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Supreme Court Justice Breyer to retire

Justice Breyer has been facing calls to retire while Democrats can fill his seat in the highest court in the land.

Associated Press, USA TODAY

WASHINGTON Associate Justice Stephen Breyer is expected to step down this year after nearly three decades on the Supreme Court, opening a rare opportunity for President Joe Biden to name a replacement whocould influence the court for a generation.

Breyer, who usually votes with the high court's liberals, has had a profound impact on the American legal system, crafting landmark opinions on abortion rights, the First Amendment and the inner workings of government. He has also written biting dissents on the death penalty, campaign finance and Second Amendment issues.

Here's a look at some of his more memorable opinions:

Mahanoy Area School Districtv. B. L. (2021): Held that a Pennsylvania school district violated the First Amendment when it punished a student for avulgar social media post written off-campus. Writing for an 8-1 majority, Breyer rejected the idea that schools may never regulate off-campus speech but said the school's interests were not sufficiently implicated to justify penalizingthe student's speechin this case.

"It might be tempting to dismiss (the student's)words as unworthy of the robust First Amendment protections discussed herein," Breyer wrote. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

Read: MahanoyArea School Dist. v. B.L.

June Medical Services v. Russo (2020):Struck down a Louisiana law that required doctors performing abortions to have admitting privilegesat a hospital within 30 miles of the abortion clinic. Writing for the plurality, Breyer found the law placed burdens on women without providing any "significant health-related benefits," and he laid out the burdens in detail.

"A Shreveport resident seeking an abortion who might previously have obtained care at one of that citys local clinics would either have to spend nearly 20 hours driving back and forth to (a) clinic twice, or else find overnight lodging in New Orleans," he wrote. "Both experts and laypersons testified that the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them."

Read:June Medical Services v. Russo

What's next: What is the process for Supreme Court nominations? Here's what's next and how long it could take.

Whole Woman's Health v. Hellerstedt (2016): In aprecursor toJune Medicaldealing with similar circumstances, the court struck down a Texas law that required abortion providers to have admitting privilegesat nearby hospitals. Writing for a 5-3majority, Breyer said that courts must balance the ostensible benefit of abortion restrictions againstthe burdens the law imposes on access to abortion.

"We have found nothing in Texas record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas legitimate interest in protecting women's health," he wrote.

Read: Whole Women's Health v. Hellerstedt

Stenberg v. Carhart (2000): Yearsearlier, Breyer wrote for a 5-4 court striking down a Nebraska law banning late-term abortions. Physicianswho performed the procedure could have their medical licenses pulled and face prosecution. Breyer wrote that the law was unconstitutional under Roe v. Wade and other cases because it put an undue burden on a woman's right to choose whether to have an abortion. Specifically, the majority concluded the law also could be used to prosecute doctors who also performed second-trimester abortions using the most common method to terminate a pregnancy.

"Allthose who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," Breyer wrote. "Theresult is an undue burden upon a woman's right to make an abortion decision."

Read: Stenberg v. Carhart

Denver Area Educational Telecommunications Consortium v. FCC (1996): Writing for a 6-3 majority, Breyer struck down a provision of a 1992 federal law allowing cable companies to ban offensive or indecent programming on public access channels. The court upheld another provision allowing cable providers torestrict the transmission of "patently offensive" programming on leased access channels.

"The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships," Breyer wrote. "In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear."

Read: Denver Area Ed. Telecommunications Consortiumv. FCC

Dissenting opinions may reflect the losing side of a case butthat doesn't mean they're unimportant. Well-crafted dissents are often cited in future litigation. And the Supreme Court's history is replete with situations where a majority of the justices revisited an old controversy and found an earlier dissent influential in arriving at their decision.

Dissenting and concurring opinions can also signal a justice's thinking on a given issue to astute lawyers who may craft future challengesto address that approach.

