Justices’ Disappointments Surround Supreme Court’s Decision that Free Exercise Clause Permits Exemption from Philadelphia’s Foster Placement Policies

Fulton, et al., v. City of Philadelphia, et al., No. 19-123.  Opinion of the Court by Roberts, C.J., issued June 17, 2021.


The Catholic Church has long been involved in providing services to children in need.  Until recently, Catholic Social Services of Philadelphia, under contract with the city, evaluated potential foster parents and made recommendations to the city for placement.  However, when Catholic Social Services disclosed that it would not certify same-sex couples for placements, Philadelphia determined that it would not enter into another contract with Catholic Social Services unless Catholic Social Services would agree to certify same sex couples for foster care service.

Litigation ensued, notwithstanding that no same sex couple has ever requested or been denied certification by Catholic Social Service.

A federal district court denied  Catholic Social Services request for injunctive relief, finding that the agency was unlikely to prevail on either a Free Exercise or Free Speech claim, as a neutral law of general applicability is not subject to Free Exercise challenges, and Free Speech principles were inapplicable where the social services agency was certifying for a government agency.

The Third Circuit agreed.  The Supreme Court granted certiorari, having in mind whether or not it ought to overrule Employment Division of the Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990).

Employment Division of the Department of Human Services of Oregon v. Smith (“Smith”), supra, held that neutral laws of general applicability are not subject to Free Exercise challenges.

In this case, the Supreme Court declined to revisit Smtih, deciding instead that because Philadelphia’s contract with Catholic Social Services included the potential for exemption from same-sex services, the possibility of exemption removes the agreement from consideration as would apply to “neutral laws of general applicability”.  

The Supreme Court found it unquestionable that Philadelphia’s refusal to enter into an agreement with Catholic Social Services, and its retroactive rejection of certifications already made, substantially burdened religious exercise by forcing Catholic Social Services to exercise its faith and refrain from providing services to the city, or by abandoning its faith and providing those services.

The Court could find no compelling reason for rejecting Catholic Social Services, particularly as no harm could be envisioned from continuing to accept their services.  If a request for certification of a same-sex couple were presented, that request could be presented instead to another agency that could accept the couple. 

The Court rejected Philadelphia’s arguments that it ought to have more latitude and received more deference in Free Exercise matters when the city acts in a managerial capacity.  The Court found no basis in the law for abandoning constitutional principles on the basis of the City’s role.

Heckling the Umpire.  The Court’s narrow decision in this case precipitated the issuance of three separate concurrences, each reflecting the joining justices’ disappointment in not overruling Smith.  Justice Alito has published a 77-page history of Free Exercise jurisprudence, which includes a scathing assessment of the Court’s opinion, offering that it might as well have been written in disappearing ink.  All Philadelphia needs to do to avert the Court’s decision is remove the exemption language.  This would place petitioners back at the beginning, with another cycle of litigation ahead.

Fulton v. Philadelphia, No. 19-123 (S. Ct.) June 17, 2021  

 






Crisis Upon Crisis: Landlords Ask Supreme Court Justice to Vacate Stay of Order Staying CDC Order Staying Evictions


Alabama Association of Realtors, et al.  v. U.S. Department of Health and Human Services, No. 20A169.  Emergency application to Chief Justice of the United States Supreme Court and Circuit Justice for the D.C. Circuit John G. Roberts, Jr.  submitted June 2, 2021; Response submitted June 10, 2021. 


The Centers for Disease Control (CDC), following lapse of a federal legislative order, issued and later extended an order suspending landlords’ powers to evict non-paying tenants during the COVID-19 pandemic.  It was thought that a potential for massive evictions existed which would precipitate, among other things, homelessness or forced overcrowding of housing, which would increase the likelihood of viral contagion and disease. 

The CDC order will lapse on June 30th unless it is extended.

Tenants Stay While Landlords Pay. The eviction moratorium, as it is called, has relieved qualifying tenants of the obligation to pay rent.  Landlords have not been relieved of the obligation to pay bills.  

Various calculations present various estimates of the value of lost rental income during this time.  There is no doubt that it is, simply stated, a lot, but how much, in millions or billions, is disputed, as is the ability of a Congressional appropriation of funds payable to the states and, in turn, through the states and to the landlords, to mitigate their losses.  Landlords argue that if federal funds become available, the money will be insufficient to cover all losses and will be so delayed as to diminish the value of payment.

Not Merely a Civil Matter.  Lost rents are not landlords’ only worry.  Violations of the eviction moratorium carry criminal penalties and substantial fines. 

Defeat Snatched from the Jaws of Victory. In an effort to stem the accrual of further losses, plaintiffs real estate owners, managers, and trade associations sought and received a favorable judgment in federal district court in the District of Columbia.  With the judgment came an order enjoining the operation of the CDC order nationwide.  Notwithstanding its judgment and order, relief was immediately stayed by the issuing court because the court perceived that the government presented significant legal questions for review.  The United States Court of Appeals for the District of Columbia refused to vacate the order.  Petition to the Circuit Judge of the United States Supreme Court ensued.

Power and Its Exercise. Plaintiffs submit that the trial court was correct in perceiving that the CDC’s eviction moratorium order was not within its statutory power and that staying that determination has only increased irreparable harms to landlords nationally.  Plaintiffs submit that the statute authorizing the CDC to issue orders to stop the spread of disease is limited to quarantine and inspection measures.  The CDC’s disruption of landlord-tenant relations, powers reserved to the states, presents constitutional questions that the U.S. Supreme Court must review, and that pending that review, the stay must be vacated to prevent greater harm to the landlords.

Plaintiffs need relief notwithstanding that the current order will expire on June 30th, they argue, for the failure to vacate the stay will render plaintiffs’ victory meaningless.  

The Department of Health and Human Services, on behalf of its component the Centers for Disease Control, insist that the CDC has plenary powers to issue orders to inhibit disease providing the CDC articulates its perception of a need to do so.  Such powers are not unlimited, as plaintiffs argue, nor are there questions of unconstitutional delegation, for no power committed to the Legislative Branch has been delegated, and Congress may delegate to HHS the power to act in the interest of the public.

Equity (in the Traditional Sense). The arguments for emergency action by the Circuit Justice by and large concern whether or not appropriate standards for issuance of the stay in the trial court, or denial of vacation of that stay, in the appellate court, were selected and applied.  These are equitable considerations which involve not only judicial discretion and deference on review,  but also a showing of demonstrable error. 

The federal government is supported by twenty-three state amici.  Their brief indicates that states will administer federal monies to landlords to compensate for lost rent, but doing so will require time.  

JustLawful’s Crystal Ball:  The proximity in time of the emergency petition to the expiration of the CDC eviction moratorium creates high drama.  However, Circuit Justice Roberts may not wish to decide more law than is necessary, particularly as judicial deference to agency determinations would counsel against an eleventh hour intervention, especially where doing so might, either directly or paradoxically, further destabilize already deeply distressed rental housing conditions.  

Alabama Association of Realtors, et al. v. HHS 20A169 SCOTUS Application to Vacate Stay

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Lower Court Orders and Opinion

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Provisions of Law

Association of Alabama Realtors, et al. v. HHS 20A169 Opposition

Alabama Association of Realtors, et al. v. HHS 20A169 Amicus Brief

Public Figures, Private Law: Facebook Oversight Board Upholds Initial Removal of President’s Statements and Presence but Condemns Facebook’s Failure to Articulate Standards or Time Limits


Case No. 2021 -001 – FB – FBR.  Facebook Oversight Board, May 5, 2021.


Facebook is an online social media platform that welcomes all except those determined to have acted badly according to its internal standards, which are described generally in its Terms of Service, with which users promise compliance.   For the errant poster, Facebook may administer rebukes, suspend or terminate service, as well as removing content it deems unsuitable. 

Facebook thus administers and enforces rules of its own making by its own employees.  In light of persistent concerns about this insularity, Facebook founder Mark Zuckerberg created a board of review, funded by Facebook but administered independently.  

This week the Facebook Oversight Board issued an opinion unsigned by its constellation of prominent international figures that concluded that Facebook did not err in removing statements of then-President Donald J. Trump at the time of and concerning violence that erupted on January 6, 2021 in the nation’s Capitol following a rally of Trump supporters.  

While correct in the immediacy of its removal and ban in light of the circumstances at the time, in which the then-President’s words were perceived to have incited insurrection, the Facebook Oversight Board condemned Facebook’s failure to articulate the reasons and applicable standards supporting the removal and ban and the apparent eternal silencing of Facebook account holder Trump.  

The Facebook Oversight Board sent the case back to Facebook for further proceedings. 

The decision is no small matter and some have deemed it a landmark of equal stature with Marbury v. Madison, 5 U.S. 137 (1803), the first enunciation by the United States Supreme Court of its reason for being and its power of judicial review.  

This proceeding can be seen as a foundational attempt to provide some structure for review of platform provider’s decisions.  

This matters greatly (“bigly”, some might say) because internet service providers are almost entirely immune from suit for questionable decisions and at the same time the government of the United States cannot intervene to regulate online speech as it is constrained by the First Amendment to the Constitution of the United States.  

Section 230:  the good, the bad, and the sometimes ugly. When widespread public adoption of the internet was in its infancy, Congress sought to inhibit unprotected speech while protecting internet service providers from liability for statements not of their own creation posted on platforms.  Section 230 of the Communications Decency Act of 1996 preempts federal law and precludes suit against any platform provider who does not create content.  The platform is free to remove or to otherwise police its product without losing those immunities.  

This would leave a user without recourse unless the platform’s actions could be challenged in court in contract, which in limited measure can be done, or through internal review with the platform provider, as is the case in this week’s opinion.

The creation of an international body not necessarily bound by the laws of any one nation cannot be other than a major inflection point in modern law.  Prominent First Amendment authorities question whose law should govern such cases.  

It is far too soon to tell whether this new thing is a good thing, and much is lost in cheers and jeers attaching to personalities, whether that of the former President or of the founder and CEO of Facebook.  What is to the Facebook Oversight Board’s credit is that the reviewing body articulated not only the facts determined but also the standards embraced.  The virtue of its reliance on standards drawn from international human rights declarations, which remain aspirational domestically if not adopted by the United States, awaits further reflection.  

Links to the decision and to other materials are posted below. 

The Facebook Oversight Board opinion:  

2021 001 FB FBR Oversight Board Opinion

The Facebook Oversight Board announcement and overview of its opinion:

Oversight Board Upholds Trump Suspension While Finding Facebook Failed to Apply Proper Penalty

The composition of the Oversight Board:

Facebook Oversight Board

A primer on the creation of the Oversight Board and a reflection on this week’s opinion:

Lawfareblog: About the Facebook Oversight Board

Lawfareblog: It’s Not Over: Oversight Board Trump Decision is Just the Start

Reflections on jurisprudential questions prompted by the Facebook Oversight Board determination:

Volokh Conspiracy: Whose Rules Should Govern How Americans Speak with Other Americans Online

Responses to announcement of the decision and opinion in the mainstream media:

Facebook Oversight Board Tells Zuckerberg He’s the Decider on Trump – The New York Times

Trump Is Still Banned on YouTube. Now the Clock Is Ticking. – WSJ

Facebook Oversight Board’s Trump Decision was Marbury v Madison Moment – CNBC

Two recent cases discussing Section 230 of the Communications Decency Act of 1996:

Daniels v Alphabet Inc ND Cal 2021

Murphy v Twitter Inc Cal App 2021

Discussions of United States’ positions on international human rights conventions:

Where the United States Stands on 10 International Human Rights Treaties – The Leadership Conference Education Fund

Human Rights and the United States

Public commentary on the controversy submitted to the Facebook Oversight Board:

Facebook Oversight Board Public Comments

School Is Out! Or Is It? Supreme Court to Consider School’s Constitutional Capacity to Discipline Student’s Off-Site Online Speech


Mahanoy Area School District v. B.L., et al., No. 20-255 (S. Ct.).  Oral argument scheduled for April 28, 2021 at 10 a.m.


