In an opinion by Reagan-appointed Judge James Fox, a federal court in North Carolina held that North Carolina can no longer issue license plates promoting an anti-abortion view unless it also provides supporters of reproductive choice with the opportunity to display a similar plate advertising their views — in Judge Fox’s words, “[t]he State’s offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.” During the debate over the 2011 law that authorized the anti-abortion plate, six amendments were offered authorizing plates that would have stated either “Trust Women. Respect Choice” or just “Respect Choice,” but each of these amendments were voted down. The final bill authorized the following plate:

Judge Fox’s decision will appeal to the United States Court of Appeals for the Fourth Circuit, which is one of the few federal appeals courts dominated by Democratic appointees. In 2004, the Fourth Circuit struck down a similar instance of viewpoint discrimination against supporters of reproductive freedom, although the three judges who decided that case could not agree on their reasoning.

Last February, the Washington legislature enacted a law prohibiting anyone from “advertising [the] commercial sexual abuse of a minor if he or she knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act.” The goal of this law — preventing child sex trafficking — is laudable, but the law’s wording was also sufficiently ambiguous that it could have endangered common social media websites or Craigslist-style classified ad pages. Indeed, the Internet Archive, a website that facilitates research by maintaining public archives of the World Wide Web, supported a lawsuit challenging the law because it feared that it could face felony charges for providing comprehensive web archives that would include some forbidden web advertisements. Last July, a federal judge temporarily blocked the law.

In the wake of these challenges, the state of Washington now admits that the law cannot be defended in federal court:

The state of Washington has abandoned its defense of legislation passed earlier this year that could have exposed website operators to legal liability if they inadvertently hosted advertisements for child prostitution. . . . . The legislation, known as SB 6251, was designed to fight the sexual exploitation of minors. But critics said language criminalizing the dissemination of advertisements which include “an explicit or implicit offer for a commercial sex act to occur in Washington” went too far. The Internet Archive worried that such ads could effectively make its archives of the Web illegal, since some websites included in the archives could fit the law’s definition of material soliciting prostitution. So it joined a lawsuit by Backpage.com, which was also challenging the law. . . .

And that’s not all. The state will pay $200,000 to defray the plaintiffs’ legal expenses, and Washington state attorney general Rob McKenna will “work with the Washington State Legislature to repeal the current unconstitutional version” of the law.

New York Times v. Sullivan is one of the two or three most important free speech cases in American history. In essence, New York Times held that reporters and other individuals cannot be held liable for making unintentionally false statements against public figures so long as they do not do so with “reckless disregard of whether [their statement] was false or not.” Without this decision, every writer, reporter and blogger in the country would live in constant fear that if they relied on the wrong source or made any of a number of innocent mistakes, the result could be financial ruin.

Indeed, nothing highlights the danger of a different legal regime more than the facts of the New York Times case themselves. Civil rights advocates ran an ad in the New York Times that includes a number of trivial factual errors, such as claiming Dr. Martin Luther King, Jr. had been arrested seven times when in fact he at only been arrested four times when the ad ran. Based on these minor errors, an Alabama court ordered the New York Times and the civil rights leaders to pay $500,000 in a transparent effort to shut down speech critical of Jim Crow — a practice which was very common in the segregationist south. So New York Times v. Sullivan did not simply protect journalism generally, it ended the apartheid states’ practice of deliberately intimidating people who report on civil rights by awarding massive libel awards to segregationists.

During a recent Charlie Rose interview, Supreme Court Justice Antonin Scalia had this to say about the decision:

One of the evolutionary provisions that I abhor is New York Times v. Sullivan. It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world. That’s what New York Times v. Sullivan says. That may well be a good system and the people of New York state could have adopted that by law, but for the Supreme Court to say that the Constitution requires that — that’s not what the people understood when they ratified the First Amendment. . . .

The issue is “who decides?” Who decides what’s right? And it’s the people. The background rule is democracy, and the rule of democracy is the majority rules.

Watch it:

Scalia’s professed love of democracy is admirable, but the truth is that Scalia only believes in the democratic process when democracy does what he wants it to do. He was one of the five justices who voted to give the presidency to George W. Bush, and he voted to strike down the Affordable Care Act based on reasoning that, in the words of a leading conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent.”

The following is the first in a series of posts about the annual meeting of the GOP’s most influential legal group.

