Law

Since the recent election of President Obama, and the extraordinarily contentious debate surrounding the reform of health care, political debate has taken on a particularly ferocious edge.  Many American citizens have become increasingly polarized, viewing social reforms such as health care as an inexorable slide toward socialism and communism.  These heated emotions, in turn, have led to public assemblies known as Tea Parties, threats against President Obamas life, and a reinvigoration of Americas latent militia movement. Fearing that these public sentiments might spiral out of control, a number of states have recently passed laws banning assertions that politicians advocating certain social reforms are socialists or communists. New York State passed and implemented such a law in 2008, the Proper Labeling of Political Actors Act, and made it a felony for anyone to assert verbally or in writing that a politician was a socialist or a communist.  Fourteen states have recently followed New Yorks example and politicians have hailed this legislative trend as a step in the right direction toward a more civilized type of political discourse.
    The instant case arises from a series of posters created and posted on the walls of the United Nations building in which Hilary Clinton was adorned with a Fidel Castro beard and portrayed as a communist sympathizer as a result of her support of health care reform.   The posters included such written expressions as Americas Fidel and The Communist Czar.  These posters were created and posted by a group of high school students who call themselves the Youth for the American Way.  All of the students admitted creating the posters, posting them, and they were all arrested and convicted of felonies for violating New Yorks Proper Labeling of Political Actors Act.  The issue presented is whether New Yorks Proper Labeling of Political Actors Act withstands constitutional scrutiny pursuant to the First Amendments guarantee of free speech.  We conclude that the posters are protected speech and reverse the lower courts.
Controlling Law and Legal Standard
    The instant case must be decided with reference to the First Amendment to the United States Constitution and controlling legal precedent.  The Free Speech Clause of the First Amendment creates an individual right to express opinions and ideas that generally cannot be restricted or eliminated by governmental restrictions.  The relevant constitutional text, for purposes of this case, provides that Congress shall make no law  abridging the freedom of speech further, it has long been this Courts position that The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.  The guiding policy has long been that a free society depends on free expression of ideas even if those ides are thought to be offensive to other people.  There certain limited types of speech that can be restricted, such as fighting words, obscenity, and defamation.  This, however, is not one of those limited types of situations.  This case is further complicated by the fact that although First Amendment violations have been found for a government regulation that imposes special prohibitions on those speakers who express views on the disfavored subjects of race, color, creed, religion or gender  this government law addresses political characterizations.  The question is whether this Court should treat these political labeling laws as constitutionally impermissible content-based restrictions 


Analysis and Holding
    We begin our analysis by noting that the members of this Court have too frequently reached consistent Free Speech Clause decisions using different legal theories and rationales.  In R.A.V. v. City of St. Paul, 1992, 505 U.S. 377, for instance, this Court issued a unanimous decision striking down a Minnesota hate crime statute as a violation of the Free Speech Clause.  In that case, a city ordinance made it a hate crime to display a symbol which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.  This unanimous decision however was misleading because the majority opinion was divided by three different legal theories.  The holding was unanimous, but the legal rational was sharply divided.  The majority found that the hate crime law was impermissible because it was content-based whereas the other two factions found it unconstitutional because it was overbroad or because it did not rise to the level of fighting words.  This Court, in order to eliminate future confusion, creates a new standard in which all content-based restrictions of whatever nature will hereafter constitute a violation of the Free Speech Clause of the First Amendment.  Because New Yorks Proper Labeling of Political Actors Act restricted certain types of accusations but not others it constituted an impermissible content-based restriction.   George W. Bush could, for example, be labeled a Fascist without violating the law whereas labeling Hilary Clinton constituted a felony.  Such distinctions in terms of restrictions of speech and expression are violations of the American constitution.  This Court is aware that political extremism is a danger to be guarded against on the other hand, laws that restrict certain types of political expressions while allowing others are an egregious infringement of Free Speech.  For these reasons the lower court decisions are reversed.
Free Exercise of Religion  Julius Caesar Romanesque House of Shared Worship
Background Facts
    The instant case arises from a municipal law passed by the City of San Jose seeking to restrict the religious practices of a local church.  The small church of roughly three hundred members practices an ancient religious tradition known as the Julius Caesar Romanesque House of Shared Worship.  Shared child-rearing and an aversion the formalities of the marital institution are fundamental tenets of the religious faith.  To this end, all of the church members live in a large commune and the children are raised by all of the adults rather than by biological parents as such.  The children, by all accounts, are well-cared for and attend public schools when they reach the appropriate age.  The facts present no reports of abuse or neglect quite the contrary, the children would seem to be thriving both intellectually and emotionally despite the novel child-rearing arrangements. 
    Despite these seemingly ideal circumstances, the City of San Jose received numerous complaints from concerned residents and neighbors.  The main line of criticism was that the child-rearing practices of the Julius Caesar Romanesque House of Shared Worship constituted a threat to the marital institution, community values, and public morals.  As a result of these complaints, the San Jose City Council passed a municipal law stating that all children must be specifically assigned to one or two parents and that shared child-rearing would thereafter constitute a felony case of child abuse.  The adult members of the church were notified of the new law and refused to relinquish their fundamental religious practices.  The San Jose Police soon thereafter carried out a night time raid in which all of the adults were arrested, convicted of felony child abuse, and have brought this appeal on the grounds that the aforementioned municipal law criminalizing their religious practices violates their constitutional right to freely exercise their religion.  We agree and reverse the lower courts.

