Judge Raymond Kethledge Applies Careful Scrutiny in Striking Contribution Ban, But Waves Through a Law Targeting a Union

January 26, 2017   •  By David Keating   •    •  , ,

Hon. Raymond Kethledge

United States Court of Appeals for the Sixth Circuit (2008-Present)

We found six cases where Judge Kethledge wrote or joined an opinion related to First Amendment free speech rights. I have ranked them according to my view of the relative importance of each opinion. The first three cases are important, and roughly equal in importance. Bible Believers, an en banc opinion, is just slightly less important. Kethledge joins this thorough opinion about the First Amendment’s application to the “heckler’s veto.” The last two cases appear fairly routine, but Big Dipper, a case about topless bar limits, drew a dissent.

Lavin v. Husted is one of the best I’ve read in preparing these reports. Kethledge’s careful scrutiny of a contribution ban is outstanding. In re US harshly rebuked IRS tactics in a case filed after the IRS Tea Party targeting scandal. In contrast to Lavin, Bailey v. Callaghan is disappointing because it fails to apply careful scrutiny to a law that targeted one union for disparate treatment due to its policy views.

Lavin v. Husted

An Ohio law banned Medicare providers from contributing to candidates for state Attorney General or county prosecutor. Several physicians challenged the law, and the district court granted summary judgment to the state. The appeals court reversed, holding that the law was not closely drawn and that the state had not demonstrated “how” its contribution ban furthered the anti-corruption interest.

Judge Kethledge wrote the opinion. Unlike many campaign finance cases, the opinion applied careful scrutiny to the law and found it unconstitutional. It’s a terrific opinion, one of the best I’ve read, in the way it applied scrutiny to the law and found insufficient justification for the limits. From the opinion:

An Ohio statute makes it a crime for state Attorney-General or county-prosecutor candidates to accept campaign contributions from Medicaid providers or any person with an ownership interest in a Medicaid provider….

The Secretary’s theory in support of the challenged contribution ban is that § 3599.45 prevents corruption. That interest, of course, is one that the courts have recognized as important. But … a state must do more than merely recite a general interest in preventing corruption. What Buckley requires is a demonstration, not a recitation….

We have nothing of that sort here. When pressed to explain how [the law] furthers the State’s interest in preventing corruption, the Secretary says that prosecutors have considerable discretion about whom to prosecute, that Medicaid fraud is a problem in Ohio (as it is elsewhere), and that, if prosecutors are permitted to accept contributions from Medicaid providers, they might choose not to prosecute contributor-providers that commit fraud. But the Secretary concedes that he has no evidence that prosecutors in Ohio, or any other state for that matter, have abused their discretion in this fashion. Indeed the Secretary concedes that he has no evidence at all in support of his theory that [the law] prevents actual or perceived corruption among prosecutors in Ohio. Meanwhile, the plaintiffs have evidence showing the contrary, in the form of affidavits from three former Ohio Attorneys General, each of whom says that “decision making in the Attorney General’s office regarding Medicaid fraud would not have been influenced by my campaign committee’s receipt of campaign contributions from individual Medicaid providers or those with ownership interests in them….” The Secretary’s claim that [the law] prevents corruption, therefore, is dubious at best.

But even if we were to accept this theory at face value, the ban is vastly more restrictive than necessary to achieve its stated goal. According to the State’s own statistics … only .003% of Ohio’s Medicaid providers – or 316 of them – were implicated in Medicaid fraud. And yet [the law] prevents all 93,000 of Ohio’s Medicaid providers from contributing to candidates for Attorney General or county prosecutor. Based on the numbers alone, therefore, the ban restricts “fundamental First Amendment interests,” much more broadly than necessary. And that is true even without considering the statute’s ban on contributions from “any person having an ownership interest in” a Medicaid provider.

It is not hard to imagine what a less restrictive ban might look like. Such a ban might permit contributions from Medicaid providers with clean records, but ban them from providers penalized civilly for billing violations…. And of course Ohio could have taken a qualitatively less restrictive approach, by limiting campaign contributions from Medicaid providers rather than banning them….

