by Jane Ritter

Not much, it turns out.

Despite nearly six years of legal speculation and arguments, as well as approximately 100 amicus briefs filed in support of both sides of the case, the narrow holding of the U.S. Supreme Court’s 7-2 majority opinion is primarily a critique of the actions of the Colorado Civil Rights Commission (CCRC) rather than a strong message supporting or restricting free speech, religious expression, gay marriage, or the wedding industry.

Background
The case began with a visit in July of 2012 to the Masterpiece Cakeshop (Cakeshop) in Lakewood, Colorado, by Charlie Craig and David Mullins. Craig and Mullins are a same-sex couple from Colorado who planned to marry in Massachusetts because same-sex marriage at that time was not yet recognized in Colorado. They planned to return to Colorado after the wedding to celebrate with family and friends. The purpose of their visit to the Cakeshop was to order a wedding cake for their Colorado celebration.

The couple left the Cakeshop after meeting with the owner, Jack Phillips, who, without discussing specifics of any potential cake design, declined to make a wedding cake for them. Phillips informed the couple that he did not and would not create wedding cakes for same-sex marriages because of his deep and sincerely held Christian beliefs. However, Phillips told them they were free to purchase brownies, cookies, or regular cakes from the bakery.

The Long Legal Road
After their Cakeshop visit, Craig and Mullins filed a complaint with the CCRC under the state’s anti-discrimination laws related to places of public accommodation (section 24-34-601, C.R.S.), which prohibits businesses open to the public from discriminating against customers on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. The complaint resulted in a lawsuit, Craig v. Masterpiece Cakeshop, which the CCRC decided in favor of the plaintiffs. Phillips appealed the decision to the Colorado Court of Appeals, which affirmed the CCRC’s decision and order.

In each proceeding, the legal argument presented by Craig and Mullins was that Cakeshop, a place of public accommodation, had discriminated against them based on their sexual orientation. Phillips, on the other hand, argued that requiring him to create cakes for same-sex weddings would violate his right to free speech by compelling him to express a message with which he disagreed and would also violate his right to the free exercise of religion.

The Colorado Supreme Court declined to hear an appeal, but the U.S. Supreme Court granted cert and agreed to hear the case in its 2017 term. After multiple filings from both parties, along with the aforementioned amicus briefs (from parties ranging from the Trump Administration to the Southern Poverty Law Center), the Court heard oral arguments on December 5, 2017. The 7-2 opinion, authored by Justice Anthony Kennedy, was released on June 4, 2018.

The Bottom Line
In his majority opinion (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)), Justice Kennedy acknowledged that the Court appeared to face “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power.” However, the CCRC’s utter lack of neutrality in its deliberations made it unnecessary for the Court to determine the extent to which the CCRC’s final decision may have encroached upon Phillips’ rights.

Justice Kennedy quoted remarks made by two members of the CCRC at two of the public hearings that were held to consider Phillips’ case. Each of the quotes, according to Kennedy, exhibited “a clear and impermissible hostility” toward Phillips’ sincerely held religious beliefs. Moreover, wrote Justice Kennedy:

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention  those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Justice Kennedy then noted that on at least three prior occasions, the Colorado Civil Rights Division had considered the cases of bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division had found that the baker acted lawfully in refusing to provide such a cake.

In light of these facts, Justice Kennedy concluded that the CCRC’s hostility to religion was “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Because the CCRC failed to weigh the State’s interest against Phillips’ sincere religious objections in a neutral manner, as required by the Free Exercise Clause, the CCRC’s order concerning Phillips “must be set aside.”

So Phillips does not have to make a wedding cake for Craig and Mullins, but only because Phillips’ beliefs were not respected by the Colorado Civil Rights Commission. If another same sex couple walks into Phillips’ shop—or any other bakery—and orders a wedding cake, we don’t really know whether the baker is required under law to sell them the wedding cake. All we know is that the public body that decides the case must respect the sincerely held religious beliefs of the parties.

by Ed DeCecco

In part 1 of this article, I reviewed the trial court’s decision in Knight Foundation v. Trump. Perhaps it is not surprising that there could be a public forum related to the @realDonaldTrump account, which has 55 million followers, but even a local official’s social media account with just over 2,000 followers can be a public forum for purposes of the First Amendment, as illustrated by the next case.

Davison v. Loudon Cty. Bd. of Supervisors[1]
Defendant Phyllis Randall was a Loudoun County supervisor who personally maintained a public “Chair Phyllis J. Randall” Facebook page. In response to comments Plaintiff Davison made at a public meeting about other public officials, Ms. Randall blocked Mr. Davison from the page for about 12 hours. She then thought the better of it, and removed the block. Unfortunately for her, the damage was done, and Mr. Davison sued her over the block.

