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Kelvin Cochran dedicated more than 30 years of his life to fighting fires and protecting the communities in which he’s lived and worked. In 2015, Chief Cochran was fired from his post as Atlanta fire chief after he wrote a men’s devotional in his spare time that briefly mentions his belief in the biblical understanding of marriage and sexuality. In October 2018, the city of Atlanta agreed to pay Cochran $1.2 million in the wake of a federal court ruling that the city had violated his constitutional rights of free speech and freedom of religion.

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Cochran v. City of Atlanta

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Saturday, October 27, 2018

Description: The city and mayor of Atlanta terminated the employment of Fire Chief Kelvin Cochran because of his Christian faith and beliefs. Mayor Kasim Reed first suspended Cochran for 30 days and announced that he would have to complete "sensitivity training" after activists who don't agree with the fire chief's Christian views on sex complained about a men's devotional book Cochran had written on his personal time. Biblical sexual morality is mentioned only briefly in the 162-page book. After an investigation that included interviews with employees found Cochran did not discriminate against anyone, the mayor fired him anyway-citing as his basis, ironically, the need to tolerate diverse views.

Atlanta to pay $1.2 million to former fire chief after firing him, violating his First Amendment freedoms

City council votes on payout after 2017 court ruling found rules requiring employees to obtain permission before writing a book are unconstitutional
Monday, October 15, 2018

Client sound bites: Kelvin Cochran #1 | Kelvin Cochran #2 | Kelvin Cochran #3

ATLANTA - The city of Atlanta has agreed to pay its former fire chief, Kelvin Cochran, $1.2 million in the wake of a December 2017 court ruling that found some of the city's policies that led to his termination are unconstitutional. The court determined that Atlanta's rules restricting non-work speech, like the book for Christian men that Cochran wrote, were too broad and allowed city officials to unconstitutionally discriminate against views with which they disagree.

On Monday, the city council voted on the specific amount of damages and attorneys' fees that it owes to the highly decorated former fire chief after negotiating with his Alliance Defending Freedom attorneys.

"The government can't force its employees to get its permission before they engage in free speech. It also can't fire them for exercising that First Amendment freedom, causing them to lose both their freedom and their livelihoods," said ADF Senior Counsel Kevin Theriot, who argued before the court on behalf of Cochran last year. "We are very pleased that the city is compensating Chief Cochran as it should, and we hope this will serve as a deterrent to any government that would trample upon the constitutionally protected freedoms of its public servants."

With regard to the city's "pre-clearance" rules, the U.S. District Court for the Northern District of Georgia wrote in its December 2017 decision in Cochran v. City of Atlanta, "This policy would prevent an employee from writing and selling a book on golf or badminton on his own time and, without prior approval, would subject him to firing. It is unclear to the Court how such an outside employment would ever affect the City's ability to function, and the City provides no evidence to justify it.... The potential for stifled speech far outweighs any unsupported assertion of harm."

The court added that provisions within the rules "do not set out objective standards for the supervisor to employ." "This does not pass constitutional muster," the court concluded.

Cochran wrote a 162-page devotional book on his personal time that briefly mentions his Christian views on sex and marriage. Atlanta Mayor Kasim Reed suspended Cochran for 30 days without pay and announced that he would have to complete "sensitivity training." Reed then fired him, even though a city investigation concluded that he did not discriminate against anyone.

Reed recounted in his 2014 State of the City Address that he "begged" Cochran to return to Atlanta in 2010 from his job as U.S. fire administrator in the Obama administration. Cochran agreed, and the city council confirmed him to serve a second time as the city's fire chief, a job Cochran originally held from 2008 to 2009.

In 2012, Fire Chief Magazine named Cochran "Fire Chief of the Year." In a city news release issued about the award, Reed thanked Cochran for his "pioneering efforts to improve performance and service within the Atlanta Fire Rescue Department," applauded "Chief Cochran and all of Atlanta's brave firefighters for the commitment to excellence shown throughout the department," and recognized that Cochran's "national recognition" as Fire Chief of the Year was "much-deserved."