Legislators have some latitude in determining how to craft limits on campaign contributions, given that, as an empirical matter, courts are without a “scalpel to probe….” But neither can we stand by while the patient is euthanized. The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do. There is no avoiding the conclusion that the contribution ban … is not closely drawn. The ban is therefore unconstitutional.

In re US

NorCal Tea Party Patriots sued the IRS following the Tea Party targeting scandal. As noted in the opinion, NorCal “asserted claims under the Privacy Act, 5 U.S.C. § 552a, and under the First and Fifth Amendments to the U.S. Constitution…. The plaintiffs also sought to certify a class of organizations allegedly targeted by the IRS because of their political beliefs.”

In the course of the litigation, the district court ordered the IRS to produce certain documents. The IRS then eventually filed a petition for a writ of mandamus to the appeals court, seeking to stop the lower court from forcing disclosure of the documents, which the IRS claimed was contrary to law.

The appeals court interprets taxpayer privacy laws in the context of this litigation. As such, the ruling does not turn on the First Amendment. However, the decision allows for the litigation, which raises vitally important First Amendment concerns, to proceed.

Judge Kethledge wrote the opinion, which takes the IRS to task. From the opinion:

Among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen – Republican or Democrat, socialist or libertarian – should be targeted or even have to fear being targeted on those grounds. Yet those are the grounds on which the plaintiffs allege they were mistreated by the IRS here. The allegations are substantial: most are drawn from findings made by the Treasury Department’s own Inspector General for Tax Administration. Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so-called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called “unnecessary information.”

Yet in this lawsuit the IRS has only compounded the conduct that gave rise to it. The plaintiffs seek damages on behalf of themselves and other groups whose applications the IRS treated in the manner described by the Inspector General. The lawsuit has progressed as slowly as the underlying applications themselves: at every turn the IRS has resisted the plaintiffs’ requests for information regarding the IRS’s treatment of the plaintiff class, eventually to the open frustration of the district court. At issue here are IRS “Be On the Lookout” lists of organizations allegedly targeted for unfavorable treatment because of their political beliefs. Those organizations in turn make up the plaintiff class. The district court ordered production of those lists, and did so again over an IRS motion to reconsider. Yet, almost a year later, the IRS still has not complied with the court’s orders. Instead the IRS now seeks from this court a writ of mandamus, an extraordinary remedy reserved to correct only the clearest abuses of power by a district court. We deny the petition….

In closing, we echo the district court’s observations about this case. The lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws – all of them, not just selective ones – in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys in the district court falls outside that tradition. We expect that the IRS will do better going forward. And we order that the IRS comply with the district court’s discovery orders of April 1 and June 16, 2015 – without redactions, and without further delay.

Bailey v. Callaghan

After Republicans passed a Michigan law prohibiting public school districts from collecting union dues through payroll deductions, teachers’ unions sued, alleging the law violated the First Amendment and equal protection. The law stated “A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.”

The district court agreed with the unions. Judge Kethledge, writing for the majority, reversed the district court and upheld the law. He rejected the First Amendment claim, holding that payroll deductions are not speech. He rejected the equal protection claim, stating that the government interest in conserving resources passed rational basis scrutiny.

From his opinion:

The plaintiffs challenge Public Act 53 facially rather than as applied, which means “they confront a heavy burden in advancing their claim.” The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions” for union activities; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.

However, my reading of Ysursa is more ambiguous. Judge Jane Stranch’s dissent appears more persuasive. From her dissent (some internal cites omitted):

The majority spills little ink in its dismissal of the school unions’ free-speech challenge. In doing so, it mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination. Most concerning to me, however, is the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a “check on union power.” The foundational requirement of viewpoint neutrality means little if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state. The unanswered constitutional question in this case is whether the government may burden expression it disagrees with by selectively restricting access to public resources that facilitate that expression. The answer is no. The majority wrongly concludes otherwise….