Ms. Randall claimed that her Facebook was just a private account, and, therefore, she was free to manage it as she saw fit. Based on the following factors, however, the trial court determined that she was operating the page under the color of state law:

• The page was created to address her new constituents;
• She used it as a tool of governance by, among other things, holding back-and-forth constituent conversations and announcing her activities as Chair and important events in local government;
• She used county resources to support the page insofar as her chief of staff assisted her in maintaining the page, and she included links to materials created by county employees or made with county resources;
• She “swathe[d] the ‘Chair Phyllis J. Randall’ Facebook page in the trappings of her office” by, among other things, referencing her title, listing her county information, categorizing the page as that of a public official, addressing her posts to “Loudon”, submitting posts on behalf of the Loudon Board of Supervisors as a whole, asking her constituents to communicate with her on the page, and typically posting matters relating to her office.[2]

Likewise, because her block of Mr. Davison was in response to comments he made at a public meeting, the court determined that the act of blocking also arose out of public, not personal, circumstances.

The court next determined that Ms. Randall violated Mr. Davison’s rights under the U.S. and Virginia Constitutions. Mr. Davison’s criticisms of official conduct, while personally offensive to Ms. Randall, were protected speech. In addition, Ms. Randall created a forum for speech by creating her Facebook page.

In reaching this conclusion, the court focused on two features: The nature of Facebook and how the defendant used it. The court observed that “[w]hen one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information.”[3] Moreover, Ms. Randall’s practice contributed to the creation of the forum. She deliberately permitted public comments on the page and allowed virtually unfettered discussion on it. She also affirmatively solicited comments from her constituents—”I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, complaint, or just your thoughts. However, I really try to keep back and forth conversations … on my county Facebook page (Chair Phyllis J. Randall) or County email….” (gratuitous capitalization included in original).[4] To the court, this was more than enough to create a forum for speech.

Ms. Randall did not have a neutral policy or practice that she applied in an evenhanded manner, but rather blocked Mr. Davison based on his criticism of her colleagues in county government. As such, the court did not worry about the specific type of forum that was created, because it determined that Ms. Randall’s block was viewpoint discrimination, and viewpoint discrimination is prohibited in all forums. As a result, the court entered a declaratory judgment in favor of Mr. Davison’s First Amendment claims, and the Loudoun County Board of Supervisors has since appealed the decision.

Hargis v. Bevin[5]
Not all recent decisions concerning social media pages, however, have gone against elected officials. A federal district court ruled against citizens who sued Kentucky Governor Matt Bevin because they were blocked from his Facebook and Twitter accounts.

As in the other cases, it appeared that the plaintiffs were blocked based on their criticism of the public official hosting the page. One plaintiff was blocked from Twitter after making comments about the governor’s tardy property tax payment, and the other was blocked on Facebook after criticizing the governor’s right-to-work policies. Plaintiffs said the blocks violated their First Amendment rights to engage in protected public speech in a traditional public forum. Governor Bevin argued that their comments were off-topic and detracted from his ability to communicate with the public on his chosen topics and, therefore, the blocks were a reasonable limitation on speech.

The court disagreed with both sides. Fortunately for Governor Bevin, his error was failing to take his argument far enough, as the court determined that his use of the privately owned social media accounts to speak on his own behalf as a public official constituted government speech. As discussed in part 1 of this article in the context of the Trump case, government speech is not subject to the requirements of the First Amendment. Moreover, the governor never intended his accounts to be a forum whatsoever, and he had no constitutional obligation to listen to everyone who wishes to speak to him. Thus the court determined that “public officers can ‘speak’ through a privately owned platform like Twitter and Facebook, and they can choose whom to listen to on those platforms without offending the First Amendment.”[6]

In reaching this conclusion, the court also discounted the effect of the block, as the plaintiffs were prevented only from having a direct relationship with the governor; they were not blocked from speaking on Twitter or Facebook altogether. Accordingly, the court denied the plaintiff’s preliminary injunction. The court, however, also observed that its decision did not necessarily leave the plaintiffs without any recourse: “Though Plaintiffs might disagree with [the governor’s] social media practices, the place to register that disagreement is at the polls.”[7]

No word at this time whether the plaintiffs intend to appeal the decision or simply register their disagreement at the polls.

Other Cases
The three cases discussed in parts 1 and 2 of this article demonstrate different approaches that trial courts have taken in cases against public officials who have blocked people from their social media accounts. It is important to note that none of these decisions are binding in Colorado, and perhaps they won’t even survive appeal. It will be interesting to see what happens in these cases and others.