No organization did more to shape our federal judiciary than the conservative Federalist Society. President George W. Bush raided their membership to identify his nominees to the federal bench. Their annual lawyers’ convention this week features 18 federal judges — plus Justices Antonin Scalia and Samuel Alito. In the same year that President Bush headlined their convention, four sitting Supreme Court justices also delivered remarks.

And the Federalists are not simply the breeding ground for new Republican judges, they are also the incubator of the conservative movement’s plans to rewrite the Constitution in the GOP’s image. In 2009 the Federalists published a white paper attacking the constitutionality of the Affordable Care Act that was largely ignored by reputable scholars because its arguments were terrible. Three years later, the Supreme Court came within a hair of taking health care away from tens of millions of Americans using reasoning similar to the Federalist Society’s paper.

So when a legal argument — even a bad one — is featured in a Society publication or at their national convention, the whole country should take heed. The misreading of the Constitution floated by the Federalists today is likely to wind up in an opinion by Justice Scalia tomorrow.

The Federalists picked an inauspicious moment for their annual lawyers’ convention this year — barely a week after President Obama vanquished a man who would have passed out even more black robes to their membership. So there was no lack of bitterness at their meeting this week. When one of the liberal speakers the Federalists invite as sparring partners for their conservative Illuminati suggested that state lawmakers should work with the federal government to provide health care for the least fortunate, an audience member audibly called out “she’s a fascist.”

The biggest loser in last week’s election was probably the religious right, however, which not only saw their hated president reelected but also witnessed what is likely the beginning of the end of anti-gay discrimination by American governments. So the convention’s panel yesterday morning on “The Future of Religious Liberty” opened with a barbaric yawp at social conservatives’ recent defeat. George Mason law Professor Helen Alvaré, a speaker who literally travels the globe speaking out against the dangers of “sexual expression by empowered women,” opened the panel by complaining about how President Obama’s reelection campaign convinced the nation that the religious right’s priorities are anti-woman — “women were invited to vote as if their ladyparts depended on it, but the last time I checked . . . Christians are not looking to excise those.”

Yet sitting just a few feet away from Alvaré was conservative scholar Michael Uhlmann, who suggested during the panel that current law, which exempts religious employers from parts of federal anti-discrimination law, should go much farther and exempt many for-profit companies as well. After the panel, ThinkProgress spoke with Uhlmann to give him a chance to clarify what he meant by his claim that far more companies should be able to ignore laws banning discrimination in the workplace. His response did far more to justify fears that conservatives desire a war on women than anything President Obama said during the campaign:

MILLHISER: The Catholic Church has a First Amendment right to say “we will not hire women for certain positions.” If I start an HVAC company, I do not have a right to say I will not hire a woman.

UHLMANN: Maybe not. Maybe, maybe not.

MILLHISER: Do you think I should [have the right to not hire a woman]?

UHLMANN: Presumptively, yeah. Why not? If, in fact, as it appears to be in the case of Hercules or Hobby Lobby, these are in fact rather religiously-devoted people that are running these enterprises.

To be fair to Uhlmann, he was unwilling to say that employers absolutely have a right to refuse to hire women — only that they “presumptively” have that right — but his proposed rule would, at the very least, require women unjustly fired for being women to jump over some very high legal hurdles before they could get their job back.

If the Federalist Society does not want people to think conservatives are anti-women, they should stop promoting speakers and policies that are anti-women. A good start would be disavowing the idea that companies have a constitutional right to fire someone for having a vagina.

Last week, Los Angeles voters approved Measure B, which requires adult film stars to wear condoms during sex scenes. Shortly after the measure passed, a trade group supporting the porn industry announced their intention to sue to have it struck down. According to a letter from the industry-affiliated Free Speech Coalition, “[w]e believe that the law is not only unconstitutional on the grounds of forced expression, but also falls within the jurisdiction of the state of California rather than local government. Therefore, we will file suit and challenge this intolerable law in court.”

As Antonio Haynes points out, the legal arguments backing this lawsuit are not implausible. To the extent that the ballot measure is understood as a restriction on adult filmmaker’s expression — as opposed to being viewed as a workplace safety regulation — the First Amendment does not often look kindly upon attempts to ban certain kinds of expression. Ultimately, however, the fate of the law may rest upon a factual disagreement between the law’s supporters and the adult film industry. Haynes claims that the porn industry’s existing testing regime is so effective that “rates of [STD] infection appear to be smaller in the adult film industry than in the population at large.” Meanwhile, a forthcoming study in the Journal of Sexually Transmitted Diseases found that “roughly a third of the 168 adult film actors who participated in the research project were found to have a previously undiagnosed STD.”

