Posted by: Patrick Allen Foster | December 19, 2013

Tennessee Attorney General Reminds the Legislature that the First Amendment is a Thing

Eugene Volokh points us to a bill currently pending in the Tennessee General Assembly, HB 540 / SB 965, the “Local Government Interference Protection Act.” Basically, some legislators in the General Assembly don’t like it that vocal taxpayers can sue (and threaten to sue) local governments to remove Nativity scenes set up in front of town hall and Ten Commandments monuments in the lobby of the county courthouse. So, State Rep. Jimmy Matlock of Lenoir City and State Senator Randy McNally of Oak Ridge propose a law that would do two things, basically (see the Bill Summary here).

First, the proposed Act would require a “claimant” (i.e., a potential Establishment Clause plaintiff) to give notice to the local government two months before suit: “at least 60 days prior to any claimant filing an establishment clause claim against a local government unit or local government servant, the claimant or the claimant’s attorney must provide written notice of the potential claim to the local government unit or local public servant whom the claimant intends to name as a defendant. No such action may be commenced until such notice has been provided.” Among other things, the written notice must identify the “state constitutional provision of which the local government unit or local public servant’s policy, practice, action or custom is alleged to be in violation.” (emphasis added) The government has 60 days to respond, and if the local government agrees that something should be changed, the government has a further 120 days to take action. The claimant is discouraged from bringing suit during this time: “If a claimant files an establishment clause claim prior to the expiration of the 120-day period, or otherwise fails to comply with the requirements of this bill, the claimant will not be entitled to receive, and the court will order the claimant to pay, any litigation expenses, including attorney’s fees, discretionary costs, and other costs.”

(As explained below, the Tennessee Constitution does include its own counterpart to the federal Constitution’s First Amendment Establishment Clause — Article I, Section 3 of the Tennessee Constitution. However, a claimant could with equal justification rely upon the Establishment Clause of the First Amendment to the US Constitution, as interpreted by some four decades of US Supreme Court decisions. The bill’s pointed requirement that the claimant state a ground under a state constitutional provision seems suspicious in this context. Perhaps Sen. McNally and Rep. Matlock believe that the Fourteenth Amendment did not incorporate the Bill of Rights against the states — a position that some Republicans in other states have put forward of late. The nonincorporation argument flies in the face of 90 years of precedent — even Scalia accepts the incorporation doctrine as a done deal and binding precedent — but such is the GOP today.)

Second, apart from the written notice 60 days before suit, the bill seeks to criminalize all other petitions or unsolicited communications to the local government. This part of the proposed law is very broad indeed:

A person commits an offense who intentionally, without or prior to the filing of a complaint, lawsuit, or other legal action in any [federal or] state court of this state communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:

(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or

(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and

(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.

(An amendment in the House would remove the word “federal” from the first part of this section; the Senate version of the bill has not yet been amended.)

As Prof. Volokh notes, although clearly intended to restrict Establishment Clause challenges, “this section would cover all threats of litigation” — regardless of the subject matter of the dispute.

Volokh observes:

The proposal is clearly an unconstitutional content-based restriction on freedom of speech to government officials, and on the right to petition the government for redress of grievances. Petitions need not be just “please be so kind as,” but may also include “or else we’ll petition another branch of government — the courts — to vindicate our rights.” And neither the Free Speech Clause or Petition Clause excludes speech that’s annoying or said “in an offensively repetitious manner.” Narrowly crafted restrictions on certain manners of communications, such as calls to people’s homes after the person has said “stop calling,” or calls that are so frequent that they tie up phone lines, may be constitutional, but the bill is not at all limited to that; it would potentially include, for instance, several e-mails sent over the span of weeks, if they “annoy” or are seen as being “offensively repetitious.”

Indeed so.

McNally and Matlock introduced this legislation back in January; the Senate Bill hasn’t moved much, but back in April the House Bill passed through the Local Government Committee on a voice vote (with the amendment noted above).

Fortunately, the Tennessee Attorney General’s Office has provided a fairly emphatic opinion on the constitutionality of the proposed law. (The opinion just came out December 6, so that’s why we’re talking about it now — that and the season!)

The opinion (pdf, 11 pages) is well worth reading. Here’s how it begins:

QUESTION

Do the provisions of Senate Bill 965/House Bill 540 of the 108th Tennessee General Assembly, 1st Sess. 2013), as amended in the Tennessee House of Representatives (hereinafter “SB 965”) violate the United States or Tennessee Constitutions?

