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2020 Survivor’s Guide: The Constitutionality of Face Masks

Let’s talk about face masks.  Public dress codes have been a part of American society since its inception.  They are the reason why everyone puts on clothes to go out in public.  Most of us do not question the government’s right to make us wear pants when we leave our homes.  It just makes sense.  If we are okay with the government telling us to cover our butthole, why are we so upset when it tells us to cover our face-hole?    

This post looks at the two constitutional rights that come into play when the public is required to wear a face mask:  (1) your liberty interest in your personal appearance under the Due Process Clauses of the Fifth and Fourteenth Amendments, and (2) your freedom of expression.  Spoiler alert:  Neither give you the right to refuse to wear a mask.

LIBERTY INTEREST IN APPEARANCE

The Fifth Amendment of the United States Constitution prohibits federal government interference with your “liberty,” i.e., your person.  U.S. Const., am. V.  Through the Fourteenth Amendment, the Fifth Amendment’s prohibitions on interferences with your person are extended to the States.  U.S. Const., am. XIV. 

In 1976, SCOTUS appeared to recognize that a person may have a protectable liberty interest in their personal appearance.  Kelley v. Johnson, 425 U.S. 238, 244 (1976).  In Kelley, SCOTUS upheld a county regulation limiting the length of county policemen’s hair.  Id. Because it rejected the constitutional challenge on other grounds, SCOTUS never actually confirmed whether we have a liberty interest in our personal appearance.  Id.

Since Kelley, however, courts across the country have recognized liberty interests in a person’s  appearance.  For example, federal courts of appeals have tackled the question of whether states can prohibit police officers from wearing earrings, Rathert v. Village of Peotone, 903 F.2d 510, 514 (7th Cir. 1990), denied the right of states to prohibit men from jogging shirtless, DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987), and taken on prohibitions against beards on teachers in public schools.  Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982). 

But, unlike the liberty interests protected in other seminal cases like Roe v. Wade, 410 U.S. 113 (1973) (procreation), Griswold v. Connecticut, 381 U.S. 479 (1965) (family life), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry), your liberty interest in your appearance is not a “fundamental” right.  Kelley, 425 U.S. at 244.  When the right which you claim the government is infringing is not a “fundamental right,” the law will be upheld if it is rationally related to a legitimate government interest.  Mass Bd.  of Ret. v. Murgia, 427 U.S. 307, 314-15 (1976).   

Now that you understand your basic right, I’m going to cut to the chase:  You do not have a protectable liberty interest in your decision not to wear a mask during a pandemic because a law requiring you to wear a mask is rationally related to a legitimate government interest in public health. 

Just in case you don’t believe me, I’m going to take you back in time 115 years to meet my friend Mr. Jacobson, a man with a vendetta against small pox and the state of Massachusetts.

JACOBSON V. COMMONWEALTH OF MASSACHUSETTS

So, Mr. Jacobson lived in Massachusetts at the turn of the twentieth century. Before that, he lived in Europe where he had been inoculated with small pox.  Inoculation works like this: you find someone with small pox, you pop the blister, you smear the small pox pus on your arm and hope you don’t die.  It was effective at inducing immunity to the disease, but it sucked.

Jacobson survived it, obviously, which is why he was super bummed to discover that Massachusetts was going to require him to also be vaccinated against small pox, even though he had been inoculated years earlier.  He sued Massachusetts, claiming that its mandatory small pox vaccination  unconstitutionally infringed upon his liberty interest.  Jacobson v. Commonwealth of Mass., 197 U.S. 11, 26 (1905).  SCOTUS rejected his challenge and held that “the police of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  Id. at 24. SCOTUS explained that our constitutional liberty interest is not absolute and can only exist to the extent it is safe for others  Id.  at 25. 

I don’t know if Jacobson, the person, survived the small pox outbreak in Massachusetts in 1905.  I’m assuming he did since he had to get the vaccine.  But I do know that Jacobson, the case, has survived 115 years as good law and is currently being upheld by courts across the country to address challenges to COVID-19 laws.  See In re Abbott, 954 F. Supp. 3d 775 (5th Cir. 2020) (striking down a COVID-19 law prohibiting abortion); Carmichael v. Hawaii, 2020 WL 3630738, *5 (D. Haw. July 2, 2020) (upholding Hawaii’s mandatory 14-day quarantine upon entry into the state). 

