FREEDOM OF SPEECH

The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

Ninth Circuit Upholds Online Vote-Swapping

In Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007), a three-member panel of the U.S. Circuit Court of Appeals for the Ninth Circuit held that vote-swapping Web sites were legal and protected by the First Amendment to the U.S. Constitution. (In March 2008, a petition for rehearing en banc [before the entire court] was denied.) Even so, this was the second time the matter was before the Ninth Circuit. In 2003, it had rendered another similar decision, involving essentially the same parties, but had remanded the case back to federal district court . Porter v. Jones, 319 F.3d 483 (9th Cir. 2003). It was the district court's decision on remand that became the subject matter of the 2007 decision.

The 2000 presidential election was one of the closest in U.S. history. In addition to two neck-in-neck frontrunners (GEORGE W. BUSH and ALGORE) from the two major political parties, there were also third-party candidates on both the left and right ends of the political spectrum who were vying for votes, especially from independents and voters in “swing-states,” or states without a dominant party affiliation associated with their voters. Bush and Gore supporters became worried that in such a tight race, votes for third-party candidates could be significant in “throwing” a swing state. They also became concerned about the quirks of the American electoral system, under which small numbers of third-party votes could become decisive in winner-take-all states (the majority). (Winner-take-all systems allocate all of a state's electoral votes to the candidate who receives the most popular votes in that state, even if that share of votes is less than an actual majority.)

During this highly-charged 2000 presidential pre-election period, San Francisco resident Alan Porter created a Web site, VoteSwap-2000.com, and eventually teamed up with William Cody, owner of VoteExchange2000.com. The undisputed objective of the two Web sites was to provide a forum for voters to trade their votes via e-mail. Essentially, the web sites would facilitate third-party supporters in a swing state (such as Florida or Ohio) to agree to be paired with major-party supporters in states where the major-party's candidate really didn't need the vote because the margin was so favorable, i.e., “safe states.” The swing-state voters would then promise to vote for the major-party candidate and, in exchange, their counterpart “safe-state” voters would promise to vote for the third-party candidate. The point of all this was ostensibly to ensure that major-party candidate Al Gore would improve his odds in swing states, while third-party candidates (such as Ralph Nader) would still garner enough national popular votes to qualify the third-party for federal funding in future elections (five percent minimum).

Four days after the Web sites opened for operation, Porter and Cody were served threatening “cease and desist” letters from then-California Secretary of State, Bill Jones, for alleged violations of various state election and penal code (criminal) provisions, including Code provisions 18521 and 18522 (prohibitions on brokering the exchange of votes). Immediately, the owners shut down/disabled their respective Web sites, fearing prosecution. Ultimately, they ended up filing suit against Jones and the state, alleging that the threatened prosecution violated the First Amendment and the Dormant Commerce Clause , and further, that Jones' actions exceeded the scope of his authority under California's election code. They sought both injunctive and declarative relief.

In the 2003 decision, the district court dismissed Porter's and Cody's claims as moot, but stayed their claims for prospective relief. The Ninth Circuit reversed, finding the case ripe for decision and not moot, and remanded (the 2003 decision).

Notwithstanding that decision, the district court, on remand, granted summary judgment in favor of Jones, again deciding that Porter's/Cody's claims for prospective relief were moot, but for a different reason than previously held: a new letter sent from Jones's successor, Shelley, to then-Speaker of the California Assembly, asking for “legislative clarification” of the provisions cited by his predecessor Jones against the two vote-swapping Web site owners. In the letter, Shelley stated, “Until such legislative clarification is made, I will not seek to prevent the operation of websites such as voteswap2000.com and voteexchange2000.com.” The district court found this new letter to “clearly and unequivocally indicate that the laws will not be enforced in the same manner against future conduct by [Porter, Cody] or others until the legislature provides further clarification.” The district court entered its decision in March 2006.

Again, Porter and Cody appealed, and again, the Ninth Circuit reversed the district court on the matter of mootness. The court held that Shelley's letter did not make it clear that California would not threaten such websites in the future, and therefore, the appeal was not moot.

Moving on to the merits of the case, the Ninth Circuit held that the website's vote-swapping mechanisms were protected activities under the First Amendment. Accordingly,

California needed to meet a high-scrutiny test to overcome the presumption of First Amendment protection. Although California did articulate its valid interests in preventing election fraud and corruption, “and perhaps in avoiding the subversion of the Electoral College,” those interests did not justify the complete disabling of the Web sites or vote-swapping mechanisms. In other words, Jones's actions were not sufficiently narrowly-tailored to advance the State's legitimate interests.

