Two ‘Free Speech’ Cases Before SCOTUS Are Actually About Protecting All Constitutional Rights
Joseph Clement
In both of these disputes, the justices of the U.S. Supreme Court can uphold a key vehicle for every citizen to protect his freedom.
Federal law guarantees that if your rights are violated by an agent of the government, you have the chance to protect your freedom in court. That assurance will be either affirmed or greatly cut back in a pair of cases that the Supreme Court heard last week involving a Christian street preacher and a pro-life pregnancy resource center. While the facts of both disputes are drawing much well-deserved attention, the complex legal questions before the court will have an effect far beyond the particular parties involved.
Under Section 1983 of the U.S. Code, anyone can sue another party that, while acting under the color of state or federal law, deprives him of his rights. For example, a nurse who was fired from a Michigan-funded hospital for refusing to follow the state’s LGBT ideology could sue for violations of her First Amendment protections. Oftentimes these Section 1983 cases are designed to prevent future illegal activity by the government. Plaintiffs often seek injunctive or declaratory relief barring a state official from restricting their freedom again. This capability, which was originally enacted in the Reconstruction era to protect newly freed former slaves, is one of the most commonly used methods to ensure that individual liberties are respected.
In a case argued before the U.S. Supreme Court last week, First Choice, a pregnancy resource center filed a Section 1983 claim against New Jersey Attorney General Matthew Platkin. Platkin issued a subpoena (which threatened serious penalties for noncompliance) to the nonprofit demanding that it release identifying personal information, such as the names, phone numbers, and home addresses of its donors. First Choice argued that the subpoena itself, even without a state court order demanding compliance, chilled its donors’ free speech and association rights — a typical donor will be less likely to give to First Choice if they believe they will be doxed for doing so. After First Choice filed its claim in a federal court, Platkin sued the center in New Jersey courts to obtain an order forcing it to comply with his subpoena.
First Choice’s suit was dismissed in federal court twice before reaching SCOTUS. The courts held that, since the subpoena technically does not itself carry the force of law, First Choice must first lose its case to Platkin in state court before actually suffering the type of injury that Section 1983 demands. However, due to several legal principles, if First Choice goes through the process in state court, it likely will never be able to argue in federal court if it loses the fight in state court. In effect, it has been prevented entirely from any opportunity to protect its rights.
In another case argued last week at the Supreme Court, an evangelical Christian named Gabriel Olivier is also seeking to secure his rights to bring a Section 1983 claim in federal court. He was convicted and fined for breaking a city ordinance in Mississippi that banned him from preaching in public unless he remained in a free speech bubble far from anyone who could hear him. In his initial criminal proceedings, Olivier pled no contest and simply accepted the fine and probation.