Student B.L., who was all in on cheerleading activities, was distressed to learn that a less senior student had jumped the line to the varsity squad, while she, with a year’s experience to her credit, remained on the junior varsity squad.  As is normative among digital natives, B.L. made her views known online on the social media application Snapchat.  B.L. did not have a good word to say, and indeed she used some words that a grandmother might kindly term “unladylike.”

Soon thereafter the school was abuzz with the news of B.L.’s postings.  School administrators, displeased with her having posted material that it considered disrespectful and disruptive of school and school-related activities, determined that she ought to sit the cheerleading season out.  This was fiercely protested by B.L. and her family.  The school would not budge, and this case, which questions how much off-site speech a school may discipline, ensued.

During the Viet Nam War, students protesting the United States’ participation in that conflict came to school wearing black arm bands to signify their disagreement.  When a school tried to countermand this activity, the Supreme Court disciplined the school instead.  In Tinker v. Des Moines Independent Community School District, et al, 393 U.S. 503 (1969), the Court concluded that minor students are not without Constitutional rights, including speech and expressive rights.  Schools may not interfere with students’ speech and expressive activities except where the ordinary activity of the school or the rights of others may be substantially disrupted thereby.

Life today is no longer constrained geographically as in the past.  Communication is instant online and that communication may reach an audience any time and any where.   Boundaries as they once were known are no more, leaving schools to wonder how they might navigate the shoals of order and expression.

The petitioning school district argues that it was error for the trial and appellate courts to interpret Tinker as inapplicable to off-site activity.  Schools, responsible for so much of students’ lives in the day to day, must be able to maintain civility when offsite online behavior interferes with order or threatens others.

B.L. counters that the First Amendment rights recognized in Tinker would be meaningless if students, fearful of condemnation and harsh consequences from school authorities, were not able to communicate online as they would wish.

The United States, as amicus with a bit more clout than many other amici, while favoring the school’s position, suggests that there are several lenses with which to evaluate the interests of the parties, but asks the Supreme Court to return the case to the lower courts for further developments.

Mahanoy Area School District v. B.L., No. 20-255 Brief for Petitioner

Mahanoy Area School District v. B.L., No. 20-255 Joint Appendix

Mahanoy Area School District v B.L., No. 20-255 Brief for Respondents

Mahanoy Area School District v. B.L., No. 20-255 Reply Brief for Petitioner

Mahanoy Area School District v. B.L., No. 20-255 United States’ Amicus Curiae Brief

Funny Things Have Happened on the Way to the Fora: Justice Thomas Proffers Adapting Common Carrier Law to Digital Media to Address Speech Concerns

Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).


Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space.  As such, the former president could not block others’ or their responses without violating the First Amendment. 

 

In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.

 

While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.  

 

Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet. 

 

Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason.  This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are.  It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.

 

If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action.  Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally.  While market power has traditionally been a part of common carrier analyses, it is not a determining factor:  entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.  



This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.  


Supreme Court Determination 

20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04_05_2021)

Second Circuit Decision Regarding Rehearing en banc:

Knight First Amendment Inst at Columbia Univ v Trump 953 F3d 216 Mem 2nd Cir 2020

Second Circuit Decision on Appeal:

Knight First Amendment Inst At Columbia Univ v Trump 928 F3d 226 2nd Cir 2019

Opinion of the United States District Court

Knight First Amendment Inst At Columbia Univ v Trump 302 F Supp 3d 541 SD NY 2018


 



 

Pronouns and Principles: Sixth Circuit Holds that University Faculty Member’s Speech and Religious Beliefs Enjoy First Amendment Protections

Meriwether v. Hartop, et al, Jane Doe, and Sexuality and Gender Acceptance, No. 20-2389 (6th Cir.).  March 26, 2021.


The United States Court of Appeals for the Sixth Circuit, observing that the trial court had lost sight of fundamental First Amendment principles, has vacated dismissal of a professor’s case alleging that his employer, state university, impermissibly infringed on his First Amendment speech rights and impinged on his Free Exercise interests.  

 

Accepting solely for purposes of its review that plaintiff Meriwether’s allegations are true, the court recounted that in the course of teaching that Meriwether, a professor at Shawnee State University for 25 years, referred to a student as a male.  That student approached Meriwether after class and demanded to be referred to as a female.  Meriwether demurred based on religious principles and an inability to affirm that which he believes to be untrue.  The student uttered a coarse epithet and promised to have Meriwether fired.

 

After reporting the incident, one colleague opined that religion ought not be taught at the school, knowing that Meriwether had done exactly that for a quarter of a century.   The school insisted that Meriwether conform to its anti-discrimination policies by conforming his language to the student’s preference or by not using pronouns at all.  As Meriwether stated he could not on principle do the first nor in practice do the second, the school administrators attempted to reach a compromise in which Meriwether would address the student with neutral terms.  

 

The student complained repeatedly, prompting Title IX review, which concluded that Meriwether had created a hostile environment in violation of that law, which guarantees equal treatment in education.  Meriwether presented a grievance through the faculty union which prompted laughter from the hearing official, who would later be the reviewing official on appeal.  That reviewing official’s delegate determined that Meriwether was undeserving of an accommodation based on religious principles perceived to be bigoted, and therefore unworthy of legal protection. 

 

Meetings were held and memoranda were generated and the compromise offered to Meriwether was revoked.  He was instructed to conform to the school’s speech policies or face discipline, which might include termination or suspension without pay.  A written warning to that effect was added to his official file.  

 

Meriwether sued and lost in federal district court.  On appeal, the Sixth Circuit has stressed that teachers at public universities do not lose First Amendment rights by virtue of that status. The university’s interest in administration, premised on inchoate fears, did not outweigh the faculty member’s speech rights.  Statutes and policies intended to ensure the fair treatment of all are not superior to all other statutes and policies, the court observed.  The finding of a violation of Title IX was in error where there was no pervasive culture making student life intolerable. 

 

The Sixth Circuit concluded that the school had compelled speech by demanding that Meriwether use pronouns deemed acceptable according to policy, and compelled silence in that speech without pronouns was impossible, and an explanation of his views on his syllabus was denied, as was his request for religious accommodation, none of which, subject to development of the record, may be constitutionally tolerable.  Equally problematic was the school’s failure to treat Meriwether’s beliefs even-handedly.  The court found the hostility displayed toward Meriwether troubling and contrary to Supreme Court precedent.  

 

The case has been remanded to the federal trial court for further proceedings.  

Meriwether v. Hartop, et al. No. 20-3289 (6thCircuit).Opinion March 26, 2021

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

Not Quite Down Pat: New First Amendment Bivens Action Emerges from TSA Employees’ Interference with Recording of “Pat Down” Search

Dyer v. Smith et al., No. 3:19-cv-921 (E.D. Va.) February 23, 2021


The United States District Court for the Eastern District of Virginia recently denied transportation security agents’ motion to dismiss in a suit precipitated by the agents’ insistence that a travelling couple stop  video recording agents patting down — physically searching outside the clothes — one partner, and that anything already recorded be destroyed. 

The federal district court reviewed and rejected factors cautioning against expansion of Bivens actions, observing that the law is clear not only through decisions but also by custom that there exists a recognized First Amendment right to gather news and, as a corollary proposition, to record officials in the conduct of official business.  The court concluded that in the absence of any available remedy, the couple’s Bivens action may proceed.  

JustLawful Observation:  This straightforward summary may provoke an “of course!” response, but that response might be a bit hasty, given that the court recognized a new Bivens action, when in the wake of Hernadez v. Mesa, 528 U.S. ____ (2020), decided during the last Supreme Court term, it was thought that Bivens actions would soon be unicorns:  fanciful but imaginary.

Counsel for the transportation agents thinks so, too, and is pursuing interlocutory review.E.D. Virginia Opinion:

Dyer v Smith, No. 3:19-cv-921 (E.D. Va.) February 23, 2021

Request for Interlocutory Review:

Dyer v. Smith, No. 3:19-cv-921. Defendants’ Memorandum Supporting Motion to Certify Interlocutory Review

Recent U.S. Supreme Court Consideration of Bivens Actions:

Hernandez v Mesa, 528 U.S. , 140 SCt 735, 206 LEd2d 29 (2020)

Commentary on the Future of Bivens Actions

SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment. Robertson, C. ABA Practice Points. April, 2020.

When Zeal Outstrips Reason: Second Circuit Upholds Judgment Stemming from Website’s Publication of Allegations of Child Sexual Abuse

Powell v. Jones-Soderman and Foundation for the Child Victims of Family Courts, No. 20-532-CV (2nd Cir.) February 26, 2021.


The United States Court of Appeals for the Second Circuit recently upheld a Connecticut federal court judgment that the founder of a child advocacy foundation had libeled a Connecticut father when, during pending divorce proceedings, she published on her website allegations that the father had committed child sexual abuse. 

On appeal, Jones-Soderman argued that the trial court erred in finding her liable because proof of the falsity of her statements was lacking, and such proof was necessary to overcome her First Amendment defense. Moreover, she said that the trial court failed to give consideration to her good faith belief that she was publishing the truth.  

While the First Amendment may protect commentary on matters of public interest, no such protection extends to demonstrably false statements, which the appellate court found were amply examined by the federal trial court in taking testimony and in admitting to the record state court findings that the allegations of sexual abuse were without merit.  

Jones-Soderman is not entitled to reliance on an “actual malice” standard for publication of defamatory material, the Second Circuit found, but even if she were, that standard would have been met, and it would negate any qualified privilege she might have.  

That Jones-Soderman published statements about the plaintiff when in his ex-wife’s employ in a custody battle and with knowledge that clinicians, state authorities, and the state court had found the abuse claims without foundation.  No qualified privilege may serve as shield in such circumstances, nor may a “good faith belief” in the truth of the published statements be invoked where Jones-Soderman knew of evidence contradicting the claims.

Jones-Soderman’s status as a mandated reporter of child abuse is of no moment with respect to the facts in this case, particularly where no complaint to Child Protective Services was ever made.

Powell v. Jones-Soderberg, No. 20-532 (2nd Cir.)

Going to the Chapel (Again): Supreme Court Enjoins California’s Restriction on Indoor Worship, Chastising Ninth Circuit for Failing to Reach Result “Clearly Dictated” by Supreme Court’s Decision Just Days Earlier

Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

  • Justices Thomas and Gorsuch would grant all the relief sought by the church.  
  • Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
  • Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
  • Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
  • Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
  • Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
  • California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
  • The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
  • Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
  • Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
  • Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
  • Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
  • In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
  • The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
  • Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
  • The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
  • The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
  • The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
  • Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021

Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment


 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established


What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

The Preacher Talked to Me and He Smiled: Supreme Court Upholds Injunction Permitting Minister’s Presence at Alabama Prisoner’s Execution

Commissioner v. Smith, No. 20A128, 592 U.S. ____ (February 11, 2021).


Justice Kagan, with three others, has opined that Alabama failed to meet the strict scrutiny test applicable under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Alabama’s global prohibition on ministerial presence at execution substantially burdens a prisoner’s religious exercise, and Alabama failed to demonstrate that this preclusion is the least restrictive means of advancing the compelling state interest in prison security.  As such, the injunction permitting the prisoner to have a religious presence at execution is proper and will not be dissolved.

Justice Thomas, without writing separately,  would have granted the petition to dissolve the injunction.

Justice Kavanaugh and Chief Justice Roberts would grant the petition as reflecting a non-discriminatory policy, but would encourage states to implement measures that would fulfill requests such as the inmate’s here and thereby avoid protracted litigation. 

 

Commissioner v. Smith, 20a128, 592 U.S.__(February 11, 2021)




Pour l’instant, ils ne parlent pas: Federal Judge Denies Social Media Platform Parler’s Request that Amazon Web Services Restore Its Service

Parler LLC v, Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash). Order denying preliminary injunctive relief entered January 21, 2021.