Other cases that may soon be decided are lawsuits against Maine Governor Paul LePage (Leuthy v. LePage); Arizona Congressman Paul Gosar (Morgaine v. Gosar); and Wisconsin State Assembly Speaker Robin Vos, State Representative John Nygren, and State Representative Jesse Kremer (One Wisconsin Now v. Kremer, et al.). All of these cases are still pending in federal district courts.

Finally, Maryland Governor Larry Hogan settled a lawsuit filed by the ACLU of Maryland relating to his social media accounts, with the state paying the plaintiffs $65,000 and the governor establishing a new social media policy to govern his social media accounts. The new policy prohibits viewpoint discrimination and allows commentary on his Facebook page on any topic he has addressed. Both sides appear to claim this result as a victory.[8]

 

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[1] Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702 (E.D. Va. 2017)

[2] Id. at 714.

[3] Id. at 716.

[4] Id.

[5] As of the date of this article, the case was not selected for official publication, but is available on Lexis at Hargis v. Bevin, 2018 U.S. Dist. LEXIS 54428 (E.D. Ken. 2018)

[6] Id. at 24.

[7] Id. at 21.

[8] http://www.baltimoresun.com/news/maryland/politics/bs-md-aclu-hogan-facebook-20180402-story.html

by Ed DeCecco

What do the President of the United States, a county supervisor from Virginia, three Wisconsin legislators, an Arizona congressperson, and the governors of Maryland, Maine, and Kentucky all have in common? If you said they are all elected public officials who were sued because they blocked people from their social media accounts, then you are either a really good guesser or a connoisseur of First Amendment social media jurisprudence. If you are in the latter category, then you can probably save yourself the trouble of reading further. But for the rest of you, this two-part article describes some recent trial court decisions in this area.

Knight First Amendment Inst. at Columbia Univ. v. Trump[1]
In 2009, Donald Trump created his @realDonaldTrump account, which prior to his inauguration he used for tweets about whatever caught his fancy, including politics. Since his inauguration, President Trump, with the assistance of White House Social Media Director Daniel Scavino, has used his account:[2]

• To announce, describe, and defend his policies;
• To promote his administration’s legislative agenda;
• To announce official decisions;
• To engage with foreign political leaders;
• To publicize state visits;
• To challenge media organizations whose coverage of his Administration he believes to be unfair; and
• For other matters, including occasional statements unrelated to official government business.

Six individuals did not like some of the president’s tweets and let him know by responsively tweeting messages critical of the president or his policies. Consequently, their accounts were blocked from @realDonaldTrump, which means they could not view tweets from that account, directly reply to the tweets, or view threads associated with the president’s tweets from their accounts. The Knight First Amendment Institute at Columbia University was not blocked, but it was deprived of the opportunity to read the reply posts that otherwise would have been tweeted by these individuals and others.[3]  Thus, six individuals and the Institute sued President Trump, Mr. Scavino, Sean Spicer (who was replaced by Sarah Huckabee Sanders when she assumed his White House position), and Hope Hicks in federal court alleging that the Twitter block violated their First Amendment rights. The trial court agreed.

After determining that the plaintiffs could sue Mr. Scavino and the President of the United States, the court then “turn[ed] to the First Amendment’s application to the distinctly twenty-first century medium of Twitter.”[4]  First, the court determined that the individual plaintiffs sought to engage in political speech, which is at the core of First Amendment protection, and it was not language excluded from First Amendment protections, such as obscenity, defamation, or fraud. Therefore, the speech at issue was protected speech.

Having determined that there was protected speech, the court next turned to whether the there was a public forum for speech on Twitter. Plaintiffs did not want to actually access the @realDonaldTrump account—to tweet from the account, receive his notifications, etc.—but rather sought access to the content of the tweets, the timeline comprised of the tweets, and the “interactive space” associated with each tweet (replies, retweets, and likes related to tweets). Even though Twitter is not government-owned, the manner in which the president controlled these three elements was sufficient to potentially qualify them as a public forum for purposes of the First Amendment.

There is a well-accepted principle that when the government speaks on its own behalf, First Amendment protections do not apply. As the Supreme Court stated, “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”[5]  In this case, the court acknowledged that the @realDonaldTrump tweets are solely the speech of the president or others in his administration, and, as such, the content of those tweets, along with the related timeline, was government speech.

In contrast, the interactive space created by each of the president’s tweets is not controlled by, nor closely identified with, the government, and therefore, it was not government speech exempt from the First Amendment. Instead, for purposes of the First Amendment forum analysis, the space was a designated public forum, which exists because the government has acted intentionally to create a forum in a space that is not a traditional public forum (streets, sidewalks, and parks). In the case of the president’s twitter account, the factors that led to the inference of governmental intent to create a public forum included:

• The @realDonaldTrump account is generally accessible to the public at large without limitation, and each member of the public could generally participate in the interactive space, unless he or she has been blocked);
• The account was “held out … as a means through which the President communicates directly with you, the American people!”[6]; and
• Twitter is compatible with expressive activity; the platform is designed for users to interact with one another in relation to their tweets, and users can petition their elected officials or otherwise directly engage with them.

Within this designated public forum, the record indisputably established that the plaintiffs were blocked as a result of viewpoint discrimination—plaintiffs criticized President Trump or his policies and were then blocked. Viewpoint discrimination is impermissible under any type of First Amendment forum analysis. Nonetheless, the president argued that the block was permissible because he retains a personal First Amendment interest in choosing with whom he associates and because he is free to ignore the plaintiffs.

The court recognized the legal principles underlying the president’s argument but thought he did more than ignore them. Instead of muting the plaintiffs, which would have allowed him to ignore the accounts that he did not wish to engage, he blocked the accounts. And blocking the accounts deprived the plaintiffs of the ability to interact with the rest of the @realDonaldTrump audience. As such, the court found, “[w]hile we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.”[7]

Finally, the court acknowledged that the injury to the plaintiffs was relatively minor given that they still had limited access to the president’s tweets and could tweet replies to earlier replies to the president’s tweets. Nonetheless, the inability to directly interact with the president’s tweets was significant enough of an injury to violate the constitution, and warrant declaratory relief against the president. After the decision, the president unblocked the seven plaintiffs. He did not, however, unblock all the accounts he blocked, and he has indicated that he intends to appeal the decision.[8]

In part 2 of this article, I will describe two other recent trial court decisions where public officials were sued for blocking people on social media. In one case, the court had a similar conclusion as in the Trump case, but in the other, the court rejected the plaintiffs’ claims.

 

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[1] As of the date of this article, the case was not selected for official publication, but is available on Lexis at Knight First Amendment Inst. at Columbia Univ. v. Trump, 2018 U.S. Dist. LEXIS 87432 (S.D.N.Y. 2018).

[2] These items were stipulated facts in the lawsuit.

[3] There were others. https://www.wired.com/story/donald-trump-twitter-blocked/

[4] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 38.

[5] Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).

[6] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 64.

[7] Id. at 70.

[8] http://money.cnn.com/2018/06/05/media/trump-twitter-block/index.html

by Julie Pelegrin

In December of 2015, we told you about the case of Masters v. School District No. 1, in which several teachers who were placed on unpaid leave by the Denver Public School District (DPS) sued the district for violating what they claimed were statutory rights to continued employment. Specifically, they claimed that the teacher employment statute creates a private contract between the teachers and the school district, and certain provisions of S.B.10-191 (S.B. 191) unconstitutionally interfere with that contract. They also claimed that the teacher employment statutes create a property interest in continued employment, which S.B. 191 unconstitutionally takes away.

S.B. 191 includes several provisions, one of which says that a teacher cannot be placed at a public school unless the principal of the school and two teachers who represent the school staff agree to the placement. This is called the “mutual consent” provision—both the employer (principal) and the employee (teacher) have to agree to the placement. S.B. 191 also says that, if a teacher who is displaced cannot secure a mutual consent placement within the shorter of 12 months or two hiring cycles, the school district may place the teacher on indefinite unpaid leave until he or she secures such a placement. Once the teacher secures a mutual consent placement, the school district must reinstate the teacher’s salary and benefits at the level they would have been at if the teacher had not gone on unpaid leave. To further refresh your memory regarding S.B. 191 and the facts of the Masters case, check out “Court Continues Consideration of S.B.191 Provisions for Unpaid Leave”.

In December of 2015, the Colorado Court of Appeals sided with the teachers, agreeing that S.B. 191’s unpaid leave provisions interfered with the teachers’ employment contract and unconstitutionally deprived them of a property interest in their salaries and benefits. But, we noted at the end of our article that DPS had just filed for review by the Colorado Supreme Court.

The Court granted review and on March 12 of this year handed down its decision reversing the court of appeals. Unlike the court of appeals, the Court decided that the teacher employment law passed in 1990 (the 1990 law) not only removed the word tenure, but also removed any legitimate expectation that a teacher may have in continued employment with the school district. For this reason, the teacher employment law does not create a contractual relationship between teachers and their employing school districts. And the teacher employment law does not give teachers a vested property interest in salary and benefits, so placing the teachers on unpaid leave does not violate their constitutional right to due process.