OPINION

Yes. The provisions of SB965 imposing pre-litigation requirements for claims alleging “establishment clause” violations under the Tennessee Constitution would violate the right of freedom of worship provision of Article I, Section 3 of the Tennessee Constitution and the open access to courts provision of Article I, Section 17 of the Tennessee Constitution. The provisions creating a criminal offense prohibiting certain communications would violate the First Amendment to the United States Constitution and Article I, Section 19, of the Tennessee Constitution and would be void for vagueness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Here’s a key passage (pp. 9-10) discussing the proposed criminal ban on, essentially, petitioning the local government:

This criminal offense is facially unconstitutional as violative of the First Amendment of the United States Constitution and the right to freedom of speech under Article I, Section 19, of the Tennessee Constitution. In contrast to the prohibitions upheld in the general criminal harassment statute, see Tenn. Code Ann. § 39-17-308, the offense created by Section 7 is a content-based restriction on speech involving matters of public concern, namely a person advising a local government official that he or she will consider initiating legal action to halt or cease a particular local government policy or action. Regulations based upon the content of speech are presumptively invalid. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1982). Content-based restrictions on speech are subject to analysis under the strict-scrutiny test, which requires that a law advances a compelling state interest and is narrowly tailored to achieve that interest. See, e.g., id.; State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 911 (Tenn. 1996); Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn. 1987). There is no compelling state interest in a local governmental entity or local public servant being free from receiving written or electronic communications regarding a matter of public interest that includes a threat of initiating legal action and that may “alarm or annoy the local government unit or local public servant” as provided in Section 7 of SB965. See Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971) (holding unconstitutional Cincinnati ordinance that made it unlawful for three or more persons to assemble on any public sidewalk and conduct themselves in a manner “annoying” to persons passing by, with the United States Supreme Court explaining in part that the “First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly because its exercise may be ‘annoying’ to some people”).

Section 7, as amended, is also constitutionally invalid under federal due process standards as being “void for vagueness” because this provision fails to adequately define its prohibitions (such as what comprises “an offensively repetitious manner” and when the person should know “that it will alarm or annoy the local government unit or local public servant” in the context of “threatening” litigation) and what communication constitutes a violation. …

Here’s a passage discussing the notice requirement (pp. 6-7, footnotes omitted):

SB965 would not be sustained under a strict scrutiny review. SB965 sets forth the rationale supporting its enactment, stating that “the increase in law suits challenging prayer and invocations in public meetings and the display of historical documents has resulted in rising legal costs, including substantial attorney fee awards to plaintiffs, incurred by local governments to defend against such claims.” SB965 § 3(7). The purpose of SB975 is “to create a safe harbor for local governments desiring to avoid needless litigation and to encourage them to adopt a resolution, a written policy governing invocation practices to the extent permissible under the Establishment Clause.” Id. § 3(9). The goal of SB965 is to reduce “the threat of costly litigation expenses, and the potential loss of tax payer money, resulting from [‘establishment clause’] claims [that] seriously interferes with the efficient and economical operation of local governments.” Id. § 3(8).

Reducing local government litigation expenses is unlikely to constitute a compelling state interest. Cf. Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (stating that the “saving of welfare costs cannot justify an otherwise invidious classification”). Even assuming that reducing local government litigation costs may be found to constitute a compelling state interest, the provisions of SB965 are not narrowly tailored to accomplish that goal without interfering with a person’s constitutional right to access to the courts to challenge an alleged violation of his or her free exercise of religion.

While SB965, Section 3, refers to concerns regarding law suits challenging prayer and invocations in public meetings and the display of historical documents, SB 965 is not limited only to those specific challenges, but encompasses any judicial claim involving alleged violations by a local government of Article I, Section 3 of the Tennessee Constitution. Moreover, a substantial number of claimants asserting violations of Tennessee’s “establishment clause” would likely assert immediate and irrevocable harm from the alleged violation.

Litigants asserting other types of legal claims who allege immediate and irrevocable harm may seek a temporary restraining order or temporary injunction from an appropriate court. Tenn. R. Civ. P. 65. Courts have found that a demonstration of a likelihood of success on an alleged violation of a fundamental constitutional right, with a chilling effect on protected activity, may be sufficient to demonstrate immediate and irrevocable harm for purposes of granting preliminary injunctive relief. …

Furthermore, denying only claimants asserting “establishment clause” violations the ability to seek immediate judicial relief may result in those claimants being denied any effective relief as the alleged violations may have been completed during the pre-litigation notice and governmental response time. For example a particular objectionable prayer practice may have been scheduled for a graduation ceremony, sporting event, or other local governmental event that occurs during the notice and governmental response time. …

Here’s a question: suppose the Tennessee legislators don’t “get the message” (Prof. Volokh’s phrase), and they pass this bill anyways. When the law is inevitably challenged in court, ordinarily it would fall to the Attorney General to defend the constitutionality of the law. But here the AG has given an opinion that the law is unconstitutional — pretty clearly unconstitutional, in fact. (Heck, a plaintiff could practically build a brief from the AG opinion.) Does the fact that the AG gave an opinion of unconstitutionality mean that someone else would be tasked with defending the law? Does the AG’s opinion have any weight with the courts, such that a court of appeals could cite to the AG opinion for support? I don’t know the answer to these questions.

One might hope that, armed with the AG’s opinion, the sponsors of this legislation will withdraw the bill or else allow it to peacefully fade away without further action. But I won’t hold my breath.

Image Credit: Christmas Nativity scene next to the Franklin County Courthouse, Brookville, Indiana. Photo by OZinOH, November 2009. Used under a CC BY-NC 2.0 license. Source: Flickr.

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