A federal court in Washington has denied Parler’s request that Amazon Web Services (AWS) be  ordered to resume web hosting service to social media platform Parler.  

 

The court found that the standards for preliminary injunctive relief, particularly with respect to a likelihood of success on the merits, had not been met. 

 

First, the court found that Parler had not established that it would prevail on an antitrust claim, as neither an agreement between AWS and Twitter, nor a restraint of trade had been shown. AWS has insisted no contact between AWS and competitor Twitter had occurred.   

 

Second, AWS’s pursuit of lawful remedies, such as might be found in the parties’ agreement,  cannot support a claim for tortious interference with business.  

 

Third, Parler was not substantially likely to prevail on its contract claim where Parler was admittedly in breach of its agreement with AWS and suspension or termination was a consequence of a breach under the parties’ agreement.  

 

Counsel admitted at hearing that damages could make Parler whole, making it impossible to perceive that irreparable harm would ensue if an injunction was not issued.  

 

The balance of equities did not favor Parler, as it was admittedly in breach of its contract with AWS. 

 

The court noted that AWS had offered evidence that AWS did not treat Parler and Twitter differently on the same facts, for different services are provided to each company.  

 

Finally, the court noted that no policy supports compelling AWS to provide a platform for speech that might incite violence.

 

Parler LLC v Amazon Web Services 2 21-cv-0031 BJR Order Denying Preliminary Injunction

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

Parler Resists War of Words with Amazon Web Services and Insists Parler Will Likely Go Out of Business Absent Judicial Intervention

Parler, LLC v Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash,).  Telephone conference with court set for 10 a.m. PST on January 14, 2021.


In Reply to Amazon Web Services’ (AWS) Opposition to Parler’s Motion for Injunctive Relief, Parler argues that AWS miscasts termination as suspension, a position negated by AWS’ statement to Parler that Parler could do nothing to be restored to service.

 

Parler offers that AWS never advised Parler what contractual obligation Parler had allegedly breached. Most significantly, AWS breached the contract by failing to adhere to the thirty day period before termination the agreement requires.

 

AWS has always been aware of, and never questioned, Parler’s proactive practices concerning problematic posts, which are reactive and use a jury system issues with posts.  Parler envisioned moving to prospective artificial intelligence screening in the coming year. Moreover, AWS expressed interest in Parler’s adoption of AWS’ proprietary software, an arrangement which, if consummated, would essentially marry the two entities.

 

Parler states that it has always responded to any posting issues presented to it by AWS.  When competitor Twitter terminated Donald Trump’s account and created a Parler account, mass migration from Twitter to Parler caused Parler not only to crash but to face a backlog of troublesome posts.

 

Parler worked diligently to address problematic material, advising AWS of its progress, and was all but finished with the backlog when AWS terminated service to Parler.

 

Parler notes that no one arrested in connection with the January 6th violence in the U.S. Capitol had a Parler account, An individual killed there had an account that was dormant since November.  The posting of videos by account holders does not establish that the poster was present at the Capitol.

 

Parler argues that AWS has succumbed to pressure to suppress conservative speech as well as to deny the President social media access. 

 

Parler further argues that AWS has unlawfully preferenced the bigger and wealthier Twitter, ensuring Twitter’s market dominance by forcing Parler out of business.

 

Surely AWS can be seen as having interfered with business relationships, Parler argues, as AWS’ termination of Parler interfered with Parler’s relationships with every one of its fifteen million users.

 

Section 230 of the Communications Decency Act does not operate as a bar to an antitrust action:  Section 230 immunizes speech, not anticompetitive conduct, which the Ninth Circuit has recognized.

 

Parler states that AWS’ termination has made it difficult for Parler to find a new web hosting partner, making it likely that Parler will go out of business absent judicial intervention.  

 

If the court fails to enjoin AWS, Parler submits, AWS’ termination will likely be fatal to Parler, but an injunction will require only that AWS provide services as required in its contract with Parler, balancing the equities in Parler’s favor.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.). Parler Reply (2021-01-13)

 

It’s not us, it’s them: Amazon Web Services States Parler’s Breach of Agreement with AWS Permitted Suspension, Denies Antitrust Violation, and Claims Immunity under Section 230 of the Communications Decency Act of 1996

Parler, LLC v. Amazon Web Services, No. 2:21-cv-00031 (BJR) (W.D. Wash.). Opposition to motion for injunction filed January 12, 2021.


Amazon Web Services (AWS) has opposed Parler’s motion for injunctive relief, asserting that its agreement with Parler permitted AWS to suspend or terminate Parler because of repeated troubling postings after the November election and after the January 6th eruption of violence in the Capitol.

 

AWS states that its agreement with Parler specifically permits the actions that it took. Amazon Web Services states that Parler was slow or failed to remedy threatening postings, and that when tens of thousands of posts went unaddressed, AWS was within its contractual rights to terminate or suspend Parler

 

Parler cannot state a claim for tortious interference with business relationships in the absence of a breach of contract, AWS reasons.  AWS states that Parler has not in fact been harmed, given Parler’s assertion that it would be offline for only half a day.

 

AWS argues that Parler cannot state a claim for violation of the Sherman Act where there is no evidence of any anti-competitive communication, let alone agreement, between AWS and Parler’s competitor Twitter.  Any difference in treatment between Parler and Twitter by AWS exists because of differences in AWS’s agreements with the two entities. 

 

Finally, and perhaps most importantly, AWS asserts that Section 230 of the Communications Decency Act of 1996 immunizes AWS from liability for any actions it has taken to remove offensive or harmful material from Parler, including suspension or termination..  The immunities conferred by Section 230 preclude Parler’s claims for breach of contract and anticompetitive conduct, AWS argues.

 

AWS states that injunctive relief is inappropriate where an injunction would inhibit or preclude AWS from entering into or policing its agreements.

 

AWS has submitted redacted copies of allegedly problematic postings from Parler and has submitted, with a request that they remain under seal, unredacted copies of such material.

 

Parler may submit a response today. At this writing no time for oral argument has been established.

Parler LLC v. Amazon Web Services, No. 2.21-cv-00031 (W.D. Wash.) Opposition to Motion for Injunction

David Versus Goliath (and Goliath). Parler Challenges Amazon Web Services’ Suspension as Anti-Competitive and in Breach of Contract

Parler LLC v. Amazon Web Services, No 2:21-cv-00031 (BJR) (W.D. Wash.) Verified Complaint filed January 11, 2021.


Amazon Web Services (AWS) has suspended webhosting services to Parler, a relative newcomer to the social media marketplace because, AWS has stated, AWS doubts Parler’s capacity to monitor postings that incite violence.

 

AWS suspended  Parler almost immediately after Parler’s competitor Twitter permanently terminated the account of Donald J Trump.  This  termination prompted a mass migration of customers from Twitter to Parler as well as a significant spike in new customers. 

 

AWS towers above other web hosting services globally.  By comparison with the shuttered Parler, Parler observes that AWS has promised Twitter timeline and enhanced services.

 

Parler asserts in its Complaint in federal court in Washington that because of the suspension, which Parler says has been presented like a termination, AWS has irreparably damaged Parler’s business and reputation.  

 

Even if Parler is able to find another platform, Parler avers, the time and other costs associated with rewriting Parler’s AWS-compatible code will be extraordinary.

 

Parler alleges that AWS’ agreement to enhance services to Twitter while forcing Parler from the marketplace violates the Sherman Antitrust Act. 

 

Parler also asserts that by effectively terminating Parler without the thirty day’s notice required by the agreement between the two, AWS has breached its agreement with Parler.  

 

Parler denies any breach of its agreement with AWS, stating that it removed any allegedly unacceptable comments that AWS brought to Parler’s attention.  Parler observes that similar content has been retained without comment on Twitter.

 

Briefing concerning injunctive relief will close January 13th.  A time for oral argument has not been set.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.) Verified Complaint

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits


High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.


This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

An Even More Perfect Union: Committees of Conservative, Progressive and Libertarian Thinkers Try Their Hands at Drafting a U.S. Constitution Consonant with Their Respective Political Philosophies


It is inescapably apparent, all too often painfully so, that there is great discontent within our nation that runs not just to its operations but to its foundations.  So pervasive is this malaise that its presence may soon surpass the status once held by the weather:  everyone complains about it, but no one does anything about it. 

Not so at the National Constitution Center, which recently published three proposed drafts of a new U.S. Constitution, each drawn in accordance with the points of view of three separate committees of noted conservatives, progressives, and libertarians.

The conservatives, not unsurprisingly, are not as irked by the Founders’ handiwork than others, yet they are vehement in urgining the installation of reforms which would temporally limit public office and which would restore to the Senate an obligation to debate the common good.  

The conservative focus is on minimizing opportunities for mischief that ensue when short term gains are advanced at substantial costs to long term stability in service of shared goals.

The progressives focus on their overarching concern with true democracy and equality, with a particular interest in coming to terms with what, in fact and in practice, are rights, which rights ought to be protected, and in what manner.

Libertarians have even less cavil with the original Constitution, thinking initially that the committee would merely review the existing document and add to each Article and Amendment a succinct “we mean it.”  The were not so pleased with themselves, however, as to forsake drafting with an emphasis on curtailing the existence and exercise of federal powers. 

As such efforts go, this project seems a good one, efforts which might serve as starting points for the seemingly ever more elusive civil discussions that are hoped for but too infrequently had.  

The recently published drafts, with commentary, may be found at the links below.

The_Conservative_Constitution

The_Progressive_Constitution

The_Libertarian_Constitution_1

Supreme Court Holds Federal Officials May Be Liable Individually for Damages for Violations of the Religious Freedom Restoration Act


Tanzin, et al. v. Tanvir, et al., No. 19-71.  Opinion issued December 10, 2020.


The Religious Freedom Restoration Act (“RFRA”) was Congress’ attempt to re-introduce the highest standard of review for analyses of the constitutionality of laws that burden religion.  To survive a RFRA challenge, a measure that substantially burdens religious exercise must serve a compelling government interest by the least restrictive means. 

Prior to the enactment of RFRA, Employment Division v. Smith, 494 U.S. 872 (1990), a decision that remains both widely criticized and widely discussed, held that in general there is no constitutional offense to be found in generally applicable neutral laws that may incidentally burden religion. Enacted in 1993, RFRA was intended to restore the higher standard of review that Smith was perceived to have eroded.  

The scope of available remedies provided but not enumerated in RFRA is the subject of the case just decided, in which the plaintiffs objected to the government’s having placed them on “no fly” lists because, they asserted, they refused to act as informants for religious communities for the Federal Bureau of Investigation.  

Plaintiffs sued federal officials in their individual capacities.  Claims for injunctive relief were mooted by their removal from “no fly” lists, but plaintiffs would not abandon their claims for money damages.

The trial court that dismissed the claims for monetary damages was reversed by the United States Court of Appeals for the Second Circuit, which concluded that the language of RFRA providing “appropriate relief” to claimants and permitting actions against “the government” includes federal officials in their individual capacities.  The Supreme Court has agreed. 

Justice Thomas has proffered a textual analysis in support of the Court’s decision to reject the government’s argument that “government” as used in RFRA is limited to acts of officials in their official capacities, and that “government” cannot extend to the individual assets of federal employees which would be reached to satisfy judgments.

An ordinary and limited meaning of a word in a statute changes where Congress chooses to change the use of the word, Justice Thomas observed.  RFRA expands the definition of “government” to include officials or persons acting under color of law.

Officials are “persons” who are answerable under RFRA and judgments against them can be considered to be relief against the government.

Moreover, the “under color of law” language that appears in RFRA echoes the language of a principal civil rights statute, 42 U.S.C. Section 1983, which has been interpreted to apply to suits against officials in their official capacities. 

In general, “appropriate relief” may be fashioned according to context, but from common law forward money damages against officials have been available even where the sovereign itself is immune from suit.

