Professional Speech and the First Amendment

In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.

Hines v. Alldredge

In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.

The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.

Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?

The Split

Speech or Conduct?

The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.

The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.

The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.

What Standard?

The next step is to determine the appropriate standard of review. Courts again disagree on the standard.

In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.

On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.

In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.

The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:

At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.

The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.

Looking Forward

Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.

Watching Big Brother on your Phone Means Big Brother’s Watching You: Limits on Consumer Privacy

The Battle for Privacy

If you have a smartphone, you probably have downloaded an application, such as a game or a social or news platform. When you open the app for the first time, sometimes it will prompt you to register or give permission to the developer to track your activity and send this data back to the developer or third parties. However, most of the time the app will not do this, because usage as written in the terms and conditions of the app provides implied consent, so that every time you access and use the app, you give silent permission for the app to track your usage.

So what may a consumer rely upon for protection of her privacy? The Video Privacy Protection Act of 1988 (“VPPA”) (codified at 18 U.S.C. 2710).

VPA

The VPPA was enacted in response to a newspaper’s published report of Supreme Court nominee Judge Robert H. Bork.

The report contained Judge Bork and his family’s video rental records. The VPPA was passed to “preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials.” See Senate Report. In effect, a few important provisions include:

  • A general ban on the disclosure of personally identifiable rental information unless the consumer consents specifically and in writing.
  • Disclosure of “genre preferences” along with names and addresses for marketing, but allowing customers to opt out.
  • The VPPA does not preempt state law. That is, states are free to enact broader protections for individuals’ records.

See Electronic Privacy Information Center.

Privacy Protection Exists for the Consumer-Subscriber

Our interactions with applications today are far more developed than they were back in 2002 when the VPPA was first enacted. Today, video rental records containing someone’s name and what movies she has seen are not the main sources of identifying a person. Apps often pull information such as our GPS coordinates of where we open and use them as well as information of what kind of phone is accessing the app’s server. As a result, many different types of information in addition to the user’s name can easily identify a person.

Does downloading and using a free app make the user a subscriber under the Video Privacy Protection Act?

In Yershov v. Gannett Satellite Info. Network, Inc., (Apr. 29, 2016), the First Circuit found that it does, splitting with the Eleventh Circuit in Ellis v. Cartoon Network, Inc., (Oct. 9, 2015) that found that it does not.

The Split

Textually, the meaning of subscriber is limited to the definition of consumer in the VPPA. However, the Eleventh Circuit found that the definition of “subscriber” includes “some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” See Ellis at 11. Other aspects to subscribing include actual “payment, registration, commitment, delivery [expressed association,] and/or access to restricted content.” Id.

Additionally, the absence of the above factors including not signing up or establishing an account, making any payments, becoming a registered user, signing up for any periodic services or transmissions, or making any commitment or establishing any relationship that would allow [the user] to have access to exclusive or restricted content thus did not make someone a subscriber. See Ellis at 13-14. In effect, the Eleventh Circuit created a presumption that an application download “is the equivalent of adding a particular web site to one’s Internet browser as a favorite.” Id.

In Yershov v. Gannett Satellite Info. Network, Inc., No. 15-1719 (1st Cir., Apr. 29, 2016), Yershov downloaded and accessed the USA Today app on his smartphone. In his complaint, Yershov claimed that each time he used the app, Gannett, d/b/a USA Today, would send information such as the title of the video watched, an Android unique identifier number, and GPS coordinates to a third party.

In dismissing the complaint and reversing the district court’s ruling, the court broadened the definitions of PII and consumer, finding that (1) GPS coordinates and the unique identifier number of a device fall under the PII umbrella and (2) an app user qualifies as a consumer.

The First Circuit disagreed with the Eleventh Circuit’s ruling in Cartoon Network on the issue of a “subscriber” and its analogy of downloading an app to bookmarking/adding a website to a favorites folder.

In the First Circuit’s view, an app developer would not bother creating an app if bookmarking a website would create the same result. Instead, the court found that an app is a more cost effective version of a “hotline” that a subscriber could call to continuously order videos. The First Circuit found Yershov to be a subscriber because

[t]o use the App, Yershov did indeed have to provide Gannett with personal information, such as his Android ID and his mobile device’s GPS location at the time he viewed a video, each linked to his viewing selections.  While he paid no money, access was not free of a commitment to provide consideration in the form of that information, which was of value to Gannett…[Furthermore, downloading an app is] materially different from what would have been the case had USA Today simply remained one of the millions of sites on the web that Yershov might have accessed through a web browser.

Looking Forward

The First Circuit’s broad view may create issues for developers whose main source of app content includes video streaming, as “its ruling may expand the scope of PII to include situations where device IDs and GPS codes may be used to reverse engineer an individual’s identity using information collected from other sources”[1].

Additionally, since GPS coordinates are analogous to an individual’s street address, whether that is a broad view can be argued further if one compares online streaming and GPS coordinates to addresses pulled from the rental of video tapes and other audio visual materials.

App developers may soon face additional data collection and disclosure issues, and whether the appropriate level of consent is obtained when collecting and sharing precise data location information with third parties. A prima facie VPPA claim could be attached where apps share consumer data with third parties without expressed consent.