What does this mean for masks?  If SCOTUS says that it is not an invasion of your liberty interest to physically inject your body with something in order to protect the public health during an epidemic, I really do not think you are going to win on a claim that simply placing a mask on your body, temporarily, during a global pandemic of an airborne virus somehow violates your liberty interest. 

But wait, there’s more.

FREEDOM OF EXPRESSION

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., am. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

SCOTUS has applied the freedom of expression to protect people’s choice in their personal dress and appearance.  For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

Freedom of expression, however, has its limits.  A law impacting freedom of expression will still be upheld if it is (1) within the constitutional power of the government, (2) furthers an important or substantial interest, (3) the governmental interest underlying the law is unrelated to the suppression of free expression, and (4) “if the incidental restriction on the alleged First Amendment freedoms is no greater than essential to the furtherance of that interest.”  U.S. v. O’Brien, 391 U.S. 367, 377 (1968). 

As we saw in Jacobson¸ requiring you to wear a mask is definitely within the constitutional power of the government.  States unquestionably have “the power . . . to enact and enforce quarantine laws for the safety and protection of the health of their inhabitants[.]”  Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380, 387 (1899).

And protecting public health is clearly an important and substantial interest. 

Plus, the underlying interest of public health is unrelated to freedom of expression.  You can say whatever you want behind that mask.  You can even wear a mask that states: “masks don’t work” or “I don’t believe in science.”  Your beliefs regarding whether masks work, whether COVID-19 is real, or whether this is all a conspiracy theory are not being regulated. 

Finally, again, the restriction is de minimis.  You are being asked to wear a mask for a short period of time.  It is temporary.  You do not have to wear it in your own home. 

To sum it all up, your refusal to wear a mask is not protected by your freedom of expression. 

2020 SURVIVOR’S TIP

Wear the mask.  Just wear it.  And for the love of Jacobson, stop claiming you have a constitutional right to free your face hole.

Bikinis, Coffee and Strippers: Just Another Day in the Ninth Circuit

What do bikinis, coffee and strippers have in common?  Nothing except for the fact that they all play a role in the Ninth Circuit’s opinion in Edge v. City of Everett, 929 P.3d 657(2019).  Edge takes us to Washington, the land of bikini barista coffee stands, where women wear next to nothing (and sometimes nothing) while serving coffee at road side stands.   After the City of Everett enacted ordinances requiring the baristas to wear a few more inches of fabric, several of the baristas complained that the City of Everett had unconstitutionally infringed on their freedom of expression under the First Amendment.  The Ninth Circuit disagreed.

THIS JUST IN: STRIPPING IS PROTECTED BY THE FIRST AMENDMENT

That actually is not just in, but it is new information to me.  Since the 1970’s, SCOTUS has protected stripping as a freedom of expression under the First Amendment. 

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., amd. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

In California v. LaRue, 409 U.S. 109 (1972), SCOTUS applied this logic to uphold California’s legislation barring liquor in strip clubs.  Noting that the First Amendment freedom of expression had been extended to motion pictures and theatre performances, and that stripping was, in some cases, basically a really erotic theatre performance, SCOTUS found that strippers do have some limited First Amendment rights.  Id. But, because California sought to regulate liquor sales rather than the actual um, performance, the California law was upheld.  Id.

In Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981), SCOTUS again noted that nudity does not exclude conduct from the protection of the First Amendment.  Id. In Schad, SCOTUS found that a local ordinance attempting to ban an adult bookstore from allowing a live nude dancer was unconstitutional.  Id.

This does not mean that strippers have a carte blanche right to roam about dancing in the nude.  As SCOTUS explained in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the states still have the right to enact laws limiting when and where public nudity may occur and/or requiring strippers to wear “scant clothing” while dancing.  Id. at 571.  Barnes concerned an Indiana law banning all nudity in strip clubs, but allowing dancers to wear pasties and a g-string.  Id.  Reasoning that states can regulate morality provided that the state’s interpretation of “moral” conduct does not completely prohibit protected expressive conduct, SCOTUS upheld the state law. Id.  Since the dancers could still dance, and since the clothing required gave the audience the basic gist of nudity, the Indiana law was fine. 

These were family establishments after all.  We must have some standards. 

