First Amendment

What if a state legislature engages in intentional partisan gerrymandering but it doesn’t work or might not work in the future? Has it violated the First Amendment?

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that Republican Larry Hogan won the Sixth District beating his rival by 14 percent.

California law requires that licensed pregnancy-related clinics disseminate a notice stating that publically-funded family planning services, including contraception and abortion are available. It also requires unlicensed pregnancy-related clinics to disseminate a notice they are unlicensed. The National Institute of Family and Life Advocates (NIFLA) operates 111 pregnancy centers in California. None offer abortions or abortion referrals; only 73 are licensed.

In NIFLA v. Becerra NIFLA claims that both requirements violate the First Amendment Free Speech Clause. The Ninth Circuit disagreed.

In Minnesota Voters Alliance v. Mansky the Supreme Court will decide whether banning political apparel at polling places violates the First Amendment. At least eight states (Delaware, Kansas, Montana, New York, South Carolina, Tennessee, Texas, and Vermont) other than Minnesota have enacted similar bans.

What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.

Fane Lozman lived in a floating house in the Riviera Beach Marina. The City proposed to redevelop the marina using eminent domain and Lozman became “an outspoken critic” regularly criticizing the mayor and city council at council meetings. At a city council meeting Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission the Supreme Court will decide whether Colorado's public accommodations law, which prohibits discrimination on the basis of sexual orientation, violates a cake artist’s First Amendment free speech and free exercise rights. The State and Local Legal Center (SLLC) filed an amicus brief supporting Colorado arguing that the Court should not create an exception to Colorado’s public accommodations law for wedding businesses. 

According to the National Council of State Legislatures, 21 other states have public accommodations laws that prohibit discrimination based on sexual orientation. Numerous local governments have adopted similar ordinances.

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