To the extent that the ballot measure can be justified as a relatively unintrusive way to cure a genuine public health problem, it is much more likely to survive constitutional scrutiny.

Judge Robert Cleland, a George H.W. Bush appointee and former Republican candidate for Michigan Attorney General, held yesterday that a private, for-profit outdoor power equipment company can ignore new rules requiring most employer-provided health plans to offer contraceptive coverage to women because the new rules conflict with the company’s owner’s religious beliefs.

There’s a lot to not like about Judge Cleland’s opinion, which often relies on cursory reasoning or fails to apply the correct legal standard. The plaintiffs, for example, sought what is known as a “preliminary injunction” which means that they wanted their client to be held immune from following the law until the court has sufficient time to fully consider the case. Under binding Supreme Court precedent, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Yet Judge Cleland never determines that this is the case. At one point, he says that it “remains uncertain” how to resolve a key prong of this case. At another point, he outright states that “[n]either Plaintiffs nor the Government have shown a strong likelihood of success on the merits.” For this reason, an appeals court should reverse Cleland’s order solely because he failed to apply the correct legal standard.

Cleland’s order also places him at odds with another opinion written by a different George H.W. Bush-appointed judge, which held that conservative Catholic bosses do not have a legal right to “force [their] religious practices upon others.” And it conflicts with a California Supreme Court decision upholding a similar birth control law. Five of the justices who joined that California opinion were Republicans.

The most unfortunate part of Cleland’s opinion, however, is his holding that a for-profit company can claim the same immunity from the law as an actual human being:

Weingartz Supply Co. is a secular, for-profit company that sells outdoor power equipment. Weingartz Supply Co. asserts, without contradiction, that it is a “family owned and operated business,” led by Daniel Weingartz as its president.

Neither the Supreme Court nor the Sixth Circuit has held that a for-profit corporation can assert its own rights under the Free Exercise Clause. The text of RFRA extends its protections only to individuals, not corporations. However, at least one Circuit has held that “a corporation has standing to assert the free exercise rights of its owners” when that corporation is closely held and “‘merely the instrument through and by which [the plaintiffs] exercise their religious beliefs.’” Further, the Supreme Court has famously recognized that First Amendment free-speech protection extends directly to corporations. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) It appears to the court that, although it is first impression for this Circuit, a strong case for standing, at least on a Stormans pass-through instrumentality theory, is sustainable.

Weingartz Supply Co. was founded as a family business and remains a closely held family corporation. Accordingly, the court need not, and does not, decide whether Weingartz Supply Co., as a for-profit business, has an independant First Amendment right to free exercise of religion. For the purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as “his company.”

It is one thing to say that the Catholic Church itself cannot be required to act contrary to its doctrine, which is why the church itself is already exempt from the birth control rules. Cleland’s opinion, however, holds that a power equipment sales company can enjoy identical rights to an actual religious entity, solely because it is owned by someone who believes their religious views should be imposed on others.

Last week, a Texas judge held that cheerleaders at a Texas high school could continue to display banners emblazoned with Bible verses and other religious messages during high school football games, at least for the time being:

A judge stopped an East Texas school district on Thursday from barring cheerleaders from quoting Bible verses on banners at high school football games, saying the policy appears to violate their free-speech rights.

District Judge Steve Thomas granted an injunction requested by the Kountze High School cheerleaders allowing them to continue displaying religious-themed banners pending the outcome of a lawsuit set to go to trial next June 24, Texas Attorney General Greg Abbott said. Thomas previously granted a temporary restraining order allowing the practice to continue.

As a matter of law, this is almost certainly wrong. As the Supreme Court explained in Santa Fe Independent School Dist. v. Doe, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” and Santa Fe also establishes that student-led prayers can nonetheless be an unconstitutional endorsement of religion. The cheerleaders’ banners were displayed at official school events by students speaking on behalf of the school while wearing official school cheerleading uniforms. While there are some subtle differences between the facts in Santa Fe and the cheerleaders’ banners, it’s hard to imagine that anyone seeing a school’s cheerleaders display a religious message at an official school event would not take that to mean that the school is endorsing religion.