Pronunciation guide: Theriot (TAIR'-ee-oh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
Additional resources: Cochran v. City of Atlanta

Scroll down to view additional resources pertaining to this case and its surrounding issue.
Saturday, October 27, 2018
Previous news releases:

2017-12-20: Court says Atlanta policies violate First Amendment freedoms of former fire chief, others

2017-11-16: Former Atlanta fire chief to court: 'I was unjustly fired for my beliefs'

2015-12-16: Court allows lawsuit of unjustly fired fire chief to go forward against city of Atlanta

2015-10-13: ADF to court: Atlanta must be held accountable for unjustly firing fire chief

2015-04-09: ADF extinguishes Atlanta's arguments in defense of discrimination against fire chief

2015-03-26: Atlanta's desperate defense of discrimination still deficient

2015-02-18: Fire chief sues city of Atlanta over unjust termination

2015-02-17: New developments concerning fired Atlanta fire chief

2015-01-14: City, mayor of Atlanta playing with constitutional fire

Kelvin Cochran: The first responder and the First Amendment (National Review, 2018-10-27)

Kevin Theriot: Reinstate Atlanta Fire Chief Kelvin Cochran (Fox News, 2015-02-25)

Legal documents, related news, and other related resources available in the right panel when this page is viewed at ADFmedia.org.

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Description: The city and mayor of Atlanta terminated the employment of Fire Chief Kelvin Cochran because of his Christian faith and beliefs. Mayor Kasim Reed first suspended Cochran for 30 days and announced that he would have to complete "sensitivity training" after activists who don't agree with the fire chief's Christian views on sex complained about a men's devotional book Cochran had written on his personal time.

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Free assembly

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Free practice of religion - Sherbert v. Verner

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Free practice of religion - Sherbert v. Verner

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In 1963, the Supreme Court judged wether South Carolina violated the Free Exercise Clause of the First Amendment in refusing unemployment benefits to a person for turning down a job, because it required him or her to work on the Sabbath, which is the person’s religion holiday. The Court ruled 7-2 that the South Carolina statute did violated a person’s right to freely exercise religion.

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Sherbert v. Verner, 374 U.S. 398 (1963), was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in question was narrowly tailored before it denied unemployment compensation to someone who was fired because her job requirements substantially conflicted with her religion.[1]

Sherbert v. Verner

Argued April 24, 1963
Decided June 17, 1963

Full case name
Sherbert v. Verner et al., Members of South Carolina Employment Security Commission, et al.

Citations

374 U.S. 398 (more)

Case history

Prior

Employment Security Commission denied claim; affirmed by Court of Common Pleas for Spartanburg County; affirmed by South Carolina Supreme Court, 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746; probably jurisdiction noted, 371 U.S. 938

Holding

The Free Exercise Clause mandates strict scrutiny for unemployment compensation claims.

Court membership

Chief Justice

Earl Warren

Associate Justices

Hugo Black · William O. Douglas
Tom C. Clark · John M. Harlan II
William J. Brennan Jr. · Potter Stewart
Byron White · Arthur Goldberg

Case opinions

Majority

Brennan

Concurrence

Douglas

Concurrence

Stewart

Dissent

Harlan, joined by White

Laws applied

U.S. Const. amends. I, XIV

The case established the Sherbert Test, requiring demonstration of such a compelling interest and narrow tailoring in all Free Exercise cases in which a religious person was substantially burdened by a law. The conditions are the key components of what is usually called strict scrutiny.

In 1990, the Supreme Court decided that the Sherbert Test, as a judicial constitutional analysis tool, was too broad when applied to all laws. With respect to religiously-neutral, generally-applicable laws that incidentally burden religious exercise, the Sherbert Test was eliminated in Employment Division v. Smith.[2] For laws that discriminate along religious/secular lines or neutral laws that are enforced in a discriminatory way, the components of the Sherbert Test are still appropriate constitutional tools for courts to use.