(Kidding. These were actually just strip clubs with no minors allowed). 

BUT, “BIKINI BARISTAS ARE NOT STRIPPERS”

According to the Bikini Baristas, they are not strippers.  Strippers wear little to no clothing in exchange for tips.  Bikini Baristas, in contrast, wear little to no clothing in exchange for tips. 

Wait a minute. 

I think we need to start from the beginning with this one. 

THERE’S CORRUPTION IN THIS COFFEE STANDS

If you are like me, you may not have ever heard of a bikini barista.  Seriously, I’ve learned so much today.  A bikini barista wears a “bikini” while serving coffee at a road side coffee stand. 

In Washington.  Which is not exactly known for balmy weather. 

If that sounds like a recipe for prostitution and trafficking . . . well, it is.  After receiving complaints that the baristas had a pretty fast and loose term for the phrase “bikini” and that patrons observed physical contact with customers occurring, the City of Everett mounted an undercover police investigation.  Edge, 929 F.3d at 660-61.  The police discovered that many of these road side coffee stands were fronts for prostitution and trafficking, that many of the baristas were paid solely in tips and encouraged to wear little or no clothing for larger tips, and that assaults frequently occurred.  Id. at 661. This undercover operation lasted for five years, and after five years, the Everett police were unable to solve the problems the coffee stands presented with the means available to them.  Id. Partially because they discovered that a sheriff deputy was involved in covering up one of the coffee prostitution rings (he’s been convicted, it’s all fine now). 

Anyway, after five years, the Everett police told the City that the bikini baristas were the City’s problem to solve.  And the City responded by, among other things, creating a dress code ordinance for the stands that required the baristas to wear more.  Id. at 662. 

THE BIKINI BARISTAS SUE FOR THEIR RIGHT TO BARE IT ALL

After the City’s enactment of the new dress code ordinance, several bikini baristas (and an owner of a stand) sued the City and argued, among other things, that the City’s dress code ordinance unconstitutionally infringed on their freedom of expression.  According to the baristas, the bikini (or whatever they were or were not wearing) was a symbol of “female empowerment” because it celebrated the female body and made women seem “approachable.”  Id. at 662-64.  The trial court agreed with the bikini baristas that the dress code ordinance might infringe their freedom of expression, and entered an order temporarily enjoining the City from enforcing the dress code while the lawsuit was pending. Id. at 664. The Ninth Circuit disagreed.

The  Ninth Circuit explained that protected freedom of expression requires that the “expressive conduct” convey a specific message for which there is a great likelihood that it will be understood by those to whom it is being conveyed.  Id. at 668. For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

In contrast to the situations in which SCOTUS has protected freedom of expression, the bikini barista’s claim arose in a commercial setting.  The Ninth Circuit found that “the commercial setting and close proximity to the baristas’ customers makes the difference” because the “baristas’ act of wearing pasties and g-strings in close proximity to paying customers” where the “baristas indisputably solicit tips . .. creates a high likelihood  that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from” the messages of “female empowerment” the baristas claimed to be sending.  Edge, 929 F.3d a 669.  In other words, the message conveyed may have been one of empowerment, but the message received was most likely “give me more money.”  And, given the high rates of prostitution, trafficking and assault found by the City’s police department, the “empowerment” part of the message was clearly lost in translation. Id.

IT MIGHT BE DIFFERENT IF THEY WERE STRIPPERS

Although the Ninth Circuit found that the bikini baristas will have a hard time prevailing on their freedom of expression claim, it did throw them a bone.  To paraphrase the gist of what Judge Christen was hinting at in the opinion:

Hey, bikini baristas, you keep claiming that you are not strippers, and therefore, we cannot find a constitutional basis to protect your claimed freedom of expression.  But if you were to say that you are strippers – you know, those other women who take their clothes off for tips just like you – maybe we could talk. 

Clearly the moral of this story is to claim you are a stripper, even if it subjects your employer to all kinds of zoning violations. 

You Do Not Have A Constitutional Right to Hire a Prostitute (Duh)

The Ninth Circuit recently ruled that there is no constitutional right for a private citizen to have sexual relations with prostitute.  Erotic Serv. Provider Legal Educ. & Research Proj. v. Gascon, 880 F.3d 450 (9th Cir. 2018).   

I hope you were sitting down for that bombshell.