[The law] affects only unions that represent school employees. Unions whose members work for any other [Public Employment Relations Act] PERA-regulated public employer remain free to collect dues using public-payroll systems. So the school unions filed suit, alleging that [the law]’s selective ban violates the Equal Protection Clause of the Fourteenth Amendment….

Little controversy … surrounds Ysursa’s holding that the Constitution does not require a state to facilitate all union speech by providing for universal payroll deductions, or to decline to do so for all – evenhandedness is the operative requirement. But Ysursa does not answer what happens when an enactment evades this requirement. And that, of course, is the question before us – whether Michigan’s choice to exclude just one subset of unions from the speech-facilitating mechanism of payroll deduction violates the First Amendment.

[T]he Ysursa majority reiterated that the law “by its terms” applies across-the-board, prohibiting “all employers” from using the payroll-deduction system to remit funds to all political organizations for all political issues, “regardless of viewpoint or message.” But if “the ban is not enforced evenhandedly,” the Court allowed, plaintiffs could “bring an as-applied challenge.” As the parties in Ysursa agreed that no viewpoint discrimination was afoot, the Court had no occasion to apply this principle….

Ysursa does not control analysis of a law that selectively prohibits access to payroll deductions to one group – school unions – allegedly to stifle expression of their disfavored viewpoint, but permits it to every other PERA-regulated union. The First Amendment interests here are clearly different than in Ysursa, where the parties agreed that there was no viewpoint-discrimination claim….

Michigan may deny all organizations access to its payroll-deduction system solely to save the state money. But it cannot justify unequal access to this speech-facilitating mechanism to a group that is indistinguishable from another group to whom access is given. “When speakers and subjects are similarly situated, the state may not pick and choose.” Perry, 460 U.S. at 55, 103 S.Ct. 948. Act 53’s underinclusiveness does not help to dispel an allegation of viewpoint discrimination….

Based on a determination that the school unions’ First Amendment claim is likely to succeed, and otherwise satisfies the requirements for a preliminary injunction, I would affirm the district court’s order granting the preliminary injunction. Because I believe that the majority’s refusal to engage in the analysis our precedents require has led it to wrongly reverse that order, I respectfully dissent.

Bible Believers v. Wayne County, Mich.

The Bible Believers thought the annual Arab International Festival might be a fertile ground for finding converts. Yet some of their tactics were provocative and ill-advised. Messages included “Jesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers,” and “Islam Is A Religion of Blood and Murder.” One Believer brought a severed pig’s head on a stick.

The crowd reacted. But the police failed to stop youths who pelted the Believers with debris. Instead, Wayne County sheriffs ordered the Believers out of the Festival, warning they would be cited for disorderly conduct if they refused. The Believers drove off in a van, but within a few blocks, officers pulled their van over. After almost 30 minutes, an officer cited the driver.

The Believers sued, alleging that Wayne County violated their rights of free speech and free exercise, protected by the First Amendment. The district court and a three-judge circuit panel sided with the county. The Believers asked for and received en banc review. This time, the Bible Believers won.

From the opinion, which Judge Kethledge joined:

[W]e find that Defendants violated the Bible Believers’ First Amendment rights because there can be no legitimate dispute based on this record that the [Wayne County Sheriff’s Office] WCSO effectuated a heckler’s veto by cutting off the Bible Believers’ protected speech in response to a hostile crowd’s reaction….

From a constitutional standpoint, this should be an easy case to resolve. However, it is also easy to understand Dearborn’s desire to host a joyous Festival celebrating the city’s Arab heritage in an atmosphere that is free of hate and negative influences. But the answer to disagreeable speech is not violent retaliation by offended listeners or ratification of the heckler’s veto through threat of arrest by the police. The adults who did not join in the assault on the Bible Believers knew that violence was not the answer; the parents who pulled their children away likewise recognized that the Bible Believers could simply be ignored; and a few adolescents, instead of hurling bottles, engaged in debate regarding the validity of the Bible Believers’ message. Wayne County, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler’s veto by allowing an angry mob of riotous adolescents to dictate what religious beliefs and opinions could and could not be expressed. This, the Constitution simply does not allow….