NFIB v. Occupational Safety and Health Administration (2022):Breyer wrote a dissent, joined by the court's other liberals, in the recent challenge to Biden's COVID-19 vaccine-or-testing mandate for large employers. In an unsigned opinion, the court ruled that OSHA likely didn't have the authority under a 1970 law that authorizes the agency to impose those requirements and it blocked the mandate's enforcement. Breyer argued the text of the law, while broad, seemed to give OSHA the power to impose the requirements. And he asserted that the court's opinion could have longstanding effects on the government's ability to respond to emergencies.

"It stymies the federal governments ability to counter the unparalleled threat that COVID-19 poses to our nations workers," Breyer wrote. "Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies."

Read: NFIB v. OSHA

Cedar Point Nursery v. Hassid (2021):In a6-3 ruling, the majority concluded that a California law that permitted labor unions to organize on private farms was ataking ofprivateproperty without justcompensation in violation oftheFifth Amendment. Writing for court's liberals, Breyer asserted there was no "physical appropriation" of property and raised concerns about the decision'simpact on safety inspections.

"I do not believe that the court has made matters clearer or better," Breyer wrote. "Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the courts case law sets forth. 'Better the devil we know...'"

Read: Cedar Point Nursery v. Hassid

Glossip v. Gross (2015): A 5-4 majority of the court held thatOklahoma could use midazolam as an initial drug to administer a death sentence, despite some evidence that it risked subjecting a death row inmate to pain. In an often-cited dissent, Breyer called for a broader reexamination of the death penalty.

"Rather than try to patch up the death penaltys legal wounds one at a time, I would ask for full briefing on a more basic question: Whether the death penalty violates the Constitution," he wrote. "At the very least, the court should call for full briefing on the basic question."

Read:Glossip v. Gross

Parents Involved in Community Schools v. Seattle School District No. 1 (2007): A divided court struck down an effort in Seattle to use race as one factor in deciding which schools students would attend to promote racial diversity. Breyer wrote an impassioned dissent asserting the plurality opinion worked against the vision laid out in the court's landmark 1954case Brown v. Board of Education, which ended school segregation.

"What of the hope and promise ofBrown?" Breyer wrote. "In this courts finest hour,Brownv.Board of Educationchallenged this history and helped to change it... The pluralitys position, I fear, would break that promise. This is a decision that the court and the nation will come to regret."

Read: PICS v. Seattle School District

Clinton v. New York (1998): Having worked in all three branches of government, Breyer seemed to enjoy delving into intergovernmental disputes. In this case, a 6-3 court struck down a president's ability to veto certain provisions of legislation approved by Congress, known as the line-item veto. Breyer wrote in dissent that nothing in the Constitution prohibited the power.

"In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law," he wrote. "Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the president."

Read: Clinton v. New York

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Justice Stephen Breyer's notable majority opinions and dissents, from abortion to the death penalty - USA TODAY

Over the past week, Boston Mayor Michelle Wu has been caught up in two seemingly unrelated controversies. What they have in common is that they touch on important First Amendment issues.

In the first instance, her office sent out a poorly worded advisory asking that reporters keep their distance from homeless people while city workers removed their encampment at Massachusetts Avenue and Melnea Cass Boulevard. In the second, hate-spewing demonstrators have been gathering in front of Wus house in Roslindale to protest a requirement that city employees be vaccinated against COVID-19 and that restaurants and other businesses mandate vaccines.

The media guidelines were sent out on Jan. 11, the day before the city cleared the area around Mass. and Cass. Reporters and photographers were advised to stay 50 feet away from individuals; to refrain from capturing images of individuals faces; and to allow enough space for outreach workers to engage with individuals in private.

The 50-foot request was later amended to 10 feet an improvement, but still not enough for reporters to walk up to people and ask if theyd like to be interviewed. As soon as I saw the guidelines, I emailed the press office and said You cant tell us how to report, Boston Globe columnist and associate editor Adrian Walker wrote in a public Facebook comment.

Kelly McBride, senior vice president and chair of the Craig Newmark Center for Ethics and Leadership at the Poynter Institute, also took a dim view of the advisory.

