Constitutional Civil Rights - Hon. C. Ashley Royal

• Publication year: 2004

Constitutional Civil Rightsby Hon. C. Ashley Royal^*

I. Introduction

The First Amendment presents some of the most nettlesome, yet interesting, issues for attorneys and federal judges. Once again this term, the court of Appeals for the Eleventh circuit dealt with some complex issues in cases involving nude dancing, freedom of the press, religious symbols, commerce, and the Confederate battle flag. The court even stirred nationwide controversy over its decision about a monument to the Ten Commandments in Alabama.

This Article highlights some of the key legal principles the court follows in ruling on First Amendment cases. The Article shows how the court, applying the same legal theories, reaches different results based on the facts of the case. This organization enhances the reader's understanding of these complex legal problems. This Article also considers in depth the issue of standing because the Eleventh Circuit stated this term that standing is "[p]erhaps the most fundamental doctrine that has emerged from the case-or-controversy requirement."¹

II. First Amendment

A. Standing

In Focus on the Family v. Pinellas Suncoast Transit Authority,² Focus on the Family ("Focus"), an evangelical organization, sued Pinellas Suncoast Transit Authority ("PSTA") seeking injunctive relief. Focus contended that PSTA violated its First Amendment rights by prohibiting it from advertising its conference on homosexuality, called "Love WonOut," on county bus stop shelters. A PSTA representative first agreed to let Focus advertise on the shelters and signed a contract, which prompted Focus to send artwork to the printer. When PSTA realized that the word "homosexuality" would appear in the advertisements, PSTA rejected them based on a provision in the contract that allowed it to control the content of the advertisements. Focus contended that this amounted to viewpoint-based restriction on its speech.³

The district court granted summary judgment to PSTA based in part on the position that Focus could not satisfy standing requirements for constitutional action because it could neither show actual nor future harm; therefore, Focus failed to prove injury in fact and causation.⁴ The court of appeals reversed and concluded that Focus had standing.⁵

Focus suffered an injury for standing purposes because PSTA had stopped Focus from advertising after it had spent time, energy, and money on the project, and the conference was probably less well attended because of the lack of advertising.⁶ These facts satisfied the requirement for an injury-in-fact or "an invasion of a legally protected interest which is . . . concrete and particularized,"⁷ as required under the first prong of Lujan v. Defenders of Wildlife.⁸

With respect to the second prong of the Lujan test — the requirement for proof of a causal connection⁹ — the court explained that proximate cause does not apply to the doctrine of standing.¹⁰ Instead, the court said that "even harms that flow indirectly from the action in question can be said to be 'fairly traceable' to that action for standing purpos-es."¹¹ Because Focus could show PSTA's direct involvement in rejecting the advertising campaign, it satisfied the causation prong.¹² The court of appeals cited the United States Supreme Court to expand on this point:

The essence of the standing question, in its constitutional dimension, is "whether the plaintiff has 'alleged such personal stake in the outcome of the controversy' (as) to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." The plaintiff must show that he himself is injured by

the challenged action of the defendant. The injury may be indirect, but the complaint must indicate that the injury is indeed fairly traceable to the defendant's acts or omissions.¹³ @@@

The record showed that a PSTA employee had told a Focus representative that PSTA rejected the advertisements because it did not like the word "homosexuality."¹⁴ The record also showed that PSTA rejected them because of their "political controversialism, offensiveness and their potential to subject a discernible social group to ridicule [which were expressly designated in the agreement as unacceptable]."¹⁵ Based on this evidence, the court found not only sufficient evidence of causation but also held that enjoining PSTA from enforcing the agreement could redress the wrong.¹⁶ Likewise, on the third element of the standing issue—redressibility—the court followed the causation analysis and said that if the agreement caused Focus to suffer injury, enjoining the enforcement of the agreement could redress the injury also.¹⁷ Thus, Focus satisfied the redressibility requirement for standing.¹⁸