In addition, although the 1988 Westfall Act precludes common law claims against federal officials, constitutional and statutory remedies are preserved.

Just as the language of 42 U.S.C. Section 1983 is an appropriate source of comparison for analysis of the scope of a cause of action under RFRA, so does the availability of money damages under Section 1983 serve as support for recognizing claims for money damages under RFRA. 

This is all the more apt, Justice Thomas states, where Section 1983 permits relief for violations of First Amendment interests.  In that RFRA was intended to return the law to the status quo ante Smith, monetary damages should be available in service of that end, to re-establish and to maintain a full panoply of relief.  

Congress did not limit redress under RFRA to equitable remedies, although it could have, and it is plain that such remedies will not be adequate, and hence not appropriate, Justice Thomas concluded, where costs have been incurred and losses occasioned which cannot be cured by any form of injunctive relief.

Neither the spectre of separation of powers concerns nor the desire for a presumption against monetary damages, as raised by the government, can transform those questions into matters for judicial intervention, the Court continued, where addressing such questions is the province of the legislative branch. 

With policy soundly committed to Congress, the Court noted that its decision does not in any way diminish the availability of qualified immunity defenses. 

JustLawful Observation:  The brevity of this opinion ought not be confused with the scope of its potential reach.  At a minimum, it will have all officialdom on its toes when it comes to matters impacting religion.

19-71 Tanzin v. Tanvir (12_10_2020)

The Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings



Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S.  _____. Injunctions pending appeal entered November 25, 2020.


The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari.  The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.

Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic.  These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes.  The measures may be enhanced or relaxed as the perception of prevalence or risk changes. 

Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the  Free Exercise Clause of the First Amendment of the United States Constitution.  The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued.  The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.  

There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services. 

Both petitioners were denied relief in the district and appellate courts.  Decision on the merits in the Second Circuit awaits briefing and argument in December.

Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.  

The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.

The Supreme Court has disagreed.  

The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends.  Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable.  As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate. 

The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited:  “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns.  Slip Op. at pp. 5-6.  

Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.”  Slip. Gorsuch dissent  at 2.  The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience.  If the Constitution  has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.”  Gorsuch dissent at 3.  

Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11  (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference.  Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not.  As the current restrictions involve core constitutional concerns, Jacobson does not control.  Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.  

Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations.  Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed.  Once a favored class is created, the state must say why those who are less favored are excluded.  

Justice Kavanaugh takes a programmatic view of the Court’s offer of relief.  If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact.  The petitioners will at least be permitted some clarity during the pending appellate process.

Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect.  If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.  

Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed.  The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health  and  safety must be balanced against religion.  The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.  

Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order.  The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.  

Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.

Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view.  And the mere reference to religion within the measures will not suffice to make them discriminatory.  Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020

Back to Bakke: First Circuit Finds No Error in Harvard’s Admissions Practices


Students for Fair Admissions v. President and Fellows of Harvard College, No. 19-2005 (1st Cir.)  November 12, 2020.


An advocacy group, questioning whether Harvard College’s admissions practices were unlawfully racially based, brought suit in federal district court.  The group was unsuccessful there and that result has not been disturbed on appeal.  

In general, racial ‘balancing’ in admissions practices is impermissible, as it is little other than impermissible racial “quota” practices by another name, but the same ratio of applicants to admissions over time does not necessarily reflect a quota.

Over a ten year period, Harvard’s racial percentages fell within a narrow range.  Harvard utilized one page summaries to illustrate the racial composition of classes.  

The court found that the number of admitted Asian applicants increased from 3.4% in 1980 to 20..6 in 2019 while applicants ranged from 4.1% in 1980 to 22.5% in 2014.  Without elaboration, the court concluded that this is inconsistent with a quota.  The court observed that the proportion of asian applicants to Asian admissions remained consistent over time.  

The court observed that stasis in the composition of classes reflects stasis in the pool of applicants.  Without more, the First Circuit found no error in the district court’s determination that neither quotas or balancing were in play in Harvard’s admissions procedures.  

The First Circuit found unobjectionable Harvard’s continuous monitoring of admissions as permissible in supporting its diversity goals without evidencing balancing or quota practices

The student advocacy group argued that Harvard applied race as a “mechanical plus” precluding individual considerations and permitting race as a decisive factor in admissions.

Where race can benefit any applicant and where race is individualized, mechanica arguments fail.  The court observed that racial diversity is not exclusive and has no more prominence than other diversity in Harvard’s contextualized admission practices.  The court found Harvard’s practices, which do not employ an impermissible fixed “points” practice, to be holistic with race, neither mechanical nor decisive.

The First Circuit upheld rejection of the argument that race was decisive because other racial groups were admitted in greater numbers than Asians of high academic achievement.  

The First Circuit noted that Supreme Court precedent has permitted racial impact greater than that evidenced by Harvar.  In one case, eliminating race as an admissions criteria would cause a 72.4% decrease in minority admissions, while in this case the change would be 45%, less than that permitted in the first case. 

The First Circuit stressed that race cannot be decisive for minimally qualified applicants but in this case race is not decisive for highly qualified applicants in a competitive process.  

The First Circuit rejected the perception of the United states government as amicus that Harvard considers race at every step of its admissions process.  The First Circuit rejected the United States’ premise that race may be considered only at only point in the admissions process and found that holistic considerations, including race, may be part of the admissions process throughout.  

Similarly, the First Circuit found unavailing the argument that the Supreme Court has found that race as a consideration must have a  stopping point because this exhortation was never mentioned in subsequent Supreme Court opinions.  

Precedent has never required universities to define an end point for the utilization of race as an admissions criteria and there is no error in Harvard’s not setting a ceiling on admissions.

Harvard’s having crafted, considered, and yet rejected as unworkable proffered alternatives to race in its admissions process does not mean that its evaluations were defective or inadequate.  

The First Circuit rejected the claim that Harvard impermissibly treated Asian students less favorably than others.

The presence of some subjectivity in admissions will not establish intentional discrimination, the First Circuit found, citing early discussion fo flexible admissions systems.  Any risk of subjective bias training the admissions process is mitigated by the requirement that admission cannot occur except through the vote of a majority of forty members of an admissions committee.  

The appellate court found unobjectionable the district court’s failure to find flawed as stereotypical references to Asians as “quiet,” “flat,” or other terms where such language was used concerning applicants from other groups. 

The court found no error in changes to admissions rating guidance to employees that race may not be considered an admissions rating criteria, nor was an increase in Asian admissions after the initiation of litigation as guidance is reviewed probative of discrimiation, as admissions guidance is reviewed and revised annually and Asan admissions have been increasing steadily over time.

Worries over inclusion or exclusion of personal ratings were dismissed by the court although the student advocacy group attempted to demonstrate that while inclusion of personal rating did not impact the likelihood of an Asian applicant’s admission the exclusion of this information would have a negative impact.

The essence of correlation between the rating and admission does not compel a finding of causation or ‘influence.’  

The district court did not err in considering several sources of evidence indicating that correlation but not causation was established.  The First Circuit upheld the district court’s conclusion that whether or not the personal rating is included in admission has no material effect, varies over time, and is not always negative.  

The district court opined that implicit bias was possible for unsupported and speculation about the explanation for significant variance in modes. The First Circuit found this exploration would not compel setting aside, as plain error, the conclusion that there was no intentional discrimination.  

Students for Fair Admissions v. Harvard College, No. 19-1-01A (1st Cir.) November 12, 2020

Faith in the Not So Hot Zone: Second Circuit Denies Synagogues and Churches Relief from New York’s Pandemic Measures

Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020)

Keep Your Shirt On! Wisconsin Students Successfully Argue that the First Amendment Protects Wearing Controversial T-Shirts in School


N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227; Lloyd v. Kaminski, No. 20-C-276 (E.D. Wis.) November 6, 2020.


Two Wisconsin students attending separate schools came to school wearing clothing advocating individual gun rights.  School authorities took action against the students for violating the schools’ dress codes.  One school rejected a parent’s attempt to provide an alternative t-shirt advocating patriotism.  

In 1969, the Supreme Court recognized that students have some protected expressive rights, the denial of which must be supported by evidence that the expression in question materially interferes with school functioning.  Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969). 

In this case the schools did not focus on disruption but argued that the shirts were not protected because no particularized message was conveyed and some messages were advertisements.

The students assert that even if the shirts were commercial they nonetheless merit First Amendment protections.

While clothing itself is not generally protected, the court has rejected the school’s view that a particular and recognizable message must be present for First Amendment protections to attach.  The court noted that while one shire did contain commercial elements, the message concerning the right to bear arms was clear.  The court also rejected the argument that the message was not clear because the messages themselves are what precipitated the school’s intervention.

The shirts are entitled to First Amendment protection, the court concluded, but not absolute protection. The dimensions of any proper time and place restrictions remain open for exploration, but judgement that constitutional protection is lacking is denied.  

N.J. ex rel. Jacob v. Sonnabend (E.D. Wis. 2020)

Creche Not Entirely Quashed: Stay Pending Appeal of Dispute about Public Christmas Display Denied, but County’s Conformity to Establishment Clause Need Not Preclude All Religious Elements


Woodring v. Jackson County, Indiana, No. 4:18-cv-00243 (S.D. Ind.)  November 3, 2020.


The federal trial court in Indiana has concluded that Jackson County is not likely to prevail on the merits of its defense as a public Christmas display focused on the birth of Jesus, surrounded by secular figures, cannot convey anything other than an endorsement of a religious view and have anything other than a religious purpose, given its undisputed Christian symbolism and its failure to serve any secular end.

Although the court concluded that no passerby suffered religious coercion by virtue of viewing the display, deficits in two prongs of the Seventh Circuit’s tests for Establishment Clause violations, the count could not demonstrate the likelihood of success on the merits needed to enter a stay pending appeal.

The court observed that the presentation of a public Nativity scene has not been precluded but rather that the county has been permitted to bring its presentation into conformity with the Establishment Clause.

Woodring v. Jackson Cnty. (S.D. Ind. 2020)

Life Online: Court Declines to Order Discovery of Litigant’s Internet Identities and Activities in Its Entirety


Lindke v. Freed, No. 20-10872 (S.D. Mich.) November 2, 2020.


Plaintiff sued the city manager of Port Huron, Michigan, asserting that deleting unfavorable or politically disadvantageous comments from the city manager’s Facebook page violates LIndke’s First Amendment rights.

The Second Circuit has concluded that public officials’ public social media accounts may not exclude opinion because of disagreement.  Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2nd Cir. 2020), petition for cert. Filed August 20, 2020 (20-197). 

Freed seeks discovery, broadly stated, of all plaintiff’s social media history and activity, which plaintiff argues is beyond the scope of the lawsuit.

Defendant objects to the idea that the discovery must be cabinned to the case:  the information sought is essential to establishing that plaintiff is a “cyberbully.”

The court recognized that discovery in support of a cyberbully defense could be had but not until Freed better articulates the nature of the defense he intends to present so that discovery can be reasonably related to the case and not overly broad or unduly burdensome.  

This is particularly important, the court pointed out, where states have adopted various definitions as components of “cyberbullying.”  The court noted that whether such activities qualify for First Amendment protections may remain open for exploration, as the range of definitions of “cyberbullying” vary from unprotected “true threats” to annoyance.  Michigan criminal law tends toward “true threats” but of interest concerning discovery is which definition Freed intends to advance.

In addition the issue of whether the plaintiff posted using multiple pseudonyms may be relevant but the discovery request remains too broad.  Freed may be able to seek information about plaintiff’s behavior on Freed’s site but not throughout the internet.  Postings and accounts unrelated to Freed are not discoverable, the court has concluded.

The court declined to enter  protective order limiting discovery to matters in the complaints as discovery is already limited in that way.  Further refinement at this time is not necessary, the court concluded, but the court left open the issue of whether an order would be appropriate in light of the defendant’s refinement of his defense. 