Erotic Service Providers Legal Education and Research Project (“ESP”) consists of “three former ‘erotic service providers’ who wish to perform sex for hire, and a potential client who” wants to hire them.  880 F.3d at 454.  ESP claimed that California Penal Code § 647(b), which criminalizes prostitution, violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) freedom of association under the First or Fourteenth Amendment, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech.   Almost all of ESP’s claims were based upon the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003).  The Ninth Circuit completely disagreed with ESP and its interpretation of Lawrence.

Here’s what you need to know:

Once Upon a Time, People Kept Suing and Losing For the Right to Hire Prostitutes

It should come as no surprise that the question of whether we have a constitutional right to hire prostitutes has been heavily litigated in our nation’s history.  Prostitution is, after all, colloquially referred to as the world’s oldest profession.

In 1988, the Ninth Circuit addressed and rejected the argument that the freedoms of association guaranteed by the First and Fourteenth Amendments protected anyone’s right to hire an escort.  IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988).  IDK, Inc. was an escort service based out of Las Vegas that argued Clark County’s regulations governing the licensing and operations of escort companies violated it and its clients’ First and Fourteenth Amendment rights to association.  Id. at 1187.

The Fourteenth Amendment of the United States Constitution protects the right to form “intimate associations.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).  The traditionally protected forms of “intimate associations” have been defined as “highly personal relationships,” and “those that attend the creation and sustenance of a family.”  Id. at 618-19.

In IDK, the Ninth Circuit rejected the argument that the relationship between an escort and a client was the type of “highly personal relationship” traditionally protected by the Fourteenth Amendment.  836 F.2d at 1193.  It reasoned:

The relationship between escort and client possesses few, if any, of the aspects of intimate association.  It lasts for a short period and only as long as the client willing to pay the fee.  Although a client may have some choice as to the person he or she wishes as a  companion, the escort must accompany whomever the employer selects.  Escorts and their clients do not claim to be involved in       procreation, raising and educating children, cohabitation with relatives, or the other activities of family life.  An escort may be involved with a large number of clients.  While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening or even a weekend is sufficient time to develop deep attachments or commitments.

Id.

The Ninth Circuit also rejected the argument that the relationship between an escort and a client is protected by the First Amendment’s freedom of “expressive association.”  “Expressive association” generally protects activities like protests, assemblies, and any other gathering aimed at promoting religious, social or political speech.  Roberts, 468 U.S. at 622.

The Ninth Circuit found that there was no evidence that escort services include “expression [as] a significant or necessary component of their activities.”  Id. at 1195.  It reasoned that escort companies don’t advertise their employees’ skills in conversation or community service; therefore, it assumed “that clients select their companions on the basis of other criteria.” Id.  Plus, “[i]f a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so.  The escort services simply do not care what the couples talk about or whether they talk at all.”  Id. at 1196.  Accordingly, the Ninth Circuit rejected IDK’s argument that it had a constitutional right to offer escort services under the First and Fourteenth Amendment’s freedom of association.

Two years after IDK, the Movie “Pretty Woman” Was Released.

It didn’t change anything.

It just made Julia Roberts even more famous.

But Then Along Came Lawrence v. Texas

In 2003, the landscape of intimate association law changed when the United States Supreme Court issued its opinion in Lawrence v. Texas.  If you are unfamiliar with Lawrence, it is one of the landmark cases in gay rights.

Lawrence challenged the validity of Texas statute that criminalized certain types of sexual activity between members of the same sex.  539 U.S. at 563.  Speaking for the majority of the Court, Justice Kennedy struck down the Texas statute as unconstitutional under the freedom of association guaranteed by the Due Process Clause of the Fourteenth Amendment.  He reasoned that anti-homosexual statutes “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” and “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”  Id. at 567.  In reaching his holding, Justice Kennedy held:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a           homosexual lifestyle.  The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Id. at 578.

12 years after Lawrence, Justice Kennedy again drew upon this reasoning and ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”  Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015).

One thing that Lawrence did not address is the right to hire a prostitute.  To the contrary, Justice Kennedy specifically remarked that Lawrence did “not involve public conduct or prostitution.”  539 U.S. at 578.

