First Amendment

A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.

– Attorney Michelle Menken, arguing that the Massachusetts Peeping Tom law does not apply to her client, a man who was arrested for exercising his right to free speech — by taking “upskirt” pictures of women on the Boston subway.

This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

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At the end of August, the New Mexico Supreme Court ruled in Elane Photography v. Willock that a Christian wedding photographer violated the New Mexico Human Rights Act (NMHRA) when it refused to photograph a lesbian couple’s commitment ceremony. (New Mexico does not currently permit same-sex marriage, though all the parties and the court frequently refer to the ceremony as a wedding.) This week, one of the parties in a similar controversy in Oregon, Sweet Cakes Bakery, announced that it would be closing shop, citing its opposition to baking wedding cakes for same-sex couples.

Elane Photography argued that it did not violate the NMHRA but, if it did, this application of the law violated the photography business’s Free Speech and Free Exercise rights under the First Amendment. The court disagreed, writing that “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”

Personally, I’d vote for same-sex marriage if I lived in a state considering such laws. Polygamy too, for that matter. If you are listening for a full-throated defense of traditional, heterosexual marriage to the exclusion of state recognition of any other arrangement, you won’t hear it here. I’m inclined to support religious understandings of traditional marriage, but I’m libertarian enough to let everyone — straight, gay, or otherwise — suffer through the headaches of having the government divide your assets when you get divorced.

Still, using anti-discrimination laws to mandate that all businesses operating as public accommodations provide services to same-sex couples’ weddings sounds like an unnecessary imposition on the sincere religious beliefs of others — and a great way to end up with lousy wedding photos….

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She’s basically Boss Tweed in Tuscaloosa.

Ed. note: Above the Law will not be publishing on Monday, September 2, in observance of the Labor Day holiday.

* Municipal election fraud is being alleged in Tuscaloosa after a sorority bribed people with free drinks to get a University of Alabama Law grad elected (defeating the incumbent, another lawyer — and wife of a UA Law professor). The big question here is how f**king terrible is voter turnout in Tuscaloosa that a sorority can rig an election? [AL.com]

* A banned food truck launched a First Amendment suit after officials banned the truck for using an ethnic slur in the name. I haven’t seen a food truck shut down like that since “Steak Me Home Tonight.” [WSJ Law Blog]

* The NFL looks to London. Tax laws are one of many obstacles. [Grantland]

* From partner to delivery boy. But hey, definitely go to law school kids! [St. Louis Post-Dispatch]

* A thorough look at the legality of the pending Syria strike. Obama administration addresses these grave concerns with the phrase, “Talk to the hand.” [Foreign Affairs]

Pope Gregory XIII be RACEIST.

A Catholic lawyer, a Jewish lawyer, and a Muslim lawyer all walk into a bar. The Muslim lawyer says, “I’m filing an injunction to stop this den of sin from serving alcohol.” The Jewish lawyer says, “I’m suing you for working on the Sabbath.” The bartender looks at the Catholic lawyer and says, “Jesus, what do you want?” The Catholic lawyer says, “How the hell should I know? But I’ll take a scotch while you wait for an answer.”

It’s not every day that you see a person specify that they want a lawyer who is from a certain religious background. Law is generally a secular profession. Sure, Moses is the first law giver in the Judeo-Christian tradition, but the only God most lawyers consult before deciding whether or not to take a case is the one bathed in green.

Still, when you are a whack-job on Craigslist who is trying to mount an assault on the calendar, I suppose the only way you’re going to get help is with the aid of a true believer.

Yeah, you heard me right, I’m talking about a guy who wants to sue… somebody… over the calendar

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[O]n its face, the [bar passage] information is factual and uncontroversial. Prospective students are free to draw their own conclusions about its relevance. That [Southern California Institute of Law] may not like those conclusions is irrelevant.

– Judge James V. Selna (C.D. Cal.), in a tentative order dismissing the Southern California Institute of Law’s (SCIL) free speech suit against state bar officials, with prejudice. SCIL argued that having to share information on its website about its bar exam passage rates would force the school to adopt an “ideological belief that a law school should be judged by the passage rates of its graduates.” In the past five years, SCIL’s graduates have passed the state bar exam just 7 percent of the time.