Lindke v. Freed (E.D. Mich. 2020) Order November 2, 2020

When Civil Rights and Tort Wrongs Collide: Supreme Court Directs Fifth Circuit to Seek State Court Guidance on Liability for Injury Incurred at Protest

McKesson v. Doe, No. 19-1108, 592 U.S. _____ (S. Ct.)  November 2, 2020.


During an event protesting a police shooting in Baton Rouge, Louisiana, protesters blocked the highway in front of police headquarters. One protester threw concrete or a rock at a police officer who was clearing the highway. Having lost teeth and suffered brain trauma, the officer sued the protest event organizer.

A federal trial court dismissed the case, finding that the First Amendment barred the action A divided Fifth Circuit revered, finding some possibility for recovery under Louisiana tort law.

The Fifth Circuit did not attach precedential value to a Supreme Court case establishing that there is no liability for speech related violence unless it was deliberately intended.

The Fifth Circuit did not find the First Amendment to be a ban to tort recovery. Where petitioner directed obstruction of a highway and if the attack on the police officer was a consequence of the petitioner’s activity, the potential for tort liability could be found.

The Fifth Circuits’ dissent denounced the result, observing that a new tort of “negligent protest” could not be squared with the First Amendment.

Rehearing en banc was not granted, its denial accompanied by multiple opinions.

Petitioner McKesson asked the Supreme Court to overturn the Fifth circuit because liability for violence during protected activity must be closely circumscribed. McKesson argued that his activity was protected even if it was a misdemeanor and he had no relationship to the protester who injured the officer.

The Supreme Court has concluded that the Fifth Circuit’s analysis cannot be supported unless state law would support the action. Certification of the novel tort law question to the Louisiana Supreme court prior to ruling on any Constitutional question would have been prudent.

The Supreme Court entered a “GVR” order, granting the petition for certiorari, vacating the first Circuit judgment, and remanding to the Fifth Circuit for further proceedings in accordance with the Supreme court’s opinion.

McKesson v. Doe, No. 19-1108 (S. Ct.) November 2, 2020

Court Cannot Hear Complaint Grounded in Fear of an Imagined Future


Baker v. USD 229 Blue Valley, et al., No. 20-3054 (10th Cir.)  November 3, 2020.


A parent who had been granted a religious exemption from otherwise mandatory vaccinations as a condition of public school enrollment cannot obtain relief based on an unsubstantiated possibility that the exemption would be revoked in the future or based on imagined future interference with schooling alternatives elsewhere.

Article III of the United States Constitution precludes courts from entertaining actions other than those that are concrete and involve actual injury. As appellate review has revealed that petitioner could not meet either standard, the federal district court’s dismissal of the complaint was proper.

Baker v. USD 229 Blue Valley (10th Cir. 2020)

Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

He Could Have Been a Contender: Attorney Challenges Delaware Constitutional Requirement that Courts Maintain Balance Between Two Major Political Parties


Carney v. Adams, No. 19-309 (S. Ct.)  Oral argument set for Monday, October 5, 2020 at 10:00 a.m.


The Supreme Court’s new term opens tomorrow, October 5, with oral argument concerning a Delaware attorney’s challenge to state constitutional requirements that judicial appointments for several courts be made with party affiliations in mind, such that courts are balanced, or if not balanced, such that only a ‘bare majority’ of one party holds power.

James Adams wishes to become a judge in Delaware but as an independent is frozen out because of the state’s two-party balancing requirements.   

The state asserts that as sovereign its constitution may provide for equitable apportionment among parties in judicial appointments without being overridden by the federal government.  The state also asserts that the Supreme Court’s decisions in anti-patronage disputes permit the course adopted by Delaware for judges are policy makers whose work necessitates party loyalty, unlike employees who do not make policy and who ought not fear termination because of any political party affiliation.  

The state argues that as a preliminary matter Adams cannot sue because he has not been injured by the Constitutional provisions.  He has not actively sought appointment and he cannot inflict injury upon himself in order to create an interest in challenging the judicial appointment provisions.  

Adams believes that he need not seek appointment with full knowledge that he would be rejected so that he can challenge Delaware’s constitution.  Delaware’s position that sovereignty precludes a challenge to its constitution must fail, Adams argues, because the constitution is depriving him of associational rights guaranteed by the First Amendment.   Moreover, there is little merit to the ‘policy maker’ argument, as the very thing that the anti-patronage cases rejected — loss of employment because of party affiliation — does not depend on whether an employee is high level or low level, but on whether party affiliation caused the harm in issue, his failure to be able to become a judge because he is not a partisan.

Delaware takes pride in having enshrined partisan balancing in its constitution.  Preeminent in the law of corporations, Delaware is invested in establishing and maintaining fairness in judicial appointments so that the credibility and reliability of its judiciary will be perceived to be sound.  Delaware argues that the state constitution serves this end and must be permitted to remain as it is.  

Adams insists that the preclusion from a coveted appointment is hardly the “light burden” on free speech that the state contends that it is, but rather creates an unconstitutional categorical exclusion of independent or third party judicial candidates.. 

Carney v. Adams No. 19-309 Brief of Petitioner John C. Carney, Governor of Delaware

Carney v. Adams, No. 19-309 Brief of Respondent James R. Adams

Carney v. Adams, No. 19-309 Reply Brief of Petitioner John C. Carney, Governor of Delaware



Note regarding oral argument.. As restrictions related to the COVID-19 virus remain in effect, and as the Supreme Court remains closed, argument will be conducted telephonically. Although modified to address public health concerns, guarantees of access to the courts have not been abandoned. Oral arguments will be available by livestream audio through C-Span: https://www.c-span.org/video/?469266-1/carney-v-adams-oral-argument

Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him. 

 

A Tangled Web Indeed: United States and General Flynn Submit Evidence Supporting Agreed Upon Motion for Dismissal


United States v. Michael T. Flynn, Crim. No. 17-232 (D.  D.C.).  Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.


Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.  

Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material.  General Flynn agreed. 

Ordinarily prosecutorial determinations not to proceed are granted.  In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements.  The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.

The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn. 

The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn.  Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.  

The collusion collision course:  the collusion, in the legal sense,  sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed.  Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page.  Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.

Just Lawful Prognostication:  The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.  

While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.  

Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.

U.S. v. Flynn Government’s Supplemental Filing in Support of Dismissal

U.S. v. Flynn Third Supp Supporting Agreed Upon Dismissal

U.S. v. Flynn 248-1 Strzok and Page Texts

U.S. v. Flynn, ECF 248-2 McCabe Handwritten Notes

U.S. v. Flynn, ECF 248-3 Strzok Handwritten Notes

U.S. v. Flynn, ECF 248-4 Strzok Handwritten Notes

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Between Friends: Judge’s Selected Amicus Urges Court to Refuse to Dismiss Case Against General Flynn and to Proceed to Sentencing

United States v. Flynn, No. 17-cv-232 (EGS).  Amicus Reply Brief Submitted September 11, 2020.  Oral argument scheduled for September 29, 2020. 

An amicus appointed by the federal judge assigned to proceedings brought by the United States against General Michael T. Flynn opened his reply brief by asserting that General Flynn’s “guilt is obvious.”  Although the government has moved to dismiss the proceedings and the general has concurred, the amicus opines that the government’s acts are simply not done, offering the conclusion that “clear evidence” indicates that the prosecutor’s motion to dismiss was precipitated by “a corrupt and politically motivated favor unworthy of our justice system.”  The amicus believes that the government seeks to reduce the Article III court to a “rubber stamp,” and that the court ought not permit itself to be “sullied” in this way.  Instead, because the D.C. Circuit Court of Appeals has held that Article III jurisdiction continues until the court has ruled on a prosecutor’s motion to dismiss, and because the court has discretion to inquire into wrongdoing which the amicus asserts has occurred, the court may deny dismissal and proceed to sentence General Flynn.

The court has requested that the parties to the case submit a joint status report with their recommendations for further proceedings, with a proposed briefing schedule and proposed dates for oral argument, not later than September 21, 2020.  

Amicus briefs submitted September 11, 2020 and June 10, 2020, without attachments:

U.S. v. Flynn Amicus Brief September 11, 2020

U.S. v. Flynn Amicus Brief June

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

Still Standing, Yet at a Standstill. Federal Court Lauds Attorney’s Efforts to Call to Account the Kentucky State Supreme Court and Bar Administrative Committee But Decides Federal Relief is Precluded as Either Speculative or Barred by Sovereign Immunity

Doe v. Supreme Court of Kentucky, et al., No. 3:19-cv-236 (JRW).  Memorandum and Order granting dismissal entered August 28, 2020.

Doe sought admission to practice law in Kentucky after having done so successfully in Florida for nine years.  During that time, Doe was diagnosed with a mental health condition.  She agreed to practice with a monitor and complied with clinical recommendations.

Kentucky made multiple inquiries about Doe’s condition, demanding all medical records, convening hearings, requiring over-reaching contractual obligations but finally, after nearly two years, relenting in its insistence on conflating a mental condition with a deficit of character. Doe was admitted to practice.

Doe promptly commenced suit against the state court and bar authorities for violations of the Americans with Disabilities Act, defamation, and for other wrongs she asserted were inflicted upon her in the course of her pursuit of a license to practice law.

The federal court hearing her case praised her diligence in pursuing her licensure as doing so conferred a benefit not just to her but to the profession and society in general.  Where it is known that attorneys suffer a disproportionately higher incidence of stress, depression, addiction and suicide than others in society, hounding and threats of disqualification by the state and the bar serve only to invite harm, the court observed, as those fearing loss or denial of licensure or the oppression of the state will not seek help, and where help is not sought, some will lose not only their cases but their lives

Nonetheless, the court determined that it could not grant Doe relief.  Prospective relief could not be awarded as it would be speculative.  Other relief requested by Doe, even though she had standing, could not be awarded in federal court because immunity principles forbade doing so.  

Doe v. Supreme Court of Ky. (W.D. Ky. 2020)

Private Property, Public Problems: Landlords Challenge Massachusetts’ Eviction Moratorium in Federal and State Proceedings

Baptiste, et al. v. Secretary of Housing and Economic Development, et al., No. 1:20-cv-11335 (MLW) (D. Mass.).  Oral argument on motions for preliminary injunctive relief and for dismissal or stay held September 2 and 3. 

Matorin and Smith v. Executive Office of Housing and Development, No. 2084CV01134 (Sup. Ct.).  Memorandum and Order on Motion for Preliminary Injunction entered August 26, 2020.


Massachusetts’ Eviction Moratorium. In response to the health and economic crisis precipitated by the COVID-19 virus, last spring the Massachusetts legislature enacted a law suspending processes of eviction and foreclosure.  Regulations governing this moratorium forbade many communications between landlord and tenant except as dictated by the state, including advising tenants in obtaining financial and legal aid.  

Originally intended to expire in mid-August, the moratorium has been extended into mid-October.  It is not known whether or for how long the suspension will remain in effect, but it may, potentially, extend up to a year beyond the culmination of the COVID-19 crisis.

The Massachusetts act prohibits initiation of eviction proceedings as well as processes in aid of those proceedings occurring at or after the time the legislation and regulations became effective.  Although it is specifically stated that the moratorium does not relieve tenants of the obligation to pay rent, in practice the measures have been interpreted to permit exactly that.

Landlords Respond. Small landlords have launched state and federal challenges, asserting that the state law and regulations unconstitutionally inhibit property owners’ access to the courts, violate First Amendment rights both by proscribing and prescribing speech, constitute physical and/or regulatory takings, and violate the Contracts Clause.

No injunctive relief in state court, but ruling on motion for injunctive relief in federal court promised for September 9th. Having lost their motion to enjoin the act in state court, this week two days of argument were had in federal court, at the close of which the court invited commentary on issues arising during proceedings.  The federal court has scheduled a hearing on September 9th and has promised a ruling on injunctive relief at that time.  

