The United States Supreme Court may hear a case that involves the intersection of the 1st Amendment right to free speech with the right to post on social media.  The case is Hunt v. Board of Regents of the University of New Mexico which may set a legal standard for students’ freedom of speech when they use social media — an issue that has frequently been litigated in recent years with no clear legal standard.  The issue in this case is whether a student’s outrageous and inappropriate Facebook post was a content based restriction on freedom of speech that is prohibited by the First Amendment regardless of how offensive the message.

What did Paul Hunt say on Facebook to incur punishment by the University?  

Paul Hunt was a 24-year-old medical school student at the University of New Mexico School of Medicine in 2012. He stated that Democrats were “[d]isgusting, immoral, and horrific,” and “sick, disgusting people.” He said Democrats were “WORSE than the Germans during WW2,” Hunt posted a comment on his personal Facebook news feed stating Democrats view on abortion were “disgusting, immoral, and horrific.” He said Democrats were “WORSE than the Germans during WW2,” The comment was reported to administrators at the medical college, who told Hunt he was in violation of the schools “Respectful Campus Policy,” which made it a punishable disciplinary offense to engage in “untrue allegations, unduly inflammatory statements or unduly personal attacks.”

 
In a 6-3 opinion written by notoriously conservative Justice Gorsuch, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 covers employment discrimination based on sexual orientation and gender identity in Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). The opinion was released to the public on June 15, 2020.

What is Title VII?

Title VII is a portion of the larger Civil Rights Act of 1964, the first truly significant civil rights law borne out of the landmark Supreme Court decision in Brown v. Board of Education, which legally ended segregation. The famous civil rights events found in our history books – from Rosa Parks sitting in the front of the bus to Martin Luther King, Jr.’s “I Have a Dream” speech – followed Brownand led to the enactment of Title VII. After a dramatic congressional debate, it was signed into law by President Lyndon B. Johnson on July 2, 1964.

The tragic death of George Floyd will hopefully bring reforms that help ease racial tensions and move us toward greater equality in society.  One legal doctrine that allows police officers to avoid liability for acts of brutality and excessive force is the doctrine of qualified immunity that should be revisited in light of recent events.

What is the doctrine of Qualified Immunity?  

Qualified Immunity is a legal doctrine established in 1982 with the Supreme Court case Harlow v. Fitzgerald, 457 U.S. 800 (1982), to balance constitutional rights and reasonable officer actions by allowing officers to rely on the present state of law at the time of their actions.  This means the officer would not be found in violation of someone’s constitutional rights for following a law that was legal at the time and later ruled unconstitutional. Over time, this has developed in a way that protects an officer’s action above others’ constitutional rights so long as the specific type of violation in question is not “clearly established” as unconstitutional.  The Supreme Court has not defined exactly what “clearly established” means, although it has provided some limited guidance that it is more than a generic statement in the Bill of Rights but does not have to be a precedent with the exact same factual situation.

Yesterday, the Supreme Court heard oral arguments in a major abortion case.  This is the first time since Justices Neil Gorsuch and Brett Kavanaugh joined the Bench, creating a strong conservative majority, that abortion will be addressed by the Court.  That case, June Medical Services v. Russo addresses whether the Louisiana law requiring abortion providers to have privileges in a hospital within 30 miles of their clinic is constitutional. The Louisiana law at issue in this case is virtually identical to the Texas law that was struck down by the Court in Whole Women’s Health v. Hellerstedt in 2016.

What could happen is anyone’s guess.  The Court could

• follow the June Medical Services argument to follow stare decisisand rule, as it did with Whole Women’s Health, the law unconstitutional. Or, it could

On November 14, 2019, Thomas Bell, a motorist convicted of DUI, filed a Petition for a Writ of Certiorari with the Supreme Court seeking review of the Pennsylvania Supreme Court’s decision that warrantless blood test refusals may be used as evidence of guilt in DUI cases under the State’s implied consent law.  The case being reviewed by the United States Supreme Court is Bell v. Commonwealth of Pennsylvania.  In Massachusetts, the SJC has ruled that refusal evidence violates a defendant’s privilege against self incrimination under Article 12 of the Massachusetts State Constitutional.

Bell’s Petition  asks the Supreme Court to address the following question:

Whether a motorist’s assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence?