US Supreme Court

The US Supreme Court on January 20, 2020, declined to take up Facebook vs. Patel, thus allowing a multibillion-dollar class-action lawsuit against Facebook to go forward.

The suit claims that Facebook violated Illinois law when it implemented a photo-tagging feature that recognized users’ faces and suggested their names without obtaining adequate consent. Facebook argued to the Supreme Court that the class-action case should not be allowed to proceed because the group of users have not proven that the alleged privacy violation resulted in actual harm.

The Illinois biometric privacy law, the most expansive of its kind, requires companies to obtain written consent from people before collecting sensitive information about their “face geometry.” Users can sue companies for up to $5,000 per privacy violation.

Business groups and tech companies for years have argued that lawsuits over privacy violations and data breaches should be dismissed because it is difficult to prove substantial harm. The Supreme Court still has not contended with the issue head-on, and federal courts of appeal are deeply divided over how much harm plaintiffs must show to bring their privacy claims to federal court.

The Illinois case had been put on hold until the high court responded to Facebook’s petition. Reported in: The Hill, January 21, 2020.

The US Supreme Court heard arguments on January 22, 2020, in Espinoza v. Montana Department of Revenue, a case that could dramatically alter the line separating church and state.

At issue is a Montana state constitutional amendment that bars direct and indirect taxpayer aid to religious institutions. Conservative religious groups and school choice advocates have long sought to invalidate state constitutional amendments that prohibit taxpayer funding from going to religious schools. Montana is one of 38 states with a “no-aid” provision, so the court’s eventual decision could have far-reaching consequences.

The case began in 2015 when the Montana Legislature passed a bill providing a dollar-for-dollar tax credit for individuals who donate to organizations that provide scholarship money to students in private schools. An organization called Big Sky began raising money to fund these scholarships, using the tax credit as an incentive. Of the 13 schools that got scholarship money from Big Sky, 12 were religious schools. Indeed, 70 percent of all private schools in Montana are religiously affiliated.

Ultimately, the Montana Supreme Court struck down the entire tax credit program for all private schools, religious and nonreligious alike. It said the tax credit conflicted with the state constitution, which bars all state aid for religious education, whether direct or indirect, including tax subsidies.

School choice advocates are now asking the Supreme Court to revive the scholarship aid program in its entirety. They are backed by the Trump administration, including Secretary of Education Betsy DeVos.

Kendra Espinoza, the lead plaintiff in the case, argues that the federal Constitution’s guarantee of equal protection of the law mandates that the tax credit program be revived and applied equally to all private schools, religious and nonreligious alike. Erica Smith, a senior attorney at the Institute for Justice, which for decades has been fighting to get rid of state constitutional provisions like the one in Montana, said, “Once you have these programs, you have to treat families going to religious schools equal to families going to nonreligious schools.”

The state of Montana, however, disagrees. It defends the state constitutional provision barring direct or indirect state aid, like tax credits, for religious education.

In recent years, the Supreme Court has moved away from the notion of a strict wall of separation between church and state and toward a greater accommodation of religion. It has, for instance, allowed states to provide vouchers to parents for use in both religious and nonreligious private schools.

But there is a difference between allowing and requiring, according to Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. “In the past, the court, echoing the framers of the Constitution, guarded against government-funded religion,” said Mach. “Now the court is actually considering not only allowing, but forcing taxpayers to subsidize religious activities.” Reported in: npr.org, January 22, 2020.

Colleges and Universities

Hartford, Connecticut

Two students are suing the University of Connecticut (UConn) for violating their free-speech rights when it attempted to expel them from college housing for allegedly using a racial slur. Their case, Mucaj v. University of Connecticut in US District Court, District of Connecticut, raises a question of how much authority a university has to punish offensive speech on its campus.

The students, Ryan Mucaj and Jarred Karal, both seniors, were arrested in October 2019 after the campus police tracked them down following the online posting of a video that allegedly shows the pair shouting a racial slur in a parking lot. They were charged with ridicule on account of creed, religion, color, denomination, nationality, or race, according to the Hartford Courant.

The lawsuit doesn’t dispute that the students used the slur but says the university’s attempt to terminate the students’ housing agreement after their arrest is unconstitutional.

Adam Steinbaugh, a First Amendment lawyer and an official at the Foundation for Individual Rights in Education, said the slur is protected under the First Amendment.

“There’s a common misconception that there is a hate-speech exception to the First Amendment,” Steinbaugh said. “The First Amendment protects even the most deeply offensive speech, including racially offensive speech.”

While the slur wasn’t directed at anyone in particular, its impact was still felt across UConn. The Daily Campus, a student newspaper at UConn, reported that students had protested and demanded that the university take action beyond simply arresting Mucaj and Karal.

“The environment at this school is too forgiving of incidents like this. The arrest of the students is definitely a step in the right direction,” Giuliana Marchetti, a junior, told The Daily Campus. “Students who commit this kind of offense will notice that nothing is happening, so they’ll think they can get away with it.”

The First Amendment protects speakers of slurs, Steinbaugh said, with limited exceptions. Court rulings on the amendment have spelled out a few “very narrow, well-worn categories,” including true threats, fighting words, and incitement, he said.

The university is attempting to punish Karal and Mucaj under a section of the code of conduct on disruptive behavior, which the lawsuit describes as “unconstitutionally overbroad.”

Steinbaugh said public universities across the country have similar policies, but not all opt to use them as UConn did. Those institutions must have some ability to restrict speech, he acknowledged: if a student were to disrupt a class or official activity with a slur, the institution would have more leeway to punish.

But “as a public institution, the university is bound by the First Amendment,” he said. “It’s a state actor. The First Amendment limits what it can do in response.”

In a preliminary ruling, the court said the two students can’t be kicked out of university housing while their First Amendment lawsuit continues. Reported in: Chronicle of Higher Education, January 15, 2020; Hartford Courant, January 24.

Ames, Iowa

Iowa State University changed some of its rules governing student speech on campus after a nonprofit organization, Speech First, challenged three university policies in court. The university dropped its limits on messages written in sidewalk chalk, ended its prohibition of student emails related to campaigns and elections, and will no longer contact nor meet with students accused of “biased” speech under the school’s Campus Climate Reporting System. In a negotiated settlement of Speech First v. Wintersteen et al., filed in US District Court for the Southern District of Iowa, Central Division in January 2020, the university agreed to make the policy changes permanent.

In the lawsuit, Speech First represented three individual students who identify as conservative and claim they are unable to express support for things like the Second Amendment and the reelection of President Donald Trump because of the current policies.

But other students believe these policies protect the student body from the promotion of hate speech, which was a reason the university had restricted use of written messages on ISU sidewalks to only university-recognized student groups. Reported in: WHO-13 News, January 6, 2020; speechfirst.org, March 13.

Public Art

New Orleans, Louisiana

The Sons of Confederate Veterans and concerned individuals lacked standing to pursue their First Amendment claims over the removal of Confederate monuments from the University of Texas’s Austin campus and a San Antonio park, the US Court of Appeals for the Fifth Circuit in New Orleans ruled in McMahon v. Fenves on January 3, 2020. Plaintiffs pursuing a constitutional claim—such as a free-speech claim—must be able to show that they have suffered a concrete and particularized injury distinct from the general public.

The decision covered two cases that originally were separate lawsuits.

In the University of Texas case, Major George Littlefield, a Civil War veteran, donated funds to the University of Texas to build a massive bronze arch, a statue of President Woodrow Wilson, and statues of several Confederate leaders, including Jefferson Davis, Robert E. Lee, Albert Sidney Johnston, and John H. Reagan.

The university placed the statues on campus but never built the bronze arch. Nearly a century later, the university president had the statues relocated. David McMahon, Steven Littlefield, and the Texas Division of the Sons of Confederate Veterans sued to force the university to reverse its decision relocating the statues.

In San Antonio, the city council gave the United Daughters of the Confederacy permission to erect a Confederate monument in a city park in 1899. About a decade later, two cannons were placed near the monument. About a century later, the city council passed an ordinance to remove the monument and cannons from the park. Richard Brewer and the Texas Division of the Sons of the Confederate Veterans sued the city in federal court in San Antonio.

The plaintiffs alleged that the removal of these Confederate monuments violated the First Amendment, because their removal amounted to the suppression of a particular political viewpoint.

However, in two separate opinions, federal district courts dismissed these lawsuits on the ground that the plaintiffs lacked the standing to sue. In both cases, the plaintiffs appealed to the US Court of Appeals for the Fifth Circuit, which consolidated the cases.

The Fifth Circuit panel affirmed the lower courts’ decisions. Writing for a unanimous three-judge panel, Judge Edith Jones explained the plaintiffs failed to show that the Confederate monuments were their speech. She explained that “plaintiffs fail to explain how these ties [to the monuments] give plaintiffs a First Amendment-based stake in the outcome of the litigation.”

In other words, Judge Jones reasoned, the injury suffered by the plaintiffs was more of a “generalized psychological injury, not a particularized free-speech one.” She concluded, the “plaintiffs have shown only a rooting interest in the outcome of this litigation, not a direct and personal stake in it.” Reported in: Freedom Forum Institute, January 8, 2020.

Privacy

New York, New York

The US Court of Appeals for the Second Circuit questioned the federal government’s warrantless searches for Americans’ data inside the National Security Agency’s (NSA) dragnets that are ostensibly aimed at foreigners. In a December 18, 2019, ruling in US v. Hasbajrami, the judges found that searching through the NSA’s Section 702 databases without a search warrant, as the FBI and the CIA are permitted to do, “could violate the Fourth Amendment, and thus require the suppression of evidence.” Considering themselves without sufficient information to rule on the merits, they instructed the district court to investigate whether government use of the NSA database for “such querying was reasonable.”

The defendant in the case is Albanian citizen and Brooklyn resident Agron Hasbajrami. In September 2011, authorities arrested him at Kennedy Airport. He had a one-way ticket to Turkey and, prosecutors said, a plan to continue on to Pakistan to pursue jihad. Facing federal charges, Hasbajrami asked prosecutors if evidence against him derived from warrantless surveillance. In secret, they had collected Hasbajrami’s emails through surveillance resulting from Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the NSA to collect massive amounts of internet communications and associated data, including from Americans’ international conversations, all without judicial approval or individual suspicion. Once obtained, federal agents applied for a FISA warrant on Hasbajrami, thereby laundering their illicit surveillance for use in prosecuting him.

The government, following a practice of not revealing how such surveillance impacts criminal prosecutions, deceitfully neglected to tell Hasbajrami how they got his emails in the first place. As a result, Hasbajrami pleaded guilty in 2012 and began serving a 16-year sentence for material support to terrorism.

But after the 2013 revelations of mass surveillance Edward Snowden provided to The Guardian and The Washington Post, the Justice Department revealed to Hasbajrami that it had lied to him. Hasbajrami argued that he had been denied critical information underlying his decision to plead guilty—as well as a shot at arguing his prosecution was unconstitutional—withdrew his plea, and sought to suppress the ill-gotten evidence.

By sending the case back to the lower court, the appellate court’s ruling is only a step toward judicially mandated constraints on locking people up based on such surveillance. It’s uncertain what the district court will ascertain.

Yet the step may be significant. “Critically, the court holds that the government does not have carte blanche to amass Americans’ emails and phone calls and search through them at will,” noted the ACLU’s Patrick Toomey, who submitted a brief in the case.

The ruling comes after the FISA Court ruled that the FBI’s use of the backdoor search provision is overbroad, abusive, and illegal. On one single day in December 2017, according to the court, the FBI conducted 6,800 searches through NSA databases of ostensibly foreign information using Americans’ Social Security numbers. More broadly, the FBI’s searches, the court found, were not “reasonably designed” to find evidence of crime, but were instead fishing expeditions. The total number of Americans surveilled remains unknown. Reported in: Daily Beast, December 24, 2019.