Im always wary when government officials start telling the press how to behave ethically, she said in an emailed comment. This may sound shocking, but sometimes government folks are more interested in avoiding accountability for their actions and also making themselves look good than they are in nurturing a free press that serves the public interest.

Despite liberal use of the word please, its unclear whether City Hall intended the guidelines to be mandatory; the mayors press office declined to comment. In any case, it doesnt appear that there were any serious efforts at enforcement, as reporters were able to interview homeless people while outreach workers were moving through the area.

City officials came over to me and asked me not to take pictures of peoples faces, which I wouldnt have done anyway without permission but I appreciated they also told me to back up and give space, but mostly I was fine interviewing people, my GBH News colleague Tori Bedford told me by email. She added: I think the intention was to prevent the callous treatment of people that occurred last time, but it neglected how the press acts as an accountability agent to witness any callous treatment by the city and its not the citys place to tell us how to do our jobs on a public street.

As Bedford said, there have been reports of journalists acting insensitively toward homeless people during previous operations at Mass. and Cass. But its crucial that the media be allowed access to make sure that city workers are treating people with respect as well. Besides, the encampment was on public property, and attempting to restrict where reporters could go and what they could do was a violation of the First Amendment's guarantee of freedom of the press.

Paul Bass, the editor and founder of the New Haven Independent, made another important point in a public comment: the guidelines denied agency to the very people the city was attempting to protect. I agree such rules are outrageous, he wrote. They are also patronizing and controlling: homeless people, like anyone else, have the right to decide if they want to tell their story!

Veteran political analyst Jon Keller of WBZ-TV (Channel 4) said Mayor Wus advisory appeared to go beyond anything he had seen from Mayors Tom Menino or Marty Walsh.

Without knowing for sure, I suspect that they didnt want any embarrassing feedback from these interactions to be broadcast, Keller said. It had the whiff of something drawn up by a PR or a press aide with the mayors image and the image of her administration foremost in mind. Now, that may well be their job as they see it, but this is not the right time or situation.

Not to make too much of this despite the admonition to keep 10 feet away, the media were not prevented from doing their jobs. But if city officials had problems with the way individual journalists had behaved on previous occasions, they should have dealt with them directly rather than send out a blanket set of rules.

***

How much abuse should elected officials have to put up with when theyre at home with their families? In recent days, a small group of bullhorn-wielding protesters has been gathering in front of Mayor Wus house in Roslindale to denounce her vaccination mandate. Wu lives in a two-family home with her husband, her two children and her mother.

As Wu tweeted over the weekend, the rhetoric has become increasingly ugly. Theyve shouted on megaphones that my kids will grow up without a mom bc [because] Ill be in prison, she said. Yesterday at dinner my son asked who elses bday [birthday] it was bc the AM chant was Happy birthday, Hitler.

In an ideal world, protesters would restrict their activities to public venues and events and leave political figures alone when theyre home. But social mores are breaking down and incivility is on the rise. And its not just Wu. Gov. Charlie Bakers home in Swampscott has been the site of multiple protests. There has even been speculation that the protests were among the reasons Baker decided not to seek a third term. Certainly Wus and Bakers neighbors didnt sign up for such abuse.

The challenge is that any action against such demonstrations would clash with First Amendment guarantees of freedom of speech, assembly and petitioning for the redress of grievances. The protesters are, after all, on public streets.

State Rep. Steven Howitt, a Seekonk Republican, has filed legislation to ban demonstrations within 100 yards of an elected officials home. If such a bill were to become law, theres little doubt that it would face a constitutional challenge. But its also possible that a narrowly drawn statute focusing on noise and intrusiveness would pass muster as a content-neutral time-place-and-manner restriction, according to the noted civil-liberties lawyer Harvey Silverglate.

The alternative would be to move high-profile politicians into official residences away from residential neighborhoods. That would be a shame. It strikes me as a good thing that our leaders live among us, even if the benefit is mainly symbolic. Sadly, that may no longer be possible.