Enter ESP and A Shocking Number of Other Lawsuits

Following Lawrence, people began suing all over the country for their right to “associate” with prostitutes by paying them to engage in private sexual activity.  And the courts, all over the country, declined to interpret Lawrence as protecting prostitution since Lawrence expressly stated that its holding did not involve claims related to prostitution.  See, e.g., State v. Thomas, 891 So. 2d 1233 (La. 2005);  United States v. Thompson, 458 F. Supp.2d 730 (N.D. Ind. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007); United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007); Lowe v. Swanson, 639 F. Supp. 2d 857 (N.D. Ohio 2009); Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).

In 2015, ESP joined in the fun and filed its lawsuit claiming that California’s anti-prostitution law violated the Due Process Clause of the Fourteenth Amendment, the Freedom of Association guaranteed by the Fourteenth Amendment, the constitutional right to earn a living, and First Amendment freedom of speech.  880 F.3d 450.  The Ninth Circuit disagreed.

ESP relied heavily on Lawrence to assert its Fourteenth Amendment claims.  It argued that Lawrence should be interpreted as guaranteeing “consenting adults a fundamental liberty interest to engage in private sexual activity,” which would prohibit a state from outlawing commercial exchanges of such private sexual activity. Id. at 455-56.  It also argued that Lawrence overruled IDK.  Id. at 456.

The Ninth Circuit rejected ESP’s argument that consenting adults have a fundamental liberty interest to have sex with a prostitute.  The evidence made it clear that California has a strong, legitimate reason for criminalizing prostitution because: (1) prostitution is linked to sex trafficking; (2) “prostitution creates a climate conducive to violence against women;” (3) there is “a substantial link between prostitution and illegal drug use;” and (4) “prostitution is linked to the transmission of AIDS and other sexual transmitted diseases.”  Id. at 458.

The Ninth Circuit also rejected ESP’s argument that the freedom of intimate association guaranteed by the Due Process Clause extends to commercial relationships with prostitutes.  Finding that Lawrence did not overrule IDK, the Ninth Circuit applied IDK to reject this claim.  Id. at 458-59.

Next, the Ninth Circuit rejected ESP’s argument that California’s anti-prostitution laws violate the Fourteenth Amendment’s right to earn a living.  Because Lawrence specifically stated it did not encompass prostitution, ESP failed to provide any law which supported a protected employment right in prostitution.  Since California’s laws applied to equally anyone and everyone, the law withstood constitutional scrutiny.  Id. at 459.

Finally, the Ninth Circuit rejected ESP’s claim that the solicitation of commercial sex is protected commercial speech under the First Amendment.  The First Amendment has never protected “commercially motivated speech that involved unlawful activity.”  Id. at 460.

Why ESP Matters to the 98% of the Population That Doesn’t Solicit Prostitutes

The evolution of our constitutional right of intimate association is a fascinating one in our nation’s history.  It is the basis upon which women have been guaranteed the right to use birth control and to obtain abortions.  Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).  As you read above, it is the basis upon which same sex relationships and marriage have been protected.  And, as ESP demonstrates, it is probably going to continue being the basis on which people advocate for legalization of commercial sex.  Whether that will happen, I do not know.  But, as Justice Kennedy observed: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Lawrence, 539 U.S. at 579.

Cursing Congressmen: Student Activism and the First Amendment

A local high school student has captured the media’s attention by claiming his First Amendment rights were violated after the school suspended him for cursing at a congressman.  The student participated in the March 14, 2017 walkout to protest gun laws.  During the protest, he admits that he called his congressman’s office and demanded that politicians get off their “f-ing lazy a – -” and do something about gun law reform.

The student contends that the school violated the student’s First Amendment rights to engage in “political speech.”  The school district argues that the suspension was not in retaliation for participation on the protest, but because the student used profanity.   Who is right?

The First Amendment protects “political speech,” i.e., speech that expresses opinions or views on current political issues or candidates.  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014).  In fact, political speech has been regarded as the “essence” of the First Amendment.  McIntyre, 514 U.S. at 347.  Courts are required “to err on the side of protecting political speech rather than suppressing it.”  McCutcheon, 134 S. Ct. at 1451.

In contrast, profanity is not always protected under the First Amendment.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).  The United States Supreme Court has consistently held that a school district may prohibit “inappropriate” speech.  Id. at 683.  This includes profanity used during protests that is aimed at “making a political point.” Id. at 682.