For further reading, see the blog posts of firms DWT: (1) and (2) and DLA Piper and the Technology and Marketing Law Blog.

[1] See Christin McMeley and John D. Seiver, 1st Circuit and FTC Address Definitions of “PII,” While Michigan Amends Privacy Law to Remove Statutory Damages, available at http://www.dwt.com/First-Circuit-and-FTC-Address-Definitions-of-PII-While-Michigan-Amends-Privacy-Law-to-Remove-Statutory-Damages-05-11-2016/

The Presumption Against Extraterritoriality and the Alien Tort Statute

The Alien Tort Statute

The Alien Tort Statute (“ATS”) was enacted as part of the Judiciary Act of 1789.  It provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (28 U.S.C. § 1350).

From 1789 until 1960, cases were brought under the ATS only three times, but beginning in 1960, the statute began to be used much more frequently to hold individuals, corporations, and governments accountable for alleged human rights abuses.  This usage continued until 2013 when the Supreme Court greatly limited the statute’s reach in the landmark case Kiobel vs. Royal Dutch Petroleum Co.

Kiobel

In Kiobel, Several Nigerian nationals alleged that three corporations (from the Netherlands, the United Kingdom, and Nigeria) aided and abetted a Nigerian military campaign to suppress opposition to those corporations’ activities.  The crimes alleged included detention, torture, and extrajudicial killings, all of which violate the law of nations.

The Second Circuit dismissed the complaint because it did not believe that the law of nations recognizes corporate liability so cases could not be brought against corporations under the ATS.  The Supreme Court then granted certiorari and affirmed the lower court’s opinion.

The Supreme Court claimed to have granted certiorari to answer the question of whether corporations could be held liable under the ATS; however, the court instead reached out (no pun intended) to hold that a canon of statutory interpretation, the presumption against the extraterritoriality, applied to the ATS and therefore the statute could not be applied outside of the US.

The court said that the presumption could not be overcome since, “all of the relevant conduct took place outside of the United States.”  The court further noted that, “even where the claims touch and concern the territory of the United States,” it must be with “sufficient force” to overcome the presumption against extraterritoriality, and that “mere corporate presence” alone would not be sufficient.

This reasoning in the negative implied that the presumption could be overcome, however, which has left room for discrepancies among the lower courts.  The differences mainly center on how to analyze the phrase “touch and concern” and what is sufficient to overcome the presumption.

The Split

The Second Circuit

The split among the circuit courts is basically the Second versus the rest.  The Second Circuit is the most restrictive when applying the ATS and therefore has the highest bar of sufficiency to overcome the presumption.  In Mastafa v. Chevron Corp (2d Cir. 2014), the court said that the conduct which violates the law of nations must occur within the United States, and that U.S. citizenship of the defendant is not relevant.

The core purpose of the presumption of extraterritoriality is more pronounced in Mastafa than in Kiobel:

“[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.” [Describing the dangers inherent when courts impinge on the role of the executive and legislative branches in managing foreign policy, the Court explained,] “[t]hese concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.”

In addition to the foreign policy argument, the court noted that a defendant’s citizenship is irrelevant because of Supreme Court language asserting that a “mere corporate presence” is not enough.

The Rest

Other courts have determined that a defendant’s citizenship can be relevant, though not sufficient alone.  In Doe v. Drummond Co., Inc., (2015) the Eleventh Circuit stated:

in determining whether a claim sufficiently touches and concerns the territory of the United States to confer jurisdiction to U.S. courts, the citizenship or corporate status of the defendant is relevant. If the defendants are U.S. citizens, some of the foreign policy concerns that the presumption against extraterritorial application is intended to reduce may be assuaged or inapplicable, since we would not be haling foreign nationals into U.S. courts to defend themselves.  Additionally, the acts of U.S. citizens may impact the United States, whether their actions occur extraterritorially or within the United States, particularly if those actions include international law violations.

The Eleventh Circuit believes that a less strict reading, which allows for the consideration of the citizenship of a defendant and conduct occurring outside the U.S., may not be significant foreign policy concern, and instead may be important to the U.S.

Similarly, the Fourth Circuit held in Al Shimari v. CACI Premier Technology, Inc. (2014) that the citizenship of a defendant is relevant, and that claims against acts committed outside the U.S. could be brought under the ATS because it was an important U.S. interest to allow aliens the right to hold U.S. citizens liable for torture committed abroad.

Looking Forward

The Kiobel decision has led to a sharp decrease in cases which can be brought under the ATS.  A strict interpretation will eliminate most cases which would have been eligible pre-Kiobel.  This is a concerning result considering our globalized world.  Increasingly, U.S. corporations are operating in foreign countries and an interpretation like the Second Circuit’s view in Kiobel will make it almost impossible for aliens to hold these corporations liable for torts committed abroad.  The other circuits have struck a balance between applying U.S. laws in other sovereign nations and still allowing foreigners the ability to hold companies and other individuals liable for human rights abuses that are of sufficient interest to the U.S.

Additional Reading

See: “Kiobel case: US Supreme Court Review of Alien Tort Claims Act” and “Is the Alien Tort Statute Headed Back to the Supreme Court?”