In response to the 1990 Smith decision, Congress created an enhanced version of the Sherbert Test as a statutory, rather than constitutional, right in the federal Religious Freedom Restoration Act (RFRA) of 1993. Its provisions were designed to apply broadly to all laws and regulations, both federal and state. Although Congress replaced the "narrowly tailored" constitutional requirement with a "least restrictive means" statutory requirement, the enhanced test is still referred to as the Sherbert Test.

However, the Supreme Court held in City of Boerne v. Flores that the law was unconstitutional because its enhanced Sherbert Test, as a purported change in constitutional rights, could not be enforced against the states.[3] It impermissibly interfered with the judiciary's sole power to interpret the Constitution. However, the ruling did not necessarily limit its effect on interpretation of federal statutes.

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) that applied only to federal laws. Both laws contain the same language for an even further enhanced Sherbert Test, one that broadens the definition of substantial religious burden.

The Supreme Court has since relied on the statutory Sherbert Test to decide several prominent cases, including Burwell v. Hobby Lobby, 573 U.S. ___ (2014), and Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).

Background of the case Edit

Adell Sherbert, a member of the Seventh-day Adventist Church, worked as a textile-mill operator. Two years after her conversion to that faith, her employer switched from a five-day to a six-day workweek, including Saturdays. Since according to her belief, God in Exodus 20:8-11 forbade working on Saturdays (seventh day is the Sabbath), she refused to work that day and was fired. Sherbert could not find any other work and applied for unemployment compensation. Her claim was denied, even though the state's ineligibility provisions exempted anyone, whether religious or not, "for good cause." The Employment Security Commission's decision was affirmed by a state trial court and the South Carolina Supreme Court.

The court's decision Edit

The Supreme Court in a 7-2 decision reversed the Commission and the lower courts, finding that, as applied, the government's denial of Sherbert's claim was an unconstitutional burden on the free exercise of her religion. The majority opinion effectively created the Sherbert Test, determining whether government action runs afoul of the Free Exercise Clause.

Brennan's majority opinion Edit

Brennan, writing for the majority, stated that denial of Sherbert's unemployment claim represented a substantial burden upon her. Even if that burden took the form of denial of a privilege to unemployment compensation, instead of violating compensation she was entitled to by right, it still effectively impeded her free exercise of her religion. As Brennan wrote, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." Brennan dismissed the claim that his decision violated the Establishment Clause by establishing the Seventh-day Adventist religion. Finally, the majority opinion did not consider the Equal Protection argument, since it had already ruled in Sherbert's favor on First Amendment grounds.

Douglas and Stewart's concurring opinions Edit

Douglas wrote separately to explain that the issue was not the degree of injury to Sherbert, but South Carolina's denial of unemployment on the basis of her beliefs. The issue was not individual action, but government action, and under what basis government could deny someone benefits.

Stewart concurred in the result, but not in the majority's reasoning. He did not dismiss the Establishment Clause issue as the majority did. Instead, he identified as a "double-barreled dilemma" between Free Exercise Clause protection of Sherbert's actions and - as it had been interpreted, wrongly in his view, by the court - Establishment Clause prohibition of such protection. He also disagreed with the majority's claim that a cited precedent, Braunfeld v. Brown, was distinguishable from Sherbert.

Harlan's dissenting opinion Edit

Harlan, in a characteristically formalist reading of the relevant law, argued that the Commission denied Sherbert unemployment based on the same reason they might any secular claimant, that she was not "available for work" because of a private decision she had made. More centrally, he rejected the majority opinion, arguing that the Free Exercise Clause only required neutrality toward religion in this case, which would not include exempting Sherbert, though the Constitution would permit a legislature to create such an exemption.