Private enterprises, not public agencies. Plaintiffs assert that the state has demanded that landlords have been conscripted, without consent and without compensation, to act as state housing authorities by providing free lodging indefinitely to individuals who have no right to be on the landlords’ properties.  Plaintiffs further assert that the moratorium decimates leases and other contracts.  The Commonwealth denies that the landlords face the hardships they described as the state has enacted only temporary measures, the impact of which may be less than landlords perceive.  

Only temporary. The state has responded to plaintiffs’ claims by asserting  immunity and by arguing that the moratorium is a valid exercise of the state’s plenary emergency powers for the general welfare, and that no rights have been deprived or infringed by its temporary measures.  The Commonwealth has argued that no taking has occurred, that there is no right to injunctive relief in takings cases.  

No end in sight. Just as there is no certainty concerning the duration of the eviction moratorium, so too is there no certainty concerning resolution of this litigation, which has attracted the attention of advocacy groups seeking to serve as amici.  

Post argument submissions. Plaintiffs have submitted two post-argument memoranda of law, the first addressing the proper standard of review for deprivations of rights of petition, arguing that scholars perceive that some rights are so fundamental that only strict scrutiny will suffice. 

The Commonwealth’s response is that there can be no deprivation of rights of access to the courts where, in the Commonwealth’s view, there is no underlying case for adjudication.  A temporary interruption of enforcement mechanisms during an emergency works no harm where those remedies will become available when the emergency is over. 

Plaintiffs observe that the emergency is all but over and that the successful implementation of social distancing and other recommendations make the state’s draconian prohibitions unnecessary now if ever they were.  

Plaintiffs point to Massachusetts precedent finding significant deprivations of rights of access to the courts to have occurred over a period of weeks, and that the indefinite nature of the moratorium only enhances deprivations already suffered.  

The Commonwealth has commented on the state’s favorable view of statutory and regulatory severability which would permit the court to excise any portion of the moratorium provisions found to be unconstitutional while leaving the remainder intact.

The Center for Disease Control Weighs In. Plaintiffs point to a newly promulgated federal prohibition on evictions as proof that the state’s measures are needlessly harsh.  The federal measure permits evictions while permitting tenants to avoid eviction by submission of proof of financial difficulty and/or ability to obtain new housing, thus demonstrating that the state’s perceived link between access to the courts and public health is ill-founded.  

Ruling on Motion for a Preliminary Injunction in Superior Court 

2020 08 26 Matorin-v-Commonwealth-of-Massachusetts-Decision-on-Preliminary-Injunction

Memoranda of Law Submitted in Federal Court

2020 07 15 Memorandum of Law in Support of Preliminary Injunction

2020 07 24 Memorandum of Law in Support of Dismissal or Stay

2020 07 25 Opposition to Motion for Preliminary Injunction

2020 09 03 Supplemental Memorandum in Opposition to Preliminary Injunction

2020 09 03 Supplemental Memorandum Addressing Newly Raised Issues

2020 09 03 Supplemental Memorandum Addressing CDC Order

Centers for Disease Control Order

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

Hardly Extraordinary: D.C. Circuit Reverses Course and Denies Mandamus, Returning Flynn Case to Trial Court for Inquiry into Government’s Motion to Dismiss


In re Michael T. Flynn, No. 20-5143 (D.C. Cir.) Order and Opinion Denying Emergency Petition for Mandamus entered August 31, 2020.


ICYMI:  Retired General Michael T. Flynn, having served in both the Obama and Trump administrations, was charged with making false statements to federal officers in connection with investigation of foreign involvement in the United States’ 2016 election and related matters.  Gen. Flynn twice entered guilty pleas yet later sought to withdraw those pleas, as exculpatory evidence became available and as the conduct of federal investigators came into question.

The Attorney General requested independent review of the matter subsequent to which the federal government moved to dismiss the charges against Gen. Flynn.  The trial judge retained as amicus a retired judge to aid in determining whether the matter ought to be dismissed, and even if the matter were to be dismissed, whether the trial court might independently hold Gen. Flynn in criminal contempt for perjury.  The court was committed to discerning the foundation for dismissing the case, which would include discovery of the prosecutorial process and hearings.

Gen. Flynn immediately petitioned for a writ a mandamus, which was initially granted.  The trial judge, having been requested by the court of appeals to respond, petitioned for en banc review.  

On Monday, the full complement of the D.C. Circuit Court of Appeals changed its initial position and denied mandamus relief.  Two judges dissented.

The per curiam opinion.  The majority of the panel concluded that mandamus was not appropriate where the trial court had not yet entered any order concerning the government’s motion to dismiss.  General Flynn could pursue appeal if any ruling were adverse to him, and as such, he had not made a showing that there existed no adequate means of redress.  The separation of powers arguments are speculative and, in the absence of concrete action on the motion to dismiss, cannot support extraordinary relief.  Moreover, the adversities the defendant complained about were not dissimilar from those visited upon other defendants, and unlike many others, the General remained at liberty.  

In addition, the panel majority found no reason to reassign the case to another judge.  The court’s commentary in the course of the proceedings was not unusual and without more cannot support reassignment.  Disqualification based on the trial judge having become a party in the mandamus proceedings could not be supported where the federal court of appeals determined to grant en banc review sua sponte.

Principles only, not politics.  D.C. Circuit Judge Griffith wrote a separate concurrence underscoring that the appellate court concerned itself only with the constitutional and jurisprudential questions presented notwithstanding any public commentary about political matters, including political appointments.

If not now, when?  Judges Henderson and Rao each wrote dissenting opinions and each supported the other’s views.

Circuit Judge Henderson affirmed her view that the initial In re Flynn mandamus ruling and order was correct, and worried that the standard set for reassignment by the panel majority is impossibly high, which will inhibit motions for disqualification that would otherwise be brought. 

The statutory standards for impartiality appear to have been diluted beyond any efficacy where the notion of “leave of court” with respect to prosecutorial motions to dismiss, heretofore liberally construed, now permits scheduling hearings and taking evidence to determine whether leave ought to be granted.  

Flynn’s petition for mandamus would limit the trial judge’s participation in the mandamus proceedings to that which the appellate court might invite, as with the request that the judge reply to the petition.  Rather than accept this limitation, the trial judge disregarded the order of the D.C. Circuit to dismiss the Flynn case and assumed the posture of a party to the litigation by demanding en banc review.  The majority of the panel appears to have sidestepped this concern by announcing that the court had determined that it would proceed to rehearing en banc sua sponte, notwithstanding that an order referenced the non-party judge’s request as the basis for its decision. 

Throughout these proceedings, the trial judge has behaved in a way that causes concerns about impartiality, the judge observed, in that the court offered its “disgust” and “disdain” for Gen. Flynn’s behavior.  The court’s selected amicus — in addition to inviting public participation as amici — was on public record supporting the denial of dismissal.  

Where a trial judge’s participate in mandamus proceedings is by invitation, the trial court’s retention of counsel and behavior as if the judge were a party indicated an opposition to dismissal before the fact.  That the trial court wanted to investigate whether the court itself could conclude that the defendant ought to be held in criminal contempt even if the case were dismissed is an indication that the court itself would pursue the defendant.  

Judge Rao noted that separation of powers principles undergird judicial deference to prosecutor’s motions to dismiss notwithstanding that “leave of court” is sought.  The proceedings envisioned by the trial judge are intended to discover the inner workings of the executive branch, which is not constitutionally appropriate.  Moreover, such an incursion is not necessary in light of the known shortfalls in the government’s conduct with General Flynn.

The contradictory positions assumed by the trial judge are troublesome.  Although the court issued detailed orders about the planned proceedings, counsel at argument before the circuit court stated that the trial judge may not make any findings as a result of the judicial inquest.  This negates the majority’s conclusion that the harm anticipated by petitioner Flynn is “speculative.”

The routine availability of appellate review as a basis for denial of mandamus relief would mean that there would be no extraordinary case warranting mandamus.  “Wishful waiting” is no shield against the harm that judicial involvement in the executive may cause here, particularly where Flynn’s liberty, which the executive no longer seeks to curtail, is threatened by the trial judge’s plan of action. (Slip opinion at 26.)

As ultimately dismissal must be granted and as the judiciary has no power to superintend the executive’s power to direct and to control prosecutions, any denial of dismissal by the trial court would mean mandamus would issue in accordance with precedent.  There is no need to withhold relief where the appellate court would do well to inhibit error. 

Moreover, in light of the known errors of the executive, there is much to be said for permitting self correction and little to be said for further proceedings with the harm that would ensue to petitioner Flynn.  Incarceration is not the benchmark for measuring losses already occasioned and those foreseeable if proceedings continue.

The morass created by this case may not be without instructive value, according to Judge Rao, who concluded:

This case highlights the essential connection between the Constitution’s structure of separated powers and the liberty interests of individuals. While modern administrative government often blurs the separation of powers, at least in criminal cases courts have steadfastly policed the separation of powers, ensuring that a criminal defendant may lose his liberty only upon action by all three branches of the government. By allowing the district court to scrutinize “the reasoning and motives” of the Department of Justice, En Banc Pet. 13 (quotation marks omitted), the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor. The Constitution’s separation of powers and its protections of individual liberty require a different result. I respectfully dissent. 

2020 08 31 Flynn Mandamus Per Curiam

2020 08 31 Order on Mandamus

2020 08 31 Order on Flynn Mandamus Petition En Banc

Cayuga Nation and Tribal Leader to Appeal Dismissal of Defamation Suit against “Billions” Creators and Showtime Network

Cayuga Nation and Clint Halftown v. Showtime Networks, Inc., Brian Koppelman, Andrew Ross Sorkin, and David Levien, No. 157902/2019 (N.Y. Sup. Ct.) Decision granting dismissal entered July 17, 2020.


The Cayuga Nation and tribal leader Clint Halftown sued the creators of Showtime Networks drama “Billions” in defamation, alleging that a female character sharing the same name as Halftown was shown to have engaged in illegal conduct.  The court noted that the Cayuga Nation, as sovereign, could not sue for defamation.  Rather than defamatory content, the fictional Jane Halftown was not shown to be engaged in criminal activity.  Moreover, the court concluded, there was no likelihood that the character in the show, which published a statement in the end credits noting its status as fiction, would be perceived to be the living Clint Halftown. 

To be defamatory, a statement must be “of and concerning” and individual and be recognized or reasonably be interpreted as such.  This is a question of law but where a work is fiction, a court must search for “similarities and dissimilarities” to see whether someone who know the plaintiff would know the plaintiff was being portrayed.  

Consideration might be given to similar name, physical characteristics, family, history, and activities, including recreational activities. 

As libel by fiction is counter-intuitive, requiring denial of defamatory material while asserting similarities with the fictional character, more than superficial similarities must be shown, such that one who knows the plaintiff would recognize the plaintiff in the fictional character.

This cannot be established where the real and fictional characters are, as here, of different genders, there is no history of the plaintiff’s involvement in land deals, and no engagement with novel voting methodologies.

That the real and fictional characters have the same last names and occupations is superficial. A viewer would not be misled, and the closing assertion that the show is fictional only underscored the show’s nature.  

Plaintiffs’ trade appropriation claim failed because the statute applies to persons, not sovereigns, and concerns advertising and trade, not fiction. 

Plaintiffs have appealed the order of dismissal in its entirety.  

157902_2019_Cayuga_Nation_et_al_v_Showtime et al Decision and Order

157902_2019 Cayuga Nation et al v. Showtime et al Notice of Appeal (2020)

Read more

Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

The House of God v. The House of the Rising Sun: Vigorous Dissents Accompany Supreme Court’s Denial of Injunctive Relief Where Nevada Church Alleges Pandemic Measures Restrict Churches More Than Casinos

Calvary Chapel Dayton Valley v. Sisolak, Governor of Nevada, No. 17A1070 (July 24, 2020).


