First Amendment claim in Vermont

2019Co. v. Superior Court, 478 U.S. 1, 8 (1986)).

2019Co. v. Superior Court, 478 U.S. 1, 8 (1986)).

2003Cf. In re Sealed Documents, 172 Vt. 152, 156 , 772 A.2d 518, 523 (2001) (our tradition of addressing issues of constitutional significance only when they are "squarely and necessarily presented counsels restraint and forbearance" as to broader First Amendment questions); Herald Ass'n, Inc. v. Ellison, 138 Vt. 529, 533 , 419 A.2d 323, 326 (1980) (although First Amendment appears to be implicated, decisions of United States Supreme Court do not clearly determine whether First Amendment violation exists; in face of such uncertainty, "the wisdom of our traditional rule of self-restraint — that we

2003Cf. In re Sealed Documents, 172 Vt. 152, 156 , 772 A.2d 518, 523 (2001) (our tradition of addressing issues of constitutional significance only when they are "squarely and necessarily presented counsels restraint and forbearance" as to broader First Amendment questions); Herald Ass'n, Inc. v. Ellison, 138 Vt. 529, 533 , 419 A.2d 323, 326 (1980) (although First Amendment appears to be implicated, decisions of United States Supreme Court do not clearly determine whether First Amendment violation exists; in face of such uncertainty, "the wisdom of our traditional rule of self-restraint — that we

1995See State v. DeLaBruere, 154 Vt. 237, 249 , 577 A.2d 254, 261 (1990) (noting that one element of a First Amendment violation claim is that exercise of religion is burdened by challenged government action).

1995See State v. DeLaBruere, 154 Vt. 237, 249 , 577 A.2d 254, 261 (1990) (noting that one element of a First Amendment violation claim is that exercise of religion is burdened by challenged government action).

2019We concluded that the trial court’s rejection of appellants’ First Amendment claim was amply supported: “The great weight of authority holds that pre-indictment search warrant materials have not ‘historically been open to the press and general public,’ . . . and therefore access is not compelled under the First Amendment.” Id. at 155 , 772 A.2d at 522 (quoting Press–Enter.

2019We concluded that the trial court’s rejection of appellants’ First Amendment claim was amply supported: “The great weight of authority holds that pre-indictment search warrant materials have not ‘historically been open to the press and general public,’ . . . and therefore access is not compelled under the First Amendment.” Id. at 155 , 772 A.2d at 522 (quoting Press–Enter.

2021See State v. Read, 165 Vt. 141, 153 , 680 A.2d 944, 951 (1996). 3 ¶ 8.

2021See State v. Read, 165 Vt. 141, 153 , 680 A.2d 944, 951 (1996). 3 ¶ 8.

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005We permitted the reporter to assert a privilege, holding that when a newsgatherer, legitimately entitled to First Amendment protection, objects to inquiries put to him in a deposition proceeding conducted in a criminal case, on the grounds of a First Amendment privilege, he is entitled to refuse to answer unless the interrogator can demonstrate to the judicial officer appealed to that there is no other adequately available source for the information and that it is relevant and material on the issue of guilt or innocence. 132 Vt. at 271 , 315 A.2d at 256 (emphasis added).

2005We permitted the reporter to assert a privilege, holding that when a newsgatherer, legitimately entitled to First Amendment protection, objects to inquiries put to him in a deposition proceeding conducted in a criminal case, on the grounds of a First Amendment privilege, he is entitled to refuse to answer unless the interrogator can demonstrate to the judicial officer appealed to that there is no other adequately available source for the information and that it is relevant and material on the issue of guilt or innocence. 132 Vt. at 271 , 315 A.2d at 256 (emphasis added).

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

2003Va. 1994) (DMV policy banning reference to deities violated First Amendment because it regulated speech in nonpublic forum based on viewpoint) with Perry v. McDonald, 280 F.3d 159, 163 (2d Cir. 2001) (applicant does not have First Amendment right to vanity plates bearing letters “SHTHPNS”); Kahn v. Dep’t of Motor Vehicles, 20 Cal. Rptr. 2d 6, 11-13 (Ct. App. 1993) (state has substantial interest in protecting its plates from degradation, and there was ample evidence that request would have been offensive to reasonable person). 6 Notably, the United States Supreme Court has not addressed a Firs

2003Va. 1994) (DMV policy banning reference to deities violated First Amendment because it regulated speech in nonpublic forum based on viewpoint) with Perry v. McDonald, 280 F.3d 159, 163 (2d Cir. 2001) (applicant does not have First Amendment right to vanity plates bearing letters “SHTHPNS”); Kahn v. Dep’t of Motor Vehicles, 20 Cal. Rptr. 2d 6, 11-13 (Ct. App. 1993) (state has substantial interest in protecting its plates from degradation, and there was ample evidence that request would have been offensive to reasonable person). 6 Notably, the United States Supreme Court has not addressed a Firs

2003Similarly, a freedom-of-expressive-association First Amendment claim requires courts to “examine whether or not the application of the state law would impose any ‘serious burden’ on the organization’s rights of expressive association____[T]he associational interest in freedom of expression [is] set on one side of the scale, and the State’s interest on the other.” Boy Scouts of America v. Dale, 530 U.S. 640, 658-59 (2000).

