Conference Report – November 10, 2017 Conference

The Supreme Court issued orders from the November 9th conference on Monday morning.  The justices added three new cases to their docket and denied certiorari in a death penalty case from Alabama.

All three of the cases that were added to the docket are First Amendment cases. The first, National Institute of Family and Life Advocates v. Becerra, is a case brought by crisis pregnancy centers against the State of California.  The issue to be decided is whether the California Reproductive FACT Act’s required disclosures violate free speech protections in the First and 14th Amendments.  Crisis pregnancy centers (“CPCs”) are centers which provide some services for pregnant women and attempt to persuade women not to end their pregnancies.  As the Washington Post reports, some state legislatures have claimed that CPCs use deceptive and confusing advertising and may intimidate women who are unaware of the type of facility they are entering. The Reproductive FACT Act requires CPCs to disclose whether they have licensed medical personnel on staff and to inform women that California offers free and low-cost contraceptives and abortions to women who qualify for those services.

The CPCs who brought suit claimed that being forced to provide the disclosures required by the Reproductive FACT Act violates their First Amendment rights to free speech and free exercise of religion.  The Ninth Circuit upheld the law, holding that the state can regulate professional speech and that the sign did not encourage abortion but merely informed patients of available services.  In addition, the Ninth Circuit held that the state has a valid interest in safeguarding public health. The Supreme Court granted cert only as to the free speech issue and declined to take up the free exercise of religion argument.  This case will be watched closely by both sides of the abortion debate, and may have far-reaching effects.  As Dahlia Lithwick and Mark Joseph Stern at Slate argue, if California is legally unable to require that CPCs post truthful disclosures regarding medical licensure and state abortion services, then other states may not be able to force abortion providers to convey anti-abortion information.

The second case granted review, Lozman v. City of Riviera Beach, Florida, presents the question of whether a First Amendment retaliatory-arrest claim is defeated by the existence of probable cause. Fane Lozman, who will be presenting his second case on the merits to the Supreme Court, will be represented by the Stanford Law School Supreme Court clinic.  His arrest occurred after he refused to stop talking about local government corruption during a city council meeting, in spite of being directed by a councilmember to stop. Lozman claims that the arrest was retaliatory and violated his First Amendment right to free speech. The Eleventh Circuit ruled that because the jury found that the police had probable cause to arrest Lozman, his retaliatory-arrest claim could not survive.  As USA Today reports, Lozman’s counsel and others who have filed briefs in support of him, argue that retaliatory arrests against political activists, protesters, and the media are designed to stifle criticism of the government and violate the free speech rights of those who are arrested.

The third case added to the docket is Minnesota Voters Alliance v. Mansky.  The issue in this case is whether a Minnesota law which broadly bans all political apparel at polling places violates voters’ right to freedom of expression. According to the Duluth News Tribune, the law “prohibits anyone within 100 feet of polling places on election day from wearing ‘a political badge, political button or other insignia.’”  The lawsuit was brought by Andrew Cilek, an official of the Minnesota Voters Alliance, who was temporarily prevented from voting in 2010 after he arrived at a polling place wearing a “Don’t Tread on Me” t-shirt and a badge that stated, “Please ID me” with Election Integrity Watch’s website and telephone number printed on it.

According to CNN, counsel for Mr. Cilek and the Minnesota Voter Alliance argued in court papers that “Although this Court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech.”  The Eighth Circuit upheld the law, stating that the polling place is a nonpublic forum and that speech restrictions in such forums are constitutionally valid if they are viewpoint neutral and reasonable in light of the purpose of the forum.

Finally, the Court declined to grant review of the Alabama death penalty case Reeves v. Alabama.  The issue was whether a defendant may establish ineffective assistance of counsel using evidence other than testimony from trial counsel about his or her own strategic decisions under Strickland v. Washington; or whether the absence of such testimony makes the presumption of sound strategy categorically irrebuttable, as the Alabama Court of Criminal Appeals held.  In Strickland, the Court set out a standard for courts to use to determine whether counsel was constitutionally ineffective: (1) counsel’s performance must be deficient; and (2) the deficient performance must have prejudiced the defense in such a way that the defendant was deprived of a fair trial.

In 1997, Matthew Reeves was convicted of capital murder for the death of Willie Johnson in a robbery.  Reeves contends that although the trial court had granted his trial attorneys’ request for funds to pay for an expert to evaluate his intellectual disability, his attorneys never hired a mental health professional to do so.  In addition, Reeves contends that the expert that did offer testimony in his case was a court-appointed expert who only conducted limited examination of Reeves and did not speak with his attorneys until shortly before taking the stand.  The Alabama Circuit Court held an evidentiary hearing on Reeves’ post-conviction claims, but held that in spite of the substantial evidence presented regarding his intellectual disability and his counsel’s performance, the lack of testimony from his trial and appellate counsel was fatal to his claims of ineffective assistance of counsel. The Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court denied review.

Justice Sonia Sotomayor dissented from the Court’s decision not to grant review of this case, in which she argues that the court has never required that a defendant present testimony from counsel as evidence of his counsel’s actions in order to establish an ineffectiveness of counsel claim.  In fact, Justice Sotomayor argues, such testimony is not sufficient to find adequate performance if the full record “rebuts the reasonableness of the proffered justification.”  Justice Sotomayor concludes that Reeves provided ample evidence that met the Strickland standard and should have been granted review.  Justice Sotomayor was joined in her dissent by Justices Ruth Bader Ginsburg and Elena Kagan.  The dissent can be read here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

Leave a Reply

Your email address will not be published.