According to the United States Supreme Court:

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized order.  Consciously or otherwise, teachers – and indeed the older students – demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.  Inescapably, like parents, they are role models.  The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct . . .”

Id. at 683.

 

In sum, a school may prohibit the use of profanity, even during a political protest.  Id. at 685.

In this particular case, it is unclear whether the speech will be protected.  The speech occurred during the walk out, which was not a school-sanctioned activity.  It occurred during a political protest, it was aimed at a politician, and it requested political action.  On the other hand, the speech occurred on a school campus.  The other participants were students, and these students likely overheard this speech.  The school has a policy prohibiting inappropriate speech and conduct on school grounds.

To mount a First Amendment challenge, the student will also need to show that the suspension was in direct retaliation for his “political speech.”  The school has been very clear that its punishment was not due to the student’s political views or participation in the walkout, but because he violated a school code of conduct. To win, the student will need to prove that the school’s explanation is false or pretextual, and/or that the administrators in charge of the suspension had expressed opposition to the student’s allegedly protected speech.  Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).   Keep in mind, however, that schools can prohibit political protests on campus if those protests “undermine the school routine.”  Tate v. Bd. of Ed. Of Jonesboro, Ark., Special Sch. Dist., 453 F.2d 975, 978-79 (8th Cir. 1972).

So, who is right?  I don’t know.  The First Amendment is a gray area of the law, particularly when it comes to schools.

I do know that I am proud of our next generation.  While I do not condone this particular student’s choice of words, I commend him for trying to make a difference on an issue he feels strongly about.  If these students continue to be passionate about the shape of this country’s future, 2020 is going to be a very interesting election year.

City of Berkeley: “Your Cell Phone Might Kill You.”

The City of Berkeley wants us all to know that our cell phones might kill us.  It is very concerned about it.  In fact, it is so concerned that it enacted an ordinance requiring cell phone retailers to provide customers with a notice informing them of the health risks posed by cell phone use.

CTIA, a cell phone trade association, sued Berkeley and argued the required disclosure violates cell phone retailer’s First Amendment rights.   The Ninth Circuit disagreed, and, for the first time, decided that the government can require a private company to make specific statements to consumers if the required statements are related to a substantial government interest and are purely factual.

Will your cell phone kill you?  Can the government really tell you what you have to say?  Here’s what you need to know.

Apparently, Cell Phones are Radioactive

Apparently, cell phone use exposes us all to radio-frequency radiation (“RF”). In 1996, the FCC issued regulations limiting the amounts of RF that a cell phone can expose a consumer to.   61 Fed. Reg. 41006.  These regulations imposed limits based upon recommendations from the Environmental Protection Agency, the FDA, and various other federal agencies.

RF sounds scary as AF, but there has been no study conclusively proving that our exposure to RF from cellular devices is harmful.  Despite this fact, the FCC still adopted the above regulation in 1996, and refused to modify it to exclude cell phones in 2013.   The FCC’s approach has been “better safe than sorry” when it comes to cell phones and RF exposure.

Berkeley Thinks RF is Scary AF

In May 2015, Berkeley enacted an ordinance which requires cell phone retailers to issue a notice to all cell phone consumers that includes this language:

To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.  Refer to the instructions in your phone or user manual for information on how to use your phone safely.

Berkeley Mun. Code. 9.96.030(A) (2015).

CTIA was not happy and sued Berkeley for violating the First Amendment rights of cell phone retailers.   CTIA v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017).  You probably know about freedom of speech under the First Amendment.  What you may not know is that commercial speech is treated differently than personal speech.

Commercial Speech is Treated Differently Than Personal Speech Under the First Amendment

Although the First Amendment guarantees us all the right to free speech, that right has limits.  One area in which speech is frequently regulated (i.e., not truly “free”) is “commercial speech.”  Commercial speech is speech that is solely related to “economic interests.”   Central Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Commercial speech can be regulated in two ways.  One, the government can try to tell retailers what they cannot say.  When that happens, the government does not violate the First Amendment if the restriction is (1) related to a substantial government interest, (2) directly promotes that interest, and (3) is only as restrictive as necessary.  Central Hudson, 447 U.S. at 566.