2003Va. 1994) (DMV policy banning reference to deities violated First Amendment because it regulated speech in nonpublic forum based on viewpoint) with Perry v. McDonald, 280 F.3d 159, 163 (2d Cir. 2001) (applicant does not have First Amendment right to vanity plates bearing letters “SHTHPNS”); Kahn v. Dep’t of Motor Vehicles, 20 Cal. Rptr. 2d 6, 11-13 (Ct. App. 1993) (state has substantial interest in protecting its plates from degradation, and there was ample evidence that request would have been offensive to reasonable person). 6 Notably, the United States Supreme Court has not addressed a Firs

2003Va. 1994) (DMV policy banning reference to deities violated First Amendment because it regulated speech in nonpublic forum based on viewpoint) with Perry v. McDonald, 280 F.3d 159, 163 (2d Cir. 2001) (applicant does not have First Amendment right to vanity plates bearing letters “SHTHPNS”); Kahn v. Dep’t of Motor Vehicles, 20 Cal. Rptr. 2d 6, 11-13 (Ct. App. 1993) (state has substantial interest in protecting its plates from degradation, and there was ample evidence that request would have been offensive to reasonable person). 6 Notably, the United States Supreme Court has not addressed a Firs

2003See, e.g., Pruitt, 840 F. Supp. at 417-18 (discussing viewpoint neutral analysis in Lamb’s Chapel v. Ctr.

2003See, e.g., Pruitt, 840 F. Supp. at 417-18 (discussing viewpoint neutral analysis in Lamb’s Chapel v. Ctr.

2002See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999) (dismissal of employee who blew the whistle on superiors is potential First Amendment violation which may be redressed under 42 U.S.C. § 1983 ).

2002See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999) (dismissal of employee who blew the whistle on superiors is potential First Amendment violation which may be redressed under 42 U.S.C. § 1983 ).

2001See State v. Jewett, 146 Vt. 221, 222 , 500 A.2d 233, 234 (1985).

2001See State v. Jewett, 146 Vt. 221, 222 , 500 A.2d 233, 234 (1985).

2001See In re Newsday, Inc., 895 F.2d 74 , 75 (2d Cir. 1990) (declining to address First Amendment claim where qualified access to search warrant materials available under common-law theory); Herald Ass’n v. Ellison, 138 Vt. 529, 533 , 419 A.2d 323, 326 (1980) (noting the “wisdom of our traditional rule of self-restraint — that we do not needlessly decide constitutional issues”).

2001See In re Newsday, Inc., 895 F.2d 74 , 75 (2d Cir.1990) (declining to address First Amendment claim where qualified access to search warrant materials available under common-law theory); Herald Ass'n v. Ellison, 138 Vt. 529, 533 , 419 A.2d 323, 326 (1980) (noting the "wisdom of our traditional rule of self-restraint—that we do not needlessly decide constitutional issues").

2001The standard to be applied to a Rule 12(b)(6) motion is set out in Amiot : to grant the motion, it must appear “ ‘beyond doubt’ that there exist no facts or circumstances that would entitle the plaintiff to relief.” 166 Vt. at 291 , 693 A.2d at 677 (quoting Levinsky v. Diamond, 140 Vt. 595, 600-01 , 442 A.2d 1277, 1280-81 (1982)).

2001The standard to be applied to a Rule 12(b)(6) motion is set out in Amiot : to grant the motion, it must appear “ ‘beyond doubt’ that there exist no facts or circumstances that would entitle the plaintiff to relief.” 166 Vt. at 291 , 693 A.2d at 677 (quoting Levinsky v. Diamond, 140 Vt. 595, 600-01 , 442 A.2d 1277, 1280-81 (1982)).

2001In sum, under Supreme Court case law, generally applicable laws burdening First Amendment interests may or may not be subject to heightened scrutiny, but laws that “single out” those interests “are always subject to at least some degree of heightened First Amendment scrutiny.” Turner, 512 U.S. at 640-41 ; see City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) (“Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional challenges typically does not have the same controlling

2001In sum, under Supreme Court case law, generally applicable laws burdening First Amendment interests may or may not be subject to heightened scrutiny, but laws that "single out" those interests "are always subject to at least some degree of heightened First Amendment scrutiny." Turner, 512 U.S. at 640-41 , 114 S.Ct. 2445 ; see City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 , 106 S.Ct. 2034 , 90 L.Ed.2d 480 (1986) ("Where a law is subjected to a colorable First Amendment challenge, the rule of rationality which will sustain legislation against other constitutional chall