And there, is another, even more distressing problem with these cheerleaders’ case. In 2010, another Texas cheerleader was sanctioned by the United States Court of Appeals for the Fifth Circuit because she sued after her school required her to cheer for a man who allegedly raped her. The core of the Fifth Circuit’s decision was that, in the alleged rape victim’s “capacity as cheerleader, [she] served as a mouthpiece through which [her] could disseminate speech namely, support for its athletic teams.” So cheerleaders are speaking on their school’s behalf while they are cheering, not on their own behalf, and thus can be required to convey the message the school wants.

To be fair, the Fifth Circuit is a federal court, while Judge Thomas is a state judge, so these cases took place in different court systems. Nevertheless, it is difficult to square one decision with the other. At the very least, alleged victims of rape should be able benefit from the exact same laws as everyone else.

An Illinois appeals court upheld a ruling Friday that exempted pharmacists with religious objections from prescribing emergency contraceptives, finding that the medical professionals were protected by state law. The plaintiffs, both individual pharmacists and corporations that own pharmacies, had challenged an order by then-Gov. Rod Blagojevich requiring that pharmacists sell “Plan B,” a brand of the contraceptive also known as the “morning-after pill.”

The court rejected the ACLU’s argument that prescribing emergency contraceptives fell under an exception in the Illinois Health Care Right of Conscience for “emergency medical care,” even though doctors testified that the contraceptive was most effective when taken immediately after unprotected intercourse.

The three-justice panel did narrow the scope of the lower court’s ruling, which had entirely blocked the governor’s requirement to provide contraceptives. The appeals court held instead that the state law merely prohibits enforcement of the order against plaintiffs who claim a religious exemption.

The court’s decision to allow individual pharmacists to claim the protection of the law is not particularly surprising, given the Illinois statute’s broad wording: “No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel.”

But it is perplexing, to say the least, that the court extended that protection to the corporate plaintiffs, which had established across-the-board policies of refusing to provide emergency contraceptives. In making no distinction whatsoever between the right of individuals to exempt themselves from the law because of their personal religious views, and the alleged rights of the corporate entity to impose those views on employees, the court not only raises the question of whether a corporation can exercise religion (at issue in Colorado litigation over contraception); it also disregards the statute’s explicit reference to ”physicians” and “health care personnel” individually, and not to pharmacies, hospitals or any other such entities.

Our guest blogger is Peter Swire, a Senior Fellow at the Center for American Progress and a professor of law at the Ohio State University.

The secret tape recording – was it illegal? Maybe yes (if they find who did it). But there are some intriguing defenses for the person who made the tape of Mitt Romney saying that 47 percent of Americans are “dependent upon government” and see themselves as “victims.”

At first read, the Florida wiretap law looks like it applies. Florida prohibits “interception” of oral communications, including a tape recording in person. Florida also requires consent from all parties before an oral communication can be recorded. Mitt Romney didn’t consent to the taping. So the person who made the tape could face criminal charges, likely a misdemeanor for a first offense.

But the unknown person who made the tape has at least three defenses. The first two defenses depend on interpreting Florida’s Section 934.02:

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

The first defense would argue that Romney was making a “public oral communication” at a “public meeting.” The tape was made at an official campaign fundraising event, so perhaps that is a big enough venue to count as “public.” On the other hand, the campaign appears to have tried hard to exclude all reporters and other members of the general public, so this defense seems fairly weak.

The second defense is more interesting. Did Romney have a justified “expectation” that no one would tape his speech before the packed room? In some earlier decade, the chances of a hidden recording device might have seemed remote. Today is different, though. Lots of people now carry video/audio recording devices. We call them “smartphones” and “laptops.” With changing technology, there is a strong argument that Romney assumed the risk that a staffer, guest, or server was recording his speech.

Third, the person who made the tape could argue that he or she was exercising First Amendment rights of freedom of speech and the press. Romney was making important remarks about the election – the core protected area of the First Amendment.

The First Amendment case law provides excellent protection for Mother Jones, who released the video. In the 2000 Bartnicki case, the Supreme Court held that the First Amendment protects the disclosure of illegally intercepted communications by a radio station and newspapers who did not participate in the illegal interception.

We don’t know whether the Bartnicki protection will extend to the person who taped and reported about Romney’s remarks. Linda Tripp was prosecute under Maryland’s all-party consent law for taping a call with Monica Lewinsky. Will Romney’s taper be far behind?