No Contractual Relationship

The teachers argued that the 1990 law created a contractual relationship between teachers and their employing school districts and that the provisions of S.B. 191 unconstitutionally interfere with that contract by allowing the school district to place them on unpaid leave.

In considering this claim, the Court found that, to interpret a statute as creating a contract, there must be specific language indicating that the General Assembly intended to create a contract that it would be unable to interfere with later. The teacher employment law in place before 1990 (the old law) used the word “tenure.” By definition, a teacher who has tenure cannot be summarily fired and thus has an expectation of continued employment. The old law also used entitlement language, stating that under certain circumstances a teacher was “entitled” to employment as a teacher. So the Court agreed with the court of appeals that the old law created a contractual relationship.

But when the General Assembly rewrote the teacher employment law in 1990, it removed the word tenure and it removed any references to an entitlement or to the duration of employment. The Court found that, by removing these references when the General Assembly passed the 1990 law, the General Assembly specifically did not intend to create an employment contract for teachers that it could not interfere with later. The 1990 law did not create a contractual relationship between teachers and their employing school districts. Therefore, the mutual consent requirements of S.B. 191 do not unconstitutionally interfere with a contract.

No property interest in salary and benefits

The Court also considered the teachers’ claim that they have a property interest in receiving their salaries and benefits that the school district cannot take away without due process—providing them at least notice and an opportunity to be heard.

The Court agreed that the constitution states a person cannot be deprived of “life, liberty, or property, without due process of law.” However, the constitution doesn’t define property; it is defined by rules or understandings that come from an independent source, such as state law. So, again, the Court looked at the 1990 law to determine whether it creates a property interest that is protected by the constitution. And they concluded that it does not.

As mentioned before, the 1990 law does not use the term “tenure” or other words of entitlement or other suggestions that employment—and the right to receive salary and benefits as a result of employment—is guaranteed to continue for any length of time. The General Assembly removed all of that language in 1990, and therefore the teacher employment statute does not create a property interest in salary and benefits. For this reason, when DPS placed the teachers on unpaid leave, it did not violate their due process rights because their expectation of receiving salary and benefits is not protected by due process.

It’s interesting to note that the Supreme Court decided a similar case at the same time that it decided the Masters case. Johnson v. School District No. 1 also involved a teacher—Linda Johnson—who sued DPS after they placed her on unpaid leave when she could not secure a mutual consent placement. She brought her case in federal court, claiming a violation of the federal constitutional guarantee of due process. The federal district court found that, since her employment was not actually terminated, she was not deprived of a property interest. She appealed the decision to the Tenth Circuit Court of Appeals, and they certified the legal questions to the Colorado Supreme Court.

The Court took the same approach in the Johnson case that they took in the Masters case and came to the same conclusion. In Johnson, they specifically found that, in passing the 1990 law and specifically removing the word “tenure” and the durational and entitlement language, the General Assembly intentionally eliminated any property interest in salary and benefits for teachers.

Application of the mutual consent requirement

The Johnson case addressed another interesting question concerning the mutual consent provision. Ms. Johnson argued that the mutual consent requirement should apply only if a teacher was removed from a school for one of the reasons listed in the statute: an enrollment decrease; restructuring for turnaround; phasing out a program; reducing programs; or reducing buildings, including closures, consolidations, or reconstitutions.

In Ms. Johnson’s case, DPS had tried to fire her in 2008, but after her termination hearing, the hearing officer recommended that she be retained. So DPS assigned her to a probationary position at a school building for the 2009-10 school year, which was extended for the next year. She was assigned to a different school for the 2010-11 school year. Throughout this time, Ms. Johnson tried to secure a permanent position, but was unable to do so. At the end of the 2010-11 school year, DPS put her on indefinite unpaid leave under the mutual consent provisions of S.B.191.

Ms. Johnson argued that, because she was not displaced for one of the causes listed in the statute, she should not be subject to the mutual consent placement requirements. However, in interpreting the statute, the Court found that the reasons for displacement listed in the statute were not exclusive. In applying various canons of statutory construction, the Court concluded that, in reading the statute as a whole, it appears the General Assembly intended the mutual consent provisions to apply regardless of the reason for which the teacher was displaced,. And to hold that mutual consent applies if the teacher was displaced because of one of the listed reasons, which have nothing to do with the teacher’s performance, but does not apply if the teacher was displaced specifically because of her performance would be absurd.

So, it appears that the constitutionality and application of the mutual consent provision of S.B.191 are settled issues. And, going forward, it appears that a teacher cannot claim to have a property right in his or her employment, salary, or benefits.