GBH News contributor Dan Kennedys blog, Media Nation, is online at dankennedy.net.

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The First Amendment and Mayor Wu: What press restrictions and vile demonstrations have in common - wgbh.org

Your Turn Mike Berry Columnist

There is no COVID-19 exception to the First Amendment, wrote U.S. District Court Judge Reed OConnor. His words, directed to the United States Navy, should remind all Americans and especially those in positions of authority that the Constitution refuses to bend to authoritarian impulses.

Earlier this month, OConnor issued a preliminary injunction against the U.S. Navy, preventing it from taking any further action against the 35 Navy SEALs and Special Warfare service members represented by the First Liberty Institute. It also provides hope for the thousands of members of the military who bravely raised religious objections to receiving the vaccine knowing full well their fates had long been sealed.

Those service members now have a roadmap for how to challenge the unjust policies and procedures described by OConnor as theater the Department of Defense has used to trample upon our service members constitutional rights.

Soldiers fight for our rights dont infringe theirs

While it is true our service members give up much to protect our freedoms, as OConnor underscored, we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.

That includes when it comes to the vaccines. Thus far, the Navy has granted hundreds of medical and administrative exemptions to sailors. Ironically, there is even an exemption available for sailors who are participating in clinical vaccine trials that use placebos. In other words, sailors can be exempt from the vaccine if they participate a clinical trial during which they remain unvaccinated.

In contrast, the Navy has been entirely unaccommodating to the SEALs and thousands of other service members whose sincere religious beliefs forbid them from receiving the vaccine.

The Navy SEALs First Liberty represents Christians of various denominations. Each presented evidence and arguments to the court explaining the nature of their religious objection to the COVID vaccine. Some earnestly prayed to God for guidance and believe receiving the vaccine is a mortal sin. Some object because of the vaccines well-documented ties to the use of aborted fetal cells during its development.

I too, as a military reserve officer, have sought an accommodation due to my religious objection to the vaccine. Although I am still awaiting a response, I do not expect to be the first and only approved religious accommodation.

I have had many conversations about faith and service with these men. The Navy can no more question their spiritual devotion than it can question their patriotism or their war-fighting abilities.

Yet the Navy has issued zero accommodations for those asserting a religious objection to the COVID vaccine. Zero. The Navy, according to OConnor, merely rubber stamps each denial. Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and Americas values. And punishing him or her for simply requesting a religious accommodation is purely vindictive and unlawful.

No attempt to accommodate SEALs

There was a time when our military found a way to accommodate service members religious beliefs while allowing them to serve. During World War II, the Army tried to court-martial Private Desmond Doss because he refused to carry a weapon due to his religious beliefs that taking life is wrong. The Army came to its senses and allowed Doss to serve as a non-combatant medic. Doss famously went on to earn the Medal of Honor for his heroic feats during the Battle of Okinawa, during which he saved more than 70 lives. If the military can find a way to accommodate service member religious beliefs during a world war, it can surely do so today.

The dozens of Navy SEALs and Special Warfare members First Liberty represents collectively have more than 350 years of military experience and more than 100 combat deployments. These are exactly the kinds of elite warriors our nation needs. And yet they have each suffered real harm because of their religious beliefs.

Some were ordered to remove their special warfare device SEALs wear the famed the Trident which indicates they are no longer part of the special warfare community. Others were warned that even if their religious accommodation were somehow miraculously approved, they would still be kicked out of the SEALs in disgrace. The Navy also threatened to recoup the expenses invested in them to make them the elite warriors that they are. At the preliminary injunction hearing last month, one of our SEAL clients who sustained a traumatic brain injury while serving our nation took the stand. He testified that the Navy sought to prevent his attendance at a traumatic brain injury clinic because he refused the vaccine. He offered to travel at his own expense, in his own vehicle, to a clinic that was indifferent as to his vaccination status. It defies common decency to deprive a service member of necessary medical treatment for injuries sustained in the line of duty. That is no way to defend a nation or run a military.