The Sherbert Test Edit

In Sherbert, the Court set out a three-prong test for courts to use in determining whether the government has violated an individual's constitutionally-protected right to the free exercise of religion.

1. The first prong investigates whether government has burdened the individual's free exercise of religion. If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual's free exercise of religion.

2. However, under this test not all burdens placed on religious exercise are constitutionally prohibited. If the first prong is passed, the government may still constitutionally impose the burden on the individual's free exercise if the government can show

it possesses some compelling state interest that justifies the infringement (the compelling interest prong); and

no alternative form of regulation can avoid the infringement and still achieve the state's end (the narrow tailoring prong).

Limiting of the Sherbert Test Edit

The Supreme Court sharply curtailed the Sherbert Test in the 1980s, culminating in the 1990 landmark case Employment Division v. Smith. In Smith, the court held that free exercise exemptions were not required from generally applicable laws. In response to the Smith decision, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to reinstate the Sherbert Test as a statutory right. RFRA purported to restore strict scrutiny analysis to all free exercise cases in which the plaintiff proves a substantial burden on the free exercise of his or her religion. However, four years later, the court struck down RFRA as applied to Constitutional interpretation. In City of Boerne v. Flores, 521 U.S. 507 (1997), the court found that RFRA, as applied to the states, exceeded Congress's power under Section 5 of the Fourteenth Amendment. But the ruling did not necessarily limit RFRA's effect on interpretation of federal statutes. Using a parliamentary procedure known as unanimous consent, both the House and the Senate re-enacted RFRA's provisions in 2000, in conjunction with adding a similar statutory test to the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Without addressing RFRA's constitutionality, the Supreme Court has held, in Gonzales v. UDV, 546 U.S. 418 (2006), that RFRA applies to other federal statutes. In UDV, the court applied the statutory Sherbert Test created by RFRA and found that the conduct in question-use of a Schedule I drug in a religious ritual-was protected under the First Amendment.

References Edit

Further reading Edit

Alley, Robert S. (1999). The Constitution & Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books. pp. 449-453. ISBN 1-57392-703-1.

External links Edit

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Sherbert v. Verner , 374 U.S. 398 (1963), was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in question was narrowly tailored before it denied unemployment compensation to someone who was fired because her job requirements substantially conflicted with her religion.[1] Sherbert v.

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Free press

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In April 2019, someone wanted to use “FUCT” as a trademark, which stand for “Friends U Can’t Trust”, but the United States Patent & Trademark Office didn’t approve it, the reason of it was that the trademark was not moral. But the Supreme Court said it’s unconstitutional that the United States Patent & Trademark Office refuse the trademark, because it was against the right of free speech so the trademark eventually got approved.

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Iancu v. Brunetti, No. 18-302, 588 U.S. ___ (2019), is a United States Supreme Court case related to the registration of trademarks under the Lanham Act.[1][2] The case seeks to determine if refusal to grant "scandalous" trademarks under the Lanham Act is unconstitutional under the freedom of speech clause in the First Amendment to the United States Constitution. The Court ruled in June 2019 that the restrictions of "immoral" or "scandalous" trademarks defined by the Lanham Act is unconstitutional as it permits the United States Patent & Trademark Office to engage in viewpoint discrimination, violating the First Amendment.[3]

Iancu v. Brunetti

Argued April 15, 2019
Decided June 24, 2019

Full case name
Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office v. Erik Brunetti

Docket no.
18-302

Citations

588 U.S. (more)

Argument
Oral argument

Case history

Prior

In re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017); cert. granted, 139 S. Ct. 782 (2019).

Questions presented

Whether the Lanham Act's prohibition on the federal registration of "immoral" or "scandalous" marks is facially invalid under the Free Speech Clause of the First Amendment

Holding

The Lanham Act prohibition on the registration of "immoral" or "scandalous" trademarks infringes the First Amendment.