Controlling Law and Legal Standard
    The Free Exercise Clause, derived from the First Amendment of the United States Constitution, provides that the government may not interfere through laws or restrictions with an individuals practice of a preferred religion and that the government cannot prescribe acceptable and unacceptable religious beliefs in ways that prevent the free exercise of those religious beliefs.  This freedom to exercise ones religious beliefs, however, is not an absolute right indeed, this Court has consistently noted that Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability.  This type of government restriction was recently upheld despite a constitutional challenge when unemployment compensation benefits were denied for Native Americans who were fired from their jobs because they used an illegal substance (peyote) as a part of the exercise of their religious beliefs.  Employment Division, Department of Human Resources of Oregon v. Smith.  The state law banning the use of peyote, deemed an illegal substance pursuant to the states law, applied generally and was of a neutral character so far as religion was concerned.  A government law may be constitutionally permissible pursuant to the Free Exercise Clause, therefore, is the law is generally applied and neutral.  The government law may even withstand constitutional scrutiny when it fails this general applicability and neutrality threshold if the government can establish a compelling interest on behalf of the public good. Because our review of the facts of this case demonstrate that San Joses municipal law satisfies neither of these exceptions to the Free Exercise Clause, we reverse the lower courts.


Analysis and Holding
    There is no dispute regarding the fact that San Joses municipal law criminalizing shared child-rearing, by characterizing this practice as felony child abuse, was directed specifically at the religious practices of the Julius Caesar Romanesque House of Shared Worship.  This negates any argument to the effect that the law was generally applicable or that it was neutral.  Indeed, members of the church have submitted ample evidence of foster home programs funded and administered by the City of San Jose in which as many as eight foster children have been assigned to a single household.  Members of the church have further argued that San Jose city officials involved in this foster home program are technically guilty of the same felonies with which the church members have been charged and convicted.  We agree and find any arguments by the City of San Jose to be disingenuous.  The municipal law at issue is neither applicable to the general population nor is it neutral quite the contrary, it was designed to prohibit a particular religions exercise of a fundamental religious practice.  Second, the San Jose has offered no compelling interest in behalf of the public good the notion that the marital institution and public morals demand such a prohibition is neither supported by the evidence nor by common sense.  For these reasons, the lower courts are reversed.
Medical Record Privacy  Health Insurance Portability and Accountability Act (HIPAA)
Background Facts
Pursuant to Congressional authorization, the Secretary of the United States Department of Health and Human Services is authorized to adopt uniform national standards for the secure electronic exchange of health information.  262, 110 Stat. at 2021-26. This particular authorization, allowing the Secretary to issue rules and regulations regarding the use and disclosure of health information, is part of a larger legislative framework known as the Health Insurance Portability and Accountability Act (HIPAA).  Health insurance participants in Phoenix, Arizona, individually and representing health consumers more generally, allege that this rule violates federal statutory law, American constitutional law, and that in the alternative the Secretary has exceeded the scope of his authority.  They argue, in short, that the use and the disclosure of private health information through an electronic clearinghouse without the consent of patients are illegal on several grounds and that the rule should be declared invalid.  They content that this rule allows for the dissemination of personal health information in violation of a constitutional right to privacy and that it also violates certain federal statutes
Controlling Law and Legal Standard
We begin by noting that this federal legislative framework was designed and subsequently voted into law by Congress in 1996 in an effort to create a balance between two competing objectives of HIPAAimproving the efficiency and effectiveness of the national health care system and preserving individual privacy in personal health information.  How this balance is achieved, between efficiency and privacy, has been a main source of contention and litigation.  This case derives from this type of balancing debate.
In the instant case, the Secretary supported and implemented a rule under the administrative simplification portions of HIPAA.  The relevant portion of this rule, and the subject matter of this legal dispute, provides that
Standard Permitted uses and disclosures. Except with respect to uses or disclosures that require an authorization under  164.508(a)(2) relating to psychotherapy notes and (3) relating to marketing, a covered entity may use or disclose protected health information for treatment, payment, or health care operations . . .provided that such use or disclosure is consistent with other applicable requirements of this subpart.

This rule must therefore be judged against this statutory framework and the constitutional jurisprudence as it relates to privacy.
Analysis and Holding
First, with respect to plaintiffs Fifth Amendment claim, this Court begins its analysis by stating that the government is barred by the principles of substantive due process from depriving an individual of life, liberty, or property without due process however, we also note  that this principle does not impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.  This is the pivotal distinction because the language in the privacy rule is permissive rather than compulsory.  This means, in our view, that the privacy rule cannot be characterized as unconstitutional if it does not create an unconstitutional deprivation or infringement on its own.  The permissive nature of the rule allows for patient consent to be sought and secured any abuse will be the result of actions beyond the scope of the rule itself. 
Additionally, although it is undisputed that a violation of a citizens right to medical privacy rises to the level of a constitutional claim only when that violation can properly be ascribed to the government a violation in the instant case simply cannot be directly linked to the government.  There is no governmental compulsion or command to use or disclose the patient information in ways which violate constitutional guarantees this Court therefore rejects the Fifth Amendment claim.  We find that individual privacy rights cannot me violated absent mere mechanisms rather than affirmative forms of government compulsion.
For these reasons, we find no violation of the medical right to privacy.