A rural Nevada church asked the Supreme Court to enjoin state pandemic emergency measures that impose a flat numeric limit on church attendees while commercial entities such as casinos may operate at a percentage of capacity, permitting close contact for extended periods. 

The Supreme Court denied, without opinion, Calvary Chapel Dayton Valley’s request.  Four justices submitted three dissenting opinions. 

Justices Alito, Thomas and Kavanaugh would grant relief, given the inexplicable and unsupported discrepancy in treatment between secular and religious gatherings as well as the irreparable harm presumed to flow from deprivation of First Amendment rights.  

The justices observed that while “…a public health emergency does not give Governors and others carte blanche to disregard the Constitution for as long as the medical problem persists.”  (Alito dissent, p. 3.)  Particularly as time has passed since the emergency initially arose, and new information may permit revisions, the issue of exigency has diminished while the impact of discrimination against religion has continued unabated.  

The state’s actions fare no better under speech analysis.  While the state may posit that important viewpoints are advanced during permitted public protests, this overlooks the critical truth that the constitution does not permit preferring one viewpoint over another.

Justice Gorsuch wrote a separate dissent, offering his view that the Calvary Chapel case was “simple,” in that “…there is no world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.”  (Gorsuch dissent, p. 1.) 

Justice Kavanaugh wrote separately in dissent to emphasize that the state offered no plausible justification for its differential treatment of commercial activity and religious gatherings.  .  Justice Kavanaugh presented a primer addressing the nature and sources of religious disputes grounded in real or perceived differences in treatment of religion and other activities, and reviewing precedent addressing these cases.

Just Lawful Observes:  The concern with protracted state invocation of emergency powers permeates the dissent here, a concern that was not as apparent in May of this year, where the Court denied injunctive relief to a California church in a manner deferential to the state’s exercise of emergency powers to inhibit viral contagion during a pandemic.  South Bay United Pentacostal v. Newsom, Governor of California, No. 19a1044 (May 29, 2020). Although there were perceived differences between non-church and church activities, none were found to be inconsistent with the Free Exercise Clause. 

Calvary Chapel v. Sisolak, Governor of Nevada: Denial of Injunctive Relief and Dissenting Opinions. No. 19a1070 (July 24, 2020).

South Bay United Pentacostal v Newsom, Governor of California. No. 19a1044 (May 29, 2020).

 

 

 

Contraception Coverage Redux: Supreme Court Excepts Religious Entities from Certification to Exemption from Mandate

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431; Donald Trump v. Pennsylvania, No. 19-454 (July 8, 2020).


Justice Thomas wrote for the Court.  Interim final rules relating to the Affordable Care act of 2010 (“ACA”) require that contraceptives be covered in employer sponsored health care plans notwithstanding that the ACA legislation is silent on this point.   The mandatory preventive care provisions of the ACA do not define what preventive care must be covered, leaving it to the Department of Health and Human Services (HHS) to provide specifics.

The Departments of Health and Human Services, Labor, and the Treasury have promulgated exceptions from the contraceptive mandate.   HHS excused itself from the Administrative Procedures Act’s (“APA”) notice and comment provisions, notwithstanding concerns expressed by religious employers.  HHS crafted an exemption for churches and their integrated associates.  

Several years passed in crafting refinements and self-certification for exemptions.  Insurers could provide contraceptive benefits separately to employees of self-certifying exempt entities. Religious entities such as the plaintiffs here objected to this scheme as involving unwanted participation in the contraceptive mandate.  

The Little Sisters of the Poor Saints Peter and Paul Home (“Little Sisters”) argued — but courts disagreed — that exemption self-certification presented just the kind of undue burden on the free exercise of religion that the Religious Freedom Restoration Act (“RFRA”) was intended to protect.  Petitions for certiorari from several religious entities were remanded when parties appeared to agree that arrangements for separate provision of contraception could be fashioned so as to not require action by the religious groups, and that this would be a satisfactory result.

At the same time, other challenges to the contraceptive mandate were mounted.  Private employer Hobby Lobby Stores prevailed in an as-applied RFRA challenge, causing HHS to redraft its rules. 

HHS was initially unable to draft measures sufficient to satisfy religious objections while fulfilling the contraceptive mandate’s promise to employees.  After several years, HHS promulgated the rules in issue in this case, which expanded the definition of exempt employers, and which relieved employers from participation in the accommodation process, although that process remained available. 

A federal court issued a national injunction against HHS on the date the rules were to have taken effect.  Subsequent to Third Circuit review, the Supreme Court granted certiorari.

The Supreme Court, engaging in textual analysis, observed that the ACA conferred unbridled discretion on HHS to regulate required, or excluded, health care for women without defining what that care would include or exclude.  Where Congress could have limited this unfettered discretion but did not do so, the Supreme Court would not supply new additions to the statute.  Where no party raised an overbreadth challenge to the delegation, the Supreme Court would not disturb it.

Because the Court concluded that HHS’ discretion was conferred by Congress, the Court did not address whether RFRA compelled or authorized HHS’ action, but the Court noted that it was not improper for HHS to consider RFRA in fashioning regulations, particularly in light of the proceedings relating to to the contraceptive mandate. 

The Court concluded that HHS met the substance of notice requirements and had accepted comments.  The Court refused to require “open mindedness” of HHS, finding no basis for such a requirement in the APA.

Justice Alito, with Justice Gorsuch, concurred.  Justice Alito would extend the Court’s opinion to find that RFRA requires the exemption, thereby precluding arbitrary and capricious challenges on remand.  Justice Alito urged that the Court find finality in its present decision rather than requiring another round of remand. 

HHS’ Health Resources and Services Administration (HRSA) was given responsibility under ACA to determine what preventive services should be made available.  HRSA determined that contraception should be available, at first exempting only churches but later, following objections and litigation before the Supreme Court, expanding that exception and modifying procedures.

Justice Alito opined that RFRA applies to all government activity and as such, HRSA had to administer the contraceptive mandate in accordance with RFRA.  This is particularly so because the Supreme Court held in Hobby Lobby that the contraceptive mandate may substantially burden religion.  

Justice Alito did not think that Congress has fashioned contraceptive coverage in a way that suggests that Congress considered contraception to be a compelling interest, particularly as the question whether it ought to be provided at all was delegated to the administrative agency.  So many people and situations are exempted that it is difficult to perceive that a compelling interest in the provision of contraceptives exists.  The circular administrative exceptions themselves indicate that the mandate did not concern a compelling interest. 

The issue is whether there is a compelling need for coverage, not convenience.  Even if there were a compelling interest, the least restrictive means test must be satisfied.  Congress could create cost-free contraception if it wished without burdening the consciences of religious entities.  

Although the government must legislate using the least restrictive means to advance compelling interests, the government need not adhere to least restrictive means principles in creating accommodations.  The woman who works for an entity that exempts itself from the contraceptive mandate is not burdened by the employer’s exemption: “she is simply not the beneficiary of something that federal law does not provide.”  (Concurrence, Slip Op. at 18.)

Justice Kagan, with Justice Breyer, concurred in the judgment.  Justice Kagan agreed with the idea of authority to create exemptions but questioned whether reasoned decision making is in place, and notes that the lower courts can address this.  The conclusion that authority was present made it unnecessary to address whether any determination was arbitrary and capricious and that needs to be done.  Reasoned decision making is absent where the scope of the exemption does not fit the problem to be addressed.  The revised rule exempts those who might have no objection to the self-certification accommodation, and fails to protect employees’ access to contraception.  The extension of the exemption to publicly traded entities is questionable as it is difficult to locate conscience interests in such companies.  Why more in addition to religious exemptions were included is not clear, and RFRA does not cover “moral” objections. 

Justice Ginsburg, joined by Justice Sotomayor, dissented.  Justice Ginsburg laments what she perceives to be the Court’s abandonment of balancing beliefs so that no interests are overwhelmed, and fears that the Court has demolished the protections that the Women’s Health Amendment to the ACA, leaving “working women to fend for themselves…” (Dissent, Slip Op. at 2.)

Neither the Free Exercise Clause or FRFA required this result.  The Court has abandoned the accommodations intended to ensure that all interests and objections could be addressed.  Unlike the majority, Justice Ginsburg found no authorization for a blanket exemption in the ACA.  Where heretofore it was agreed that any religious exemption to the contraception mandate would preserve access to contraception, the exemption the Court now embraces places an undue burden on women.  Directing women to seek assistance from available government programs will only further cripple already overburdened programs.  

This process would force women to abandon known caregivers and if forced to pay out of pocket would likely cause women to pay for more expensive coverages.

Even if the self-certification process is sincerely believed to be unduly burdensome, that is not true as a matter of fact or law, as the government need not conduct itself in a way that comports with religious views.  Self-certification relieves religious employers of their objections to obligations and transfers the obligation to the insurer:  this both accommodates the religious employer and facilitates the government’s interest in women’s health care.

The obligation to provide contraception arises from the ACA, not from submission of self-certification of exemption based on religious objection.  A blanket exemption is nowhere consistent with any statute or regulation.  

Little Sisters of the Poor v. Pennsylvania No. 19-431 and Trump v. Pennsylvania No. 19-454 July 8, 2020

 

 

Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Nine Justices, Six Opinions: Giving Voice to Religion Clause Concerns in Addressing Montana Scholarship Case

Espinoza v. Montana Department of Revenue, No. 18-1195, 591 U.S. ____ (June 30, 2020).


That this case prompted the issuance of six opinions suggests there is no shortage of particularized views of the Religion Clauses among the justices.  At best, this can be a sign of healthy disagreement, but at worst, the judges’ divergences disclose an inability to reconcile themselves to the Constitution, to each other, or to both.


What Was In Issue.  Montana enacted a law permitting a modest tax credit for contributions to scholarship organizations which in turn made tuition awards to applicants’ schools, most of which were religiously affiliated private schools.  The Montana law demanded compliance with the provisions of the Montana constitution that forbids public aid to any institution controlled by any religious entity.  Montana Constitution Article X, Section 6(1).  Although disfavored by the state attorney general, the Montana tax authority promulgated an administrative regulation (“Rule 1”) to conform administration of the scholarship program to the state constitution’s ‘no-aid’ provision.  

Uncertain of their children’s scholarship status, parents sought and were granted relief from Rule 1 by a state trial court, which the Montana Supreme Court reversed in 2018.  


The Montana Supreme Court’s View. The state supreme court held that even in the absence of the tax rule, the state constitution prohibited aid to sectarian schools.  Unable to find a workable solution that would save the scholarship legislation without offending the state constitution, the court terminated the program in its entirety.  

The Montana justices agreed that the administrative rule was beyond the tax authority’s power to promulgate, but disagreed on the state and federal constitutional dimensions of the case.  One justice decried needless complexity in current Free Exercise jurisprudence, finding that the scholarship legislation was invalid under the state constitution’s ‘no aid’ provision.  Two justices thought the program acceptable and criticized the court’s invalidation of the legislation where no facial state constitutional challenge had been brought.  Another judge did not see the state constitution as prohibiting the scholarship program but expressed concern that the application of the state court constitution could offend the federal constitution.  


The United States Supreme Court’s Majority View.  In the first of six opinions offered by justices, the majority concluded that where general public programs are available to all, “all” cannot be construed to exclude participation based on religion. 

The majority observed that First Amendment jurisprudence must consider both what is permitted by the Establishment Clause and what is prohibited by the Free Exercise Clause.  Neutral programs that are available to all do not offend the Establishment Clause.  That is particularly so here, where citizens choose how to spend scholarship money.  The Free Exercise Clause forbids preclusion from any government benefit because of faith.  That preclusion is exactly what is in issue in this case.  Strict scrutiny analysis is in order where preclusion is based on religious status.  

This case is distinguishable from an earlier determination that a state could, based on history and tradition, preclude the use of state funds to pursue preparation for professional ministry.  The tradition that supported the prohibition on state funded training for the ministry is ot present in this case, as historic review discloses complexity in approaches. 