Court membership

Chief Justice

John Roberts

Associate Justices

Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh

Case opinions

Majority

Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch, Kavanaugh

Concurrence

Alito

Concur/dissent

Roberts

Concur/dissent

Breyer

Concur/dissent

Sotomayor, joined by Breyer

Laws applied

Legal background Edit

Section 2(a) of the Lanham Act, passed in 1946, holds that a trademark may be refused registration by the United States Patent and Trademark Office if the subject consists of "immoral, deceptive, or scandalous matter". Section 2(a) had also held that trademarks may be refused if they were deemed "disparaging" to individuals or groups, but the Supreme Court unanimously ruled in Matal v. Tam (2017) this restriction on "disparaging" trademarks was unconstitutional under the First Amendment.[4]

Case background Edit

Erik Brunetti started a clothing line with skateboarder Natas Kaupas in 1990 using the name Fuct (stylized as "FUCT"). Fuct stood as an initialism for "Friends U Can't Trust", but Brunetti felt its phonetic closeness to the expletive " fucked" was humorous.[5] Around 2010, Brunetti saw a number of knock-offs of his clothing line being sold on eBay and other Internet sites, inappropriately using the "Fuct" label.[6] In 2011, Brunetti sought to register the trademark on Fuct to stop these knock-offs, but was denied registration by the Office examiner that stated the word was phonetically similar to the expletive "fucked", which was well-established as a "scandalous" word under Section 2(a) of the Lanham Act. This decision was upheld by the Trademark Trial and Appeal Board (TTAB) in 2014.[7]

Brunetti then appealed the decision to the United States Court of Appeals for the Federal Circuit with support of the American Civil Liberties Union (ACLU). The ACLU argued that the Supreme Court had already ruled there was a higher level of scrutiny when the mere display of a potentially offensive word can be regulated from the 1971 case Cohen v. California.[5] In 2017, the Federal Circuit agreed with the TTAB that "Fuct" would fall under the definition of a "scandalous" word, not only for its similarity to the vulgar word but also the use of such words in the target youthful market for the clothing line. However, the Federal Circuit also ruled that the restriction against "scandalous" words of Section 2(a) of the Lanham Act was unconstitutional as it violated Brunetti's rights to free speech, particularly in light of the government failing to take any steps to regulate such speech across the Internet, and reversed the TTAB's holdings. The Federal Circuit referred back to its prior decision and its Supreme Court affirmation in Matal v. Tam related to "disparaging" trademarks, in that outside of the area of trademarks, such language remains unrestricted as private speech and not government speech.[8][5]

Supreme Court Edit

The Patent and Trademark Office, under its director Andrei Iancu, filed for writ of certiorari to the Supreme Court. The Court agreed to hear the case,[9] with oral arguments heard on April 15, 2019.[10][11] Observers believed a majority of the Justices would favor Brunetti's case and would strike out trademark restrictions on "immoral" or "scandalous" material in part due to past inconsistency in the Office's application of the law, with the Office having past approved trademarks on "FCUK" and "FUBAR".[6] The Justices raised the question of whether the implied word from "Fuct" would be considered scandalous to the clothing line's target audience of young adults, but also brought concerns that then the word would appear in advertising, which people outside of this demographic may consider inappropriate speech.[6] The Court did express caution that others may follow suit with trademarking near matches to other well-established vulgar words, and that it should be up to Congress to define a more exacting line that otherwise does not violate the First Amendment.[11]

The Court issued its decision on June 24, 2019, affirming the decision of the Federal Circuit Court.[3] The majority opinion was written by Justice Elena Kagan, joined by Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Kagan wrote that, as the Court had found in Matal v. Tam, that the Office would need to engage in, and has engaged in, "viewpoint discrimination" to determine if trademark requests fell in to the vague definitions of "immoral" or "scandalous". With the Office as a government entity, this would be a violation of First Amendment rights, and thus decided that this portion of the Lanham Act was unconstitutional. Justice Samuel Alito wrote a concurring opinion, pointing out that the Court had to make this decision because of the vagueness of the "immoral" and "scandalous" terms in the law, but Congress is empowered to create law that would make a more narrow determination that removed the viewpoint discrimination concern for the Office.[12]