The court also found that Jones was entitled to qualified immunity from damages. This was because the constitutionality of stopping vote-swapping was not clearly established in 2000.

Westboro Baptist Church Held Liable for Protesting Military Funeral

A federal jury in Baltimore in October 2007 ruled that the controversial Westboro Baptist Church of Topeka, Kansas was liable for $10.9 million. The church has become infamous for protesting military funerals under the pretext that the soldiers have died because God is punishing America for supporting homosexuality. A father of one of the deceased soldiers sued the church when church members protested at his son's funeral.

Fred Phelps, formerly an attorney, founded Westboro Baptist Church in 1955. For many years, Phelps represented black clients in civil rights suits. He was disbarred during the early 1990s amid a conflict with state investigator and state judges. He has since focused his efforts on his church. Eleven of Phelps' 13 children are also lawyers. Westboro has about 75 members, most of whom are members of Phelps' family. Four of Fred Phelps' children have rejected his ministry.

The church first gained notoriety in 1998 when members decided to protest the funeral of Matthew Shepard, a gay college student who was beaten to death after being lured from a bar by two men. Church members showed up to display signs that read “God Hates Fags” and shouted that Shepard was in hell for being a homosexual. The group also attempted to post a plaque in Wyoming that suggested Sheppard was in hell.

Since the Shepard incident, Westboro members claimed that God has caused such incidents as the SEPTEMBER 11TH ATTACKS, Hurricane Katrina, and mining deaths in West Virginia in 2005. Church members also threatened to protest at the funeral of actor Heath Ledger , who was straight but played a gay character in the movie “Brokeback Mountain.” The church maintains several websites that spread messages of hatred. According to Phelps, “God promised dire outpourings of very painful wrath, and there's nothing more painful than killing one of your children and that's what's going on in Iraq. That's what we're preaching and the forum of choice to deliver such a message, obviously, is the funeral of the kid that's been blown to smithereens.”

Church members have focused their attention on many funerals of fallen soldiers. The soldiers are not gay nor are they accused of being gay. Instead, the church believes that they died because God is punishing the United States for its tolerance of homosexuality. The members argue that the soldiers have died while earning their paychecks and that they are not true heroes. In addition to the signs focusing on homosexuality, protestors also display signs with such statements as “America is Doomed” and “Don't worship the dead.”

A motorcycle group named Patriot Guard Riders began to attend funerals at the request of families to shield those in attendance at the funerals from the protests. The organization claims that its membership exceeds 100,000, many of whom are veterans. During funerals, members of the Patriot Guard Riders display flags that block families from having to see the Westboro protestors. The bikers also attempt to drown out the protests by singing patriotic songs or revving their motorcycle engines.

The Westboro protests have led several states to enact legislation that would prohibit protestors from picketing within a certain distance (300 to 500 feet) of the funeral. According to the National Conference of State Legislatures, forty states have enacted these types of laws. Westboro members claim that these statutes are unconstitutional. Nevertheless, because of this legislation, the members have moved their efforts to other venues, such as military hospitals.

The family of one fallen soldier fought against the Westboro church by turning to the courts. Marine Lance Cpl. Matthew A. Snyder died on March 6, 2006 in the Al Anbar province in Iraq. His body was returned home for burial two weeks later. Westboro church members showed up to protest, displaying their typical signs and also the signs reading “Semper Fi Fags,” which is especially offensive to Marines. The church also posted an item to its website, indicating that Matthew Synder's father, Albert, had “taught Matthew to defy his Creator, to divorce, and to commit adultery,” as well as “raised him for the devil.”

Albert Snyder filed suit against Westboro in a U.S. district court in Baltimore. He claimed that the protests were emotionally damaging to him, as he was already grieving from his son's death. The suit also alleged that the church violated Synder's privacy, defamed him, and caused intentional infliction of emotional distress. Snyder sought compensatory and punitive damages . According to the suit, punitive damages were appropriate because they would serve as a deterrent against future protests. In addition to the church, other defendants included Fred Phelps and two of his daughters.

On October 31, 2007, the federal jury returned a verdict, awarding Snyder $10.9 million. Of this amount, $2.9 million was for compensatory damages , $6 million in punitive damages for invasion of privacy, and $2 million in punitive damages for emotional distress. Snyder pledged that he would continue to fight the Westboro church's protests. “I hope it's enough to deter them from doing this to other families,” said Snyder. “It was not about the money. It was about getting them to stop.” Despite the ruling, the church said that it would carry on with its protests.

First Amendment experts expressed some concerns with the ruling, noting that judgments such as these could curtail protected speech.