Because the Wayne County Defendants impermissibly cut off the Bible Believers’ protected speech, placed an undue burden on their exercise of religion, and treated them disparately from other speakers at the 2012 Arab International Festival, solely on the basis of the views that they espoused, Wayne County Defendants violated the Bible Believers’ constitutional rights under the First and Fourteenth Amendments. Deputy Chief Defendants are civilly liable to the Bible Believers for having violated law that is clearly established by the Supreme Court precedent set forth in Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). Wayne County is civilly liable because one of its chief legal policymakers counseled and authorized the Deputy Chiefs’ actions.

Big Dipper Entertainment, LLC v. City of Warren

Big Dipper Entertainment unsuccessfully tried to open a topless bar. It sued the city, alleging First Amendment violations. Judge Kethledge wrote the opinion upholding Warren’s site limits on “sexually oriented businesses,” affirming the lower court.

From his opinion (internal cites omitted):

[T]he speech at issue here is that conveyed by a topless bar; and in a democracy, it is only common sense to say that … [d]emocracies need political debate more than they do topless bars in order to function.

The caselaw reflects that reality. Normally a content-based restriction on speech is subject to strict scrutiny. But zoning ordinances that regulate adult businesses – which typically on their face are content-based – are treated differently. So long as they aim to limit the secondary effects of adult businesses, we treat the ordinances as content-neutral, which means they get less scrutiny….

Big Dipper says … the real reason that Warren amended [its law] was not to limit the secondary effects of adult businesses, but simply to prevent new ones from opening there. This is a difficult claim on which to prevail….

Warren has made that showing here. The city council received no less than 49 studies and reports concerning the secondary effects of adult businesses before enacting the [law]….

So we are left with 27 as the number of sites available for Big Dipper’s business. Meanwhile, it is undisputed that a total of two applications for adult businesses were filed in the city of Warren during the five years leading up to this lawsuit. That fact makes this case different from others on which Big Dipper relies. A supply of sites more than 13 times greater than the five-year demand is more than ample for constitutional purposes.

Judge Guy Cole dissented. He wrote: “a city must promptly provide both court and administrative review for a sexually oriented licensing system to be a permissible prior restraint under the First Amendment. Warren did not do so, so its licensing scheme is an unconstitutional prior restraint as applied here.”

Bentkowski v. Scene Magazine

Seven Hills Mayor David Bentkowski brought a defamation case against Cleveland Scene, a local weekly magazine. Mayor Bentkowski took offense to a “First Punch” column titled “The Bizarre Boy Mayor.” As noted in the opinion, “Bentkowski claims that two main portions of the article are defamatory: (1) the allegation that he “routinely tries to pull off stunts like limiting residents’ feedback at meetings and barring government employees from running for office”; and (2) the portion of the article related to the “young residents” letter, which Bentkowski alleges falsely implies that he sought personal information about his constituents, including young women, for illicit purposes.”

Bentkowski lost in district court, and the appeals court affirmed. From the opinion, which Judge Kethledge joined:

The specific language that Bentkowski “routinely tries to pull off stunts like limiting residents’ feedback at meetings and barring government employees from running for office” weighs in favor of actionability…. [W]e must [also] determine whether the statements are verifiable…. Whether Bentkowski had improper motives in sending the “young residents” letter is not verifiable because there are no objective tests to determine his internal motivation….

We consider whether the statements at issue are objective facts or subjective hyperbole. Here, the statements at issue were clearly made in the general context of opinion. The article uses words and phrases such as “super-duper cool,” “sweet,” “rad,” “killer,” “Autistic Village,” “student-council campaign speech,” and “political IQ of Quiznos’ lettuce.” It uses simile, hyperbole, and other figurative language to express ideas, and it is ridden with humor and sarcasm….

Based upon the totality of the circumstances, we are convinced that there is no genuine issue of material fact as to whether the statements at issue constitute fact or opinion: the ordinary reader would accept the article as opinion.

Because the article at issue constitutes protected opinion under the Ohio Constitution, we AFFIRM the district court’s grant of summary judgment.

David Keating

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