Separate opinions, each dissenting in part with the majority, were written by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. The three generally felt that interpreting the "immoral" aspect of the Lanham Act was difficult, and thus agreed with the majority in striking that portion of the law.[13] However all three felt the "scandalous" interpretation was not as vague as majority opinion suggested, and that the Office would not be engaging in viewpoint discrimination through this action. The three, along with Alito in his concurring opinion, did express concern that this decision will lead to a flood of new trademarks that would be considered crude, and the creation of public spaces that would be repugnant to some people.[12][14]

References Edit

External links Edit

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Iancu v. Brunetti , No. 18-302, 588 U.S. ___ (2019), is a United States Supreme Court case related to the registration of trademarks under the Lanham Act.[1] [2] The case seeks to determine if refusal to grant "scandalous" trademarks under the Lanham Act is unconstitutional under the freedom of speech clause in the First Amendment to the United States Constitution.

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The Pepperdine University administration decided not to exclude the artworks of Alessandra Guth from an exhibition because the works depicted nude bodies. Guth wanted to encourage discussion of sexuality, the human body and religion, but NCAC (national coalition against censorship) has asked Pepperdine to restore Guth’s works to full display alongside the works of her peers.

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Administrators at Pepperdine University in Malibu, California, plan to quarantine the artworks of Alessandra Guth, a senior and an art major, from a forthcoming exhibition because they depict nude bodies. NCAC has written to Pepperdine's president, Jim Gash, to urge the university to refrain from censoring their student and uphold their commitment to academic and artistic freedom.

Guth produced a series of seven photographic works that reference The Seven Deadly Sins. The works are intended to encourage discussion around themes of the human body, religion and sexuality, and depict fellow students' nude bodies (without displaying their faces) printed on canvas and suspended in frames.

Rather than displaying the works with other students' works in the primary exhibition space, administrators have decided to sequester Guth's works by installing them in a mobile art gallery adjacent to the main space for the night of the opening reception on November 21, after which, the mobile gallery will be moved off campus. While her peers' works will remain on view for the remainder of the semester, Guth's works will no longer be displayed after the opening and will be censored for the duration.

The works depict simple nudes, which are neither obscene nor pornographic, and belong to an artistic tradition of depicting nudes as a primary subject for artists throughout history.

Artistic freedom at universities is the subject of a 1990 statement adopted at the " Wolf Trap Conference on Academic Freedom and Artistic Expression." The statement has been endorsed by several organizations and academic institutions and holds that artistic freedom for students and faculty integral to academic freedom on campus.

As NCAC's Joy Garnett writes,

For a university dedicated to nurturing the inner and intellectual lives of its students, censoring artworks over their depiction of nudes is especially concerning. By quarantining and then removing these works, the university runs afoul of its mission to nurture the creative and intellectual wellbeing of its students and the core values of academic freedom. ... The response to art displayed on a college campus should be the same as the response to ideas voiced in the classroom: discussion and debate, not censorship.

NCAC has asked Pepperdine to restore Guth's works to full display alongside the works of her peers.

NCAC's letter to Pepperdine University is below. Click here for a full screen view.

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Pepperdine University Censors Student's Art

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Images courtesy of artist, Alessandra Guth Administrators at Pepperdine University in Malibu, California, plan to quarantine the artworks of Alessandra Guth, a senior and an art major, from a forthcoming exhibition because they depict nude bodies.

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Free petition

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Free speech

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If the amendment doesn’t exist, then people won’t have the basic rights,so they might be put in jail if they say anything inappropriate and they could not say anything if the law is unfair, so I think the amendment is important