The court further held that the district court erred in its denial of standing based on Focus's failure to show the need for prospective injunctive or declarative relief.¹⁹ To have standing to obtain forward-looking relief, a plaintiff must show that he will suffer more illegal conduct in the future.²⁰ A "merely conjectural or hypothetical . . . threat of future injury" is not enough.²¹ However, the court explained that "[s]tanding does not have to be maintained throughout all stages of litigation. Instead, it is to be determined as of the time the complaint is filed."²² Focus could show the need for declaratory relief because it alleged that it intended to have another conference in the future and would once again seek to advertise the conference.²³ Because Focus could show injury-in-fact, causation and redressibility, and the need for prospective relief, the court reversed the district court and held that Focus was entitled to be heard on its First Amendment claims.²⁴

In two other cases, the court of appeals held that the plaintiffs had no standing to challenge the actions of the government on First Amendment grounds.²⁵ In Women's Emergency Network v. Bush,²⁶ a nonprofit organization and several individuals challenged Florida's authorization of license plates stating "Choose Life" and the use of state funds generated from the sale of the license plates to help adoption agencies. A Florida statute authorized specialty license plates and the use of the money collected from the purchase of the tags for specific purposes.²⁷ Plaintiffs claimed that (1) the statute violated their freedom of speech by not offering a similar forum for pro-choice car owners, (2) it discriminated based on the viewpoint of the recipients of the money, and (3) it created an excessive entanglement of religion by delegating an important governmental function to religious organizations.²⁸

In holding that the plaintiffs had no standing, the court first noted that state taxpayers ordinarily lack sufficient interest to challenge laws of general applicability because "their injury is not significantly different from that suffered by taxpayers in general."²⁹ However, a relaxed standard applies in Establishment Clause violations alleged by taxpayers.³⁰ Under this relaxed standard, the taxpayer must demonstrate "a logical link between his taxpayer status and the challenged legislative enactment, and a nexus between his taxpayer status and the precise nature of the alleged constitutional infringement."³¹ Under the taxpayer standing analysis, plaintiff Becker showed that he resided in Palm Beach County, he paid taxes in the county, and the county expended municipal funds in negotiating a contract with the religious organization Catholic Charities. However, he could not show any injury because the mere negotiation of a contract with a religious organization does not create an Establishment Clause issue.³² Because the government had never entered into a contract with Catholic Charities, there was no contract to consider, and the court of appeals could not say that the government's actions were unconstitutional.³³ Thus, plaintiff's injuries were speculative and failed to satisfy Lujan's injury-in-fact requirement.³⁴ Moreover, under theories of individual standing and organizational standing, because plaintiffs had never attempted to present their pro-choice view on license plates under the same Florida statute, they could not show that the state had denied them the right to express their viewpoint.³⁵ The court stated that "[t]he First Amendment protects the right to speak; it does not give [a]ppellants the right to stop others with opposing viewpoints from speaking."³⁶

In Doe v. Pryor,³⁷ concerning gay rights, plaintiffs sued the Attorney General of Alabama as chief law enforcer of the state and claimed that an Alabama statute that criminalized deviant sexual intercourse violated their First Amendment rights.³⁸ The court of appeals ruled the plaintiffs had no standing to challenge the law because they failed to show they suffered any injuries fairly traceable to the action of the defendant.³⁹

To show that a criminal statute may chill expression protected by the First Amendment, a plaintiff must show "'that either (1) [they were] threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.'"⁴⁰ In Pryor plaintiffs could not show that they had been threatened with prosecution or that there was any credible threat of prosecution.⁴¹ Indeed, the Attorney General had expressly conceded in a supplemental brief that the Supreme Court's ruling in Lawrence v. Texas⁴² made the Alabama statute on private, consensual oral and anal sex unconstitutional.⁴³

B. Religious Symbols

Chief Justice Roy S. Moore of the Alabama Supreme Court placed a two-and-one-half ton monument of the Ten Commandments in the rotunda of the Alabama State Judicial Building under cover ofdarkness and without consulting his colleagues. In taking this action, he fulfilled a campaign promise to restore the moral foundation of law.⁴⁴

Three attorneys in Alabama, who regularly entered the judicial building while practicing law, sued Moore, asserting that his actions violated the Establishment...