Alternatively, the government can try to tell retailers what they have to say. When the government tries to tell a retailer what they have to say, the government might not violate the First Amendment if (1) the compelled speech is related to a substantial government interest, and (2) requires disclosure of purely factual information.   Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 650-51, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985).

There is a Bit of a Debate About When the Government Can Tell You WHAT You HAVE to Say

Zauderer was a lawsuit in which the U.S. Supreme Court addressed the issue of what attorneys should be required to say to their clients where the attorney’s prior statements deceived clients.  471 U.S. at 650-51.  The Court held that the government could require attorneys to make disclaimers because the disclaimers were (1) related to a substantial government interest (i.e., protecting clients), and (2) were purely factual (i.e., this is what the lawyer is going to do, charge, etc.).  Id.

Since Zauderer, the federal courts have debated whether the test in Zauderer applies to all compelled commercial speech.  Some courts think that the Zauderer test only applies when the compelled commercial speech is intended to prevent deception, and not when a government entity is merely requiring a retailer to disclose facts.

In the Ninth Circuit, Zauderer Applies Even If the Speech is Not Intended to Prevent Deception. 

Faced with CTIA’s challenge to Berkeley’s ordinance, the Ninth Circuit decided that Zauderer applies even when the compelled speech is not intended to prevent consumer deception.  CTIA, 854 F.3d at 1117.  The Ninth Circuit believes that there are many other government interests that can be furthered by compelled commercial speech.  Id.    If the interest is substantial, and the compelled disclosure is purely factual, the government does not violate the First Amendment by compelling commercial speech.  Id.

Applying its version of the Zauderer test to Berkeley’s ordinance, the Ninth Circuit found that CTIA will have a very difficult time proving that the ordinance violates the First Amendment.  Id. at 1118-19.

First, protecting the health and safety of consumers is clearly a substantial government interest.  Although no study has conclusively proven that RF poses a true threat to our health, the FCC apparently believes that it is in the government’s best interest to adopt a better-safe-than-sorry approach.  Berkeley’s ordinance furthers that interest.

Second, the compelled disclosure is purely factual.  Every sentence of it is literally true.  And even if it weren’t, Berkeley specifically allows cell phone retailers to add their own language to the end of the disclosure if they are concerned that it is inflammatory or misleading.

Finally, CTIA was not able to point to any evidence of a Berkeley citizen believing that their cell phone was actually going to kill them because of the notice.

BUT WAIT, There’s More

By trying to tell us that our phones are probably, maybe, possibly going to kill us, Berkeley opened a Pandora’s box of First Amendment law.  The debate in the Ninth Circuit over when and how the government can compel commercial speech will not end with the CTIA lawsuit.

CTIA has now twice sought rehearing of the Ninth Circuit’s decision.  First, it filed a “petition for rehearing,” which is a request for an appellate court to reconsider its ruling because it overlooked facts or misapplied the law.  The Ninth Circuit denied CTIA’s request to reconsider its application of Zauderer. 

Then, CTIA filed a “petition for en banc reconsideration,” which is a request to have 11 Ninth Circuit judges reconsider the decision.  Did I confuse you?  Here’s a quick crash course in how the Ninth Circuit works.  There are 29 Ninth Circuit judges.  Most appeals are heard by 3 judges, who issue the decision.  “En banc” means that 11 judges hear the appeal.

The Ninth Circuit judges declined to grant the petition for en banc consideration.  Judge Wardlaw, who is not one of the judges that rendered the decision applying Zauderer, wanted to grant en banc consideration because she believes that (1) Zauderer should only apply to speech intended to prevent consumer deception, (2) interpreting Zauderer to protect compelled disclosures beyond that narrow category infringes on First Amendment rights, and (3) an en banc Ninth Circuit should consider the issue instead of a 3-judge panel.  CTIA v. City of Berkeley, 873 F.3d 774 (9th Cir. Oct. 11, 2017) (Wardlaw, J., dissenting).   Judge Wardlaw ended her dissent with the affirmation that she is “looking forward to our next compelled disclosure case.”  Id.

Does this mean that the Ninth Circuit’s approach with Zauderer will change?  Only if enough judges agree with Judge Wardlaw.  Otherwise, for now, Berkeley is free to warn us that our cell phones might kill us.

I, for one, appreciate the City of Berkeley’s concern.  I’m still going to ignore the warning and use my phone too much, though.  #priorities