Pandemic or no, the government including our military has no license to abrogate the freedoms enshrined in our law and Constitution. The men who wrote the First Amendment were no strangers to plague, famine or war. They understood that the worst tyrannies are those imposed supposedly for the greater good.

Until now, none of the lawsuits challenging the militarys vaccine mandate have been successful. OConnors ruling is a beacon of hope that paves the way for our men and women in uniform to continue serving with their religious liberty intact. For that, every freedom-loving American should be rightly proud. In the meantime, let us hope that the Department of Defense comes to its senses and rights this ship.

Mike Berry is general counsel at First Liberty Institute, and a former active duty U.S. Marine Corps officer. To learn more, please visit http://www.firstliberty.org.

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Vaccine mandates: There is no COVID-19 virus exception to First Amendment Leavenworth Times - Leavenworth Times

From Zhou v. Breed, decided Friday by the Ninth Circuit (Judges John Owens and Michelle Friedland, and visiting Sixth Circuit Judge Danny Boggs):

Appellants allege that both [S.F. Mayor London] Breed and Clear Channel violated their First Amendment right to free speech. To the extent that Appellants argue that Breed, or any public official, violated their First Amendment rights simply by speaking critically of a billboard or calling for its removal, that theory is squarely foreclosed by precedent.

We have previously joined a "host of other circuits" in holding that "public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction." Am. Fam. Ass'n, Inc. v. City & County of San Francisco (9th Cir. 2002); see also id. ("[L]etters which encouraged but did not threaten or intimidate landowner to terminate lease with billboard owner did not violate billboard owner's First Amendment rights." (citing R.C. Maxwell Co. v. Borough of New Hope (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants' billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. , or anyone.

Appellants' argument that their First Amendment rights were violated when Clear Channel, a private company, removed one of their billboards also fails. "A threshold requirement of any constitutional claim is the presence of state action." We "start with the presumption that private conduct does not constitute governmental action." Appellants do not allege any facts or put forward any plausible legal theory that would support treating Clear Channel as a state actor in this case.

The mere fact that Breed or other public officials criticized a billboard or called for its removal, without coercion or threat of government sanction, does not make that billboard's subsequent removal by a private party state action. See also Am. Mfrs. Mut. Ins. Co. v. Sullivan (1999) ("Action taken by private entities with the mere approval or acquiescence of the State is not state action."). Nor does the fact that companies that own billboards might be subject to some government regulations convert Clear Channel's decision to take down the billboard following public officials' criticism into state action. See Manhattan Cmty. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor."); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) ("[T]hat PG & E is a public utility subject to extensive state regulation without more, is insufficient to infuse its conduct with state action."). Because Appellants have failed to allege state action, the district court properly dismissed their First Amendment claim.

{Appellants argue that, even if their allegations could not support a coercion theory of state action or a regulation theory of state action when those theories are analyzed separately, their allegations could support a finding of state action if those theories were analyzed together. That argument also fails.}

The district court correctly struck, pursuant to California's anti-SLAPP statute, Appellants' claims against Breed for inducing breach of contract and intentional interference with a contractual relationship.

Appellants do not have a sufficient legal basis for either of their tort claims asserted against Breed. To succeed on their claim for inducing a breach of contract, Appellants must show that a contract "was in fact breached." Because Appellants cannot show that Clear Channel breached its contract [given that the contract allowed Clear Channel to terminate it], Appellants' claim against Breed for inducing a breach of contract necessarily fails.

To succeed on their claim for intentional interference with a contractual relationship, Appellants must show that Breed knew of Appellants' billboard contracts and that she engaged in "intentional acts designed to induce a breach or disruption of the contractual relationship." Other than threadbare recitals of some of the elements of this cause of action, Appellants do not allege that Breed knew of their contracts with Clear Channel or Outfront, or that any of Breed's actions were intentionally designed to disrupt Appellants' contractual relationships with those companies. Indeed, the only specific action Appellants allege that Breed took was speaking critically about one of the billboards during a television interview. It is not possible to infer from that allegation that Breed's aim was to interfere with any of Appellants' contractual relationships. Consequently, Appellants failed to satisfy their burden of showing a sufficient probability of success on the merits of their tort claims against Breed, and those claims were properly struck.