The state’s argument that it may act to provide a greater separation between church and state under the state constitution than that provided by the deferral constitution fails because an interest that offends the Free Exercise Clause cannot be compelling.  

Freedom of religion is not advanced by infringing on First Amendment rights, and this is particularly so where choice in whether to access religious education — or not — is denied.  A state might reasonably determine no to engage itself in providing funding to private education, but if a state determines that it will fund private education, it cannot then preclude religious schools from participating.

The majority dispensed with the argument that there can be no free exercise violation where the program in issue is defunct.  The program was a legislative creation invalidated by a court as a remedial measure where no other could be found.  Central to the state supreme court’s determination is its refusal to recognize that the state ‘no aid’ provision violated the federal Free Exercise Clause.  There is no basis upon which to argue that there exists some neutral policy choice or independent state law basis for the state court decision, as its failure to consider the Free Exercise Clause violates the Supremacy Clause. 


Justice Thomas, joined by Justice Gorsuch, issued a separate concurrence.  Justice Thomas decries the “brooding omnipresence” of current Establishment Clause jurisprudence, which dictates that all religions must be treated equally and religion must be treated as equal to non-religion.  The Establishment Clause was intended to inhibit the imposition of any religion by the federal government upon the states.  It is not clear whether the establishment clause was seen as an individual right at the time the Fourteenth Amendment was ratified, but even if it was, incorporation would be limited to establishment as it was considered by the founding fathers.

What was understood at the founding was that federal law could not coerce religious orthodoxy and financial support.

The notion that states must be antiseptic respecting religion has no basis in history. Expansive applications of the Establishment Clause cripples the application of the Free Exercise Clause. Ultimately rigid constructions of the religion clauses act as content based restrictions on the government.  Hostility toward religion, or a “trendy disdain” for religion which has given rise to “offended observer” claims, has distorted the proper meanings of the religion clauses.  Preferencing some constitutional rights over others must be reconsidered so as to permit the free exercise of religion to thrive. 


Justice Alito concurred separately.  Apparently somewhat sore because his view that origins considerations cannot always be controlling failed to prevail in Ramos v. Louisiana, 591 U.S. ___ (2020), Justice Alito seized the opportunity presented by Espinoza to note that the application of the “original motivation” view espoused in Ramos would be fatal to any effort to uphold the ‘no-aid’ provision in issue here.  Justice Alito has published a detailed history of historical antipathy toward religion in the United States, with particular contempt toward Catholicism, which was perceived as threatening to public education, and which gave rise to the sorts of ‘no aid’ provisions enacted and later re-adopted by Montana.  


Justice Gorsuch concurred separately.  Justice Gorsuch wrote to express his view that confining considerations of impingement on religious freedoms ought not be limited to religious status, for religious belief is almost always accompanied by religious behavior, which is also worthy of constitutional protection.


Justice Ginsburg, joined by Justice Kagan, offered a dissenting opinion.  Justice Ginsburg has opined that there can be no Free Exercise Clause violation where the Montana scholarship legislation has been struck down.  The majority’s intimation that the Montana ‘no aid’ provision is itself unconstitutional lacks grounding in federalism principles.  There was no facial challenge before the court making any opinion from the Supreme Court on that issue improper.  

Dismantling the scholarship program worked no injustice on the parents seeking religiously affiliated education for their children, Justice Ginsburg stated, for it left all families on the same footing.  Where all are now without state support for any private education, no discrimination exists.


Justice Breyer dissented, joined in part by Justice Kagan.  Justice Breyer has advocated for comprehensive, case by case considerations of religion clause matters, finding the crafting and application of tests ill suited to develop a sound jurisprudence.  So doing would require more effort, but in his view there is no substitute for sound judgment, which to be informed must consider all that is before the court and all that is implicated by its decision.


Justice Sotomayor wrote a separate dissent.  The Court has committed compound errors, in Justice Sotomayor’s view, as it has answered the wrong question incorrectly.  Once the Montana Supreme Court invalidated the scholarship program, there was no federal Free Exercise Clause question for the Court to decide.  There can be no question of disparate treatment where the purported source of that disparity no longer exists.  The Court has issued a decision intimating facial invalidity when that issue was at no point before the Court.  In so doing, the Court has exceeded its Article III powers and violated federalism principles.  

18-1195 Espinoza v. Montana Dept. of Revenue (06_30_2020)

 

You Cannot Take It With You: First Amendment Speech Protections Do Not Reach U.S. Entities’ Foreign Affiliates

Agency for International Development, et al. v. Alliance for Open Society International, et al., No. 19-177 (June 29, 2020).


Justice Kavanaugh delivered the opinion of the Court.  In 2003, the United States determined that certain recipients of federal funding for international public health initiatives must have an express policy opposing prostitution and sex trafficking. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act. 117 Stat. 711, as amended, 22 U. S. C. §7601 et seq.  

In 2013, the Supreme Court agreed with the Alliance for Open Society International (AOSI) that the Policy Requirement, as it came to be known, imposed an unconstitutional condition on AOSI’s First Amendment rights.  

The Policy Requirement remained in effect against AOSI’s separate foreign affiliates, resulting in the present challenge.

The Court acknowledged that foreign citizens in the United States may enjoy some constitutional protections.  The U.S. Constitution may also apply in U.S. territories or places wholly controlled by the U.S. government.  The U.S. may enact legislation granting rights against the U.S. abroad or giving U.S. citizens abroad certain rights, but the government is generally otherwise constrained against attempting to affect activities abroad.

The law traditionally holds that separate corporations have separate rights and responsibilities.  The separate corporations in issue here were incorporated outside the U.S. and, although affiliated, are distinct from the U.S. corporations.  

The Court held that the United States, which. provides more foreign aid than any nation on earth,  may do so by applying conditions such as those in issue here mandating that aid recipients as a matter of policy condemn sex trafficking and prostition.  

Foreign corporations operating abroad enjoy no First Amendment rights.  

In light of both principles, the plaintiffs cannot complain of constitutional error in requiring the Policy Statement of foreign entities. 

Arguments about speech misattribution fail because the cases cited by plaintiffs concern forced affiliations, whie the choice of affiliations here are wholly voluntary.  Plaintiffs are free to affiliate as they please and they may disclaim support for the policy statements that their foreign affiliates must make.

Justice Thomas concurred to restate his discontent with the “forced speech” holding of the 2013 case.  Justice Thomas observed that the Constitution does not compel a viewpoint neutral government nor does conditioning funds tied to affirmations of a belief involve compulsion where entities are free to decide not to apply for or participate in federal funding.  The First Amendment does not protect the conditions in issue at all, without reference to the domestic or international status of the corporation or its affiliates.

Justices Breyer, Ginsburg and Sotomayor dissented, asserting that the First Amendment rights of the U.S. entities and not the foreign corporations are in issue.  By asking the wrong question, they observe, the Court arrives at the wrong answer

Where close affiliates are concerned, answers to questions of compelled speech ought not be distinguished based on whether the affiliated entities are domestic or foreign.  If the government demands speech contrary to the speaker’s message, the mechanism for so doing cannot cure the constitutional infirmity.

The aim of the domestic corporations is to speak abroad. From a structural standpoint, It ought not matter how this is accomplished.  Moreover, the impact of the present decision on U.S. media abroad cannot be disregarded.

The issue of the territorial reach of the U.S. Constitution is of no moment because exploration of the issue comes in response to the wrong question. The speech rights of domestic corporations with respect to closely identified foreign affiliates, not the foreign affiliates in themselves, are in issue.  Additionally, the idea that separate corporations are inviolably so is contrary to law, which can and does at times disregard corporate forms and recognize close corporate relationships.  

U.S. A.I.D. v. Alliance for Open Society No.19-177 S.Ct. June 29 2020

Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).


Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020

 

 

Case Dismissed! Federal Court of Appeals Orders D.C. Federal District Court to Grant United States’ Motion to Dismiss Criminal Case Subsequent to Plea Agreement Admitting False Statements to Federal Bureau of Investigation

In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.


General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources.  General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress.  Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.

The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.

General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part.   The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge.  In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.


The D.C. Circuit  opined that dismissals of criminal matters rest soundly with prosecutorial discretion.  Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment.   United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).

The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted.  General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.

Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch.  It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions.  Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.

Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.

The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.”  (Slip. Op. at 14.)

Dismissal cannot turn on what a judge independently thinks in in the public interest.  A court should not second guess except in an extreme case:  extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with  Article III powers.

The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.

Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand.  The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all.  The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.

The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue.  Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.”  (Slip Op. Dissent at p. 3, Part B).

The dissent expressed fear that the majority has read the public interest out of Rule 48.  The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.

The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.

Prosecutorial discretion cannot be made into an impenetrable shield.  The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.

This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.”  (Slip. Op. Dissent at p. 17).

2020 06 24 Opinion In re Michael T. Flynn

2020 06 24 Order in re Michael T. Flynn

 

 

 

 

 

 

 

 

The Tale of the Tell All: Federal District Court Refuses to Enjoin Publication Said to Contain Sensitive National Security Information


United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.


Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.

Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23.  Excerpts are currently available online.

The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances.  The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.

The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.

The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met.  To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.

Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.

The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred.   Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.

The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.

While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits:  “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.”  (June 20th Order, Docket No. 27, at p. 6.)

The court recited potential costs if Bolton loses on the merits are not insignificant:  loss of profits, exposure to criminal liability, and harm to national security.

Justlawful observation:  A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order.  Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.

This is not to say that the government wears a ten-gallon white hat in this case.  The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position.  Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern.  Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.

Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.”  (June 20th Order, Docket No. 27, at p. 6).  It is in this that the government’s extension of the review process may stand on firmer ground.

United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020

 

 

 

 

 

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

A Few Tweets Does Not Jurisdiction Confer: Court Concludes Tweets Posted Outside Kentucky Concerning Kentucky Residents Insufficient Premise for Exercise of Personal Jurisdiction

Blessing, et al. v. Chandrasekhar, No. 20-5850 (6th Cir. 2021).


Defendants’ Tweets about about plaintiff’s activities in Washington, DC at a pro-life rally in January, 2019, reached the plaintiffs in their state of residence, Kentucky.  The Sixth Circuit Court of Appeals has concluded that this “receipt” of the Tweets,  without more, provides an insufficient premise for the assertion of personal jurisdiction over defendants.  Something more than an online post must be involved for a court to conclude that defendants had contacts with a forum state sufficient to support personal jurisdiction.  

Blessing v Chandrasekhar, No. 20-5850 (6th Cir 2021).

JustLawful Observation: One would think that after a quarter century of ubiquitous internet activity that judicial guidance concerning jurisdiction would by now be defined adequately, if not comprehensively.  This is not the case, and particularly so when considering the incorporeal world of online activity.  Although the U.S. Supreme Court has decided that jurisdiction may be asserted for sales tax purposes where purchases are made (to the distress of many), questions concerning assertion of jurisdiction over non-U.S. entities or intellectual property remain.  

Daniel Canedo, Plus or Minus America: Spanski, Geoblocking Technology, and Personal Jurisdiction Analysis for Nonresident Defendants, 31 Fordham Intell. Prop. Media & Ent. L.J. 339 (2021). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss2/1

Jesse Lake, Hey, You Stole My Avatar!: Virtual Reality and Its Risks to Identity Protection, 69 Emory L. J. 833 (2020). Available at: https://scholarlycommons.law.emory.edu/elj/vol69/iss4/5

Hayes R. Holderness, Navigating 21st Century Tax Jurisdiction, 79 Md. L. Rev. 1 (2019) Available at: https://digitalcommons.law.umaryland.edu/mlr/vol79/iss1/2

Niesel, Zoe (2019) “#PersonalJurisdiction: A New Age of Internet Contacts,” Indiana Law Journal: Vol. 94 : Iss. 1 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol94/iss1/3