(Keep reading to see Judge Selna’s full First Amendment smackdown.)

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“What I said was terrible, mean and downright stupid…. I wasn’t trying to scare anyone, I was trying to be witty and sarcastic. I failed and I was arrested.”

– Justin Carter, in a letter to District Judge Jack Robison

On February 14, in New Braunfels, Texas, Justin Carter was arrested on terroristic threat charges. Carter, then age 18, had been posting on a Facebook page for the game League of Legends. When a friend called Carter crazy, Carter allegedly volleyed back that, yeah, he was messed up in the head and that he was going to “shoot up a kindergarten, watch the blood rain down and eat the beating heart out of one of them.” A Canadian woman who viewed the comment reported Carter to law enforcement officials.

Carter’s father insists that his son immediately followed his first Facebook comment with “LOL” and “JK,” clear indications that Carter was . . . laughing out loud and joking when he wrote. Lest you think that explicitly stating that you are joking is enough to insulate your comments from criminal liability, Justin Carter was arrested, then charged by the Comal County Criminal District Attorney. In Comal County, txtspk cannot save you….

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I told my dad “Fudge you” just once. I was fifteen or sixteen and he was being a real butthole. Saying some crap about the clothes I was wearing. My jeans were too fricking big or something, I don’t know. Style, huh? Anyway, I was standing there with my big fricking jeans literally hanging off my backside, when dad starts in on me. Saying all his crap about my big fricking jeans. So I say it. I just up and say it. “Fudge you.” Life, as it has from time to time since that fateful moment, paused. And not slightly, but for, like, ten fricking minutes. Time just stood freaking still and the moments to come just waited there, I guess. Waiting to freaking happen cause time had stood still and all. Well, when time started up again, I hightailed it back to my room as my dad just stood there silently. Not a freaking word to be said, I guess. I must have sat in my room for two hours, until my mom came home and retrieved me from my self-imposed exile. “Cheese and rice, what did you say to your father? He’s sore as heck over something you said.” I told her and she blushed and I blushed and she told me I ought to apologize. She told me to pull up my pants, too. On account of my butt showing.

There are moments in life that just scream for curse words. For sailors, those moments take up their entire lives! For the rest of us, we must pick our moments carefully. One Connecticut man recently cussed a fudging blue streak all over his speeding ticket, earning the ire of the small town that issued the citation.

And now it’s not just a huge freaking deal, but also a possible crapstorm of constitutional proportions…

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‘Oh my God! My career! Nooooooooooo!’

A few weeks ago, we learned that when it comes to failed professional endeavors, hell hath no fury like a patent attorney scorned. Now we know the same sentiment applies to their failed romantic wranglings.

What would a patent partner do if a summer associate turned away his sexual advances? He’d do what any dork would: in the hopes of ruining her budding career, he’d obtain a movie clip of the girl in a state of undress and pass it around via email to more than 50 Biglaw attorneys.

Of course, this led to a disciplinary action in which the brokenhearted patent practitioner employed some pretty wild defenses, the most entertaining one being that his slut-shaming was beyond ethical reproach because it was constitutionally protected speech….

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Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.

At times, there’s no one in a more unenviable position than the chairman of the FCC. When not dealing with larger issues like net neutrality and wireless competition, you’re at the beck and call of every member of an Overly Concerned Citizens’ Group that feels the need to start a letter-writing campaign any time an expletive hits the airwaves.

Bono fired off an f-bomb at the Grammys and someone let Nicole Richie make the most of her what-am-I-for fame by giving her a microphone and allowing her to explain how difficult removing cow shit from a Prada purse is. The Second Circuit Court of Appeals has twice found the FCC’s rules on so-called “fleeting expletives” to be a violation of the First Amendment. That, of course, matters little to angry letter writers who somehow believe The Children will be encouraged to swear by potty-mouthed celebs…

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