The state action analysis is indeed consistent with the circuit court precedents (see this post). The interference with contract analysis strikes me as odd: Surely someone criticizing a billboard must be aware that the billboard was up under a contract, and it at least seems plausible that criticizing a billboard is intended to cause a "disruption" of a contractual relationship (even if not a breach), by being intended to urge the billboard company to remove it. Nonetheless, the claim should fail for another reason: Under California law, intentional interference with business relations (short of intentional inducement of an actual breach) is generally actionable only if it's otherwise unlawful (e.g., involves a threat of violence or some other illegal conduct).

Here's the factual backstory about the content of the billboards, from the decision below, though the content isn't legally relevant:

October 2019, plaintiffs Ellen Lee Zhou and the Asian American Freedom Political Action Committee ("AAFPAC") (collectively, "plaintiffs") posted two billboard advertisements in support of Zhou's campaign for mayor of the City and County of San Francisco.

One of AAFPAC's billboards showed Breed driving a red bus with the text "Werewolves of London Tours" near cars with smashed windows. Additional text read, "Vote Nov. 5 for Super Mayor Ellen Lee Zhou!"

Clear Channel and OutFront posted the billboards in October 2019. Soon after, Breed and her allies "began a concerted effort" to pressure Clear Channel and OutFront to remove the billboards by denouncing them as offensive, racist, and divisive. Breed's campaign publicized an October 21, 2019 press conference in front of the OutFront billboard, although Breed did not attend it. Those present, including State Assemblyman David Chiu and members of the Board of Supervisors, denounced the content of the billboard and called for its removal. News outlets reported various individuals describing the contents of the billboard as racist, misogynistic, and sexist, and opining that it had no place in San Francisco. Breed gave a media interview in which she said, "'[The billboard] is hurtful, it's disrespectful and it is no place [sic], I think in San Francisco for that kind of divisiveness.'"

See original here:
No First Amendment Violation in Removal of Billboard After SF Mayor Had Criticized It - Reason

To the editor: This is in reference to Mike Mrowicki's commentary in the Brattleboro Reformer, dated Dec. 24-25, "Rights and responsibilities are inseparable."

Should you meet as a legislator governing body in Montpelier with the COVID in its present conditions, and may get worse in the months ahead? I say yes. You all should meet as if nothing is wrong. Why? First Amendment rights. A small amount of the population (the unvaccinated), wants their right not to have a shot of any kind. That's their right. What about yours? Do you have First Amendments rights, to be safe from danger that might kill you? The answer is yes. To solve this problem, you do not take away their rights to enter the Capitol buildings, you put rules in that must be kept by everyone that enters the buildings, that you have in place, even today, such as (1) you must wear a shirt; (2) you must wear shoes; (3) you do not carry or wear a gun'; (4) you do not disrupt this place of business at any time maybe even more rules that I cannot think of at this time. These rules, are they against your First Amendment rights? You see this in many stores of business, banks, etc., before you enter their business. Do they enter? No.

What about your rules, life and pursuit of happiness and safety? You elected leaders up north should add one more rule that all must live by, which is your First Amendment right: "Every one that enters any Capitol building must be vaccinated, for their protection from us, and us from you." After all, shouldn't you be protected from the "nonbeliever"? Don't worry about votes; 82 percent of the Vermont voters have received their shots. Someone must be right. Why do we all have to bow down to the minority? Stand up, be counted as a believer of the vaccination. Protect us. Get your shot.

Fred Yates

Westminster, Dec. 27

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Letter: Stand up for your First Amendment right as a believer of vaccination - Brattleboro Reformer