant named “SPICS NOT WELCOME”.  Judge Reyna notes that Title VIII of the Civil Rights Act of 1964 bans advertising with a discriminatory preference and discusses how (the better known) Title VII bans harassing speech in the workplace.  He then writes that the government interest in avoiding disparagement, such as that with demographically discriminatory content, outweighs the burdens on speech.

With Judge Reyna in the dissent, something to consider is what would be the implications of a restaurant named “SPICS NOT WELCOME”.  Prof. Eugene Volokh has explored the conflict between First Amendment law and harassment law.  Judge Reyna’s example sets it up nicely.  Let’s assume an entrepreneur named a restaurant “Spics Not Welcome” and registered that trademark.  Let’s also assume that the restaurant does not actually discriminate against persons of Hispanic origin (for the hypothetical, let’s presume the restauranteur hates spices, but has a spelling problem and forgot the “e”).

Presumably, the name would dissuade both potential consumers and job applicants of Hispanic origin and would be deemed to violate the Civil Rights Act under present jurisprudence.  So, on the one hand, you can register and use a disparaging mark under the First Amendment, but on the other, it is prohibited as being discriminatory.  Which one stands?  And, even though the trademark matter was decided on constitutional grounds, that does not mean that the government interest analysis is the same.  Of course, it may be argued that it is the same analysis and down goes harassment law.

If not, can you have a registered trademark you are not allowed to use?  Does trademark law trump civil rights law or vice versa?  Since the Lanham Act predates the Civil Rights Act, perhaps the latter trumps.  I’ll have to look into instances where an offensive mark was deemed unlawful harassment and update this post.

Now, I don’t recommend naming a restaurant “Spics Not Welcome”.  But what if The Slants needs a new drummer–can a non-asian apply?  Would they feel harassed or precluded by the name?  It’ll be interesting to see how the law develops.




A Slanted View of Trademarks and Free Speech

November 4, 2015

by Jay Marshall Wolman

Free speech and the Lanham Act (the federal law dealing with trademarks) has been a hot topic of late.  There are two high profile matters in separate courts of appeals challenging the constitutionality of Section 2(a), which prohibits the registration of disparaging marks.

In the Federal Circuit is the matter In re: Tam, in which the band, The Slants, is challenging the refusal of the registration of the mark in its name.  Their brief can be found here.  Marc previously commented on that case here. (Disclaimer: Marc wrote a brief for the First Amendment Lawyers’ Association. That brief is here. You may also want to read Marc’s infamous “Fuck” brief here. The viewpoints expressed herein are my own and should not be construed as those of Marc Randazza, Randazza Legal Group, or the First Amendment Lawyers’ Association.)

And, in the Fourth Circuit, is the matter of Pro-Football, Inc. v. Blackhorse, in which the Washington Redskins are challenging the cancellation of their mark.  Their brief can be found here.

The Slants and the Redskins are both arguing, among other things, that the ban on registration of disparaging marks is an unconstitutional restriction of speech.  It is not a content-neutral regulation and they claim that the denial or cancellation burdens their commercial speech, when compared to others, since they cannot enforce the marks to the same extent.  They claim it is not government sanctioned speech, per se, simply by registering the mark.  The Redskins brief specifically  highlights other offensive (it believes) marks that have passed muster and no one believes that the registration=government speech.  It specifically distinguishes the Texas License Plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc.,135 S. Ct. 2239 (2015), noting that trademark registrations, unlike license plates, are not generally known to be vehicles for government speech.

Because these are pending before different circuits, it is well possible for there to be a circuit split that might ultimately warrant Supreme Court review.

Omitted from discussion, and worth noting, is that, in essence, trademarks actually limit free speech.  Prof. Lisa Ramsey argues as much here.  Conceptually, a trademark registration means that my right to speak your mark is limited.  Hypothetically, it means that in my sporting goods store that caters to British clients, I cannot probably label American baseballs as Yankee balls; it means that I cannot probably market a device that lets a Microsoft and Apple computer talk to each other as a “Surface to Air Missile”.  And descriptive marks are even more limiting–only Fox News is allowed to call itself “Fair and Balanced”.

When thinking about these together, the Slants and Redskins are arguing that their speech rights are being limited because they don’t have the same right to limit the speech of others as others might have.  Normally, the argument is that registration of the mark limits speech.  Here, they argue that denial of registration limits speech.  They may well be right in the end, but this is definitely one of those interesting competing rights cases.

Wait a Cotton Pickin’ Minute: Free Speech and Employment

November 2, 2015

by Jay Marshall Wolman

As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas.  Sometimes, they overlap, as they did in my Twitter feed recently.  (Blatant self-promotion, feel free to follow me @wolmanj ).

In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims.  As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:

This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.

Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself.  The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.”  Trusz ignored that limit and the money quote is:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.

Not all speech is treated equally.  It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer.  Other speech remains unprotected.  Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.

The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix.  Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”.  As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction:  cotton pickin’ itself is not racist, but calling someone a “cotton picker” is.  Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)

Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer.  What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better?  Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)?  (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?)  Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.

Fourth Circuit Delivers First Amendment Ass-Kicking

June 28, 2013

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog,, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.