Posted on by justlawfulblog

New York Court of Appeals Reverses Convictions of Former Media Mogul Harvey Weinstein

People v. Harvey Weinstein, No. 24 (N.Y.) April 25, 2024 Opinion and order reversing convictions and ordering a new trial issued April 25, 2024.

Today the Court of Appeals for the State of New York reversed convictions of sexual assault entered against former media mogul Harvey Weinstein and ordered that a new trial be had.

 

The appellate court relied on two trial court errors which by their synergistic effect combined to deny Weinstein of his constitutional right to a fair trial.  

 

First, the court found that the introduction of non-complainant witness testimony against Weinstein violated established law concerning evidence of ‘propensity’ to commit crimes.  The evidence proffered and introduced did not advance any point for which exceptions to exclusion of prior acts are permitted. The error of this admission would not withstand ‘harmless error’ analysis which, if found, would salvage the convictions against Weinstein and obviate the necessity of a new trial. 

 

Second, in addition to error in admitting the non-complainant witness testimony, the appellate court found error in the trial court’s determination that such non-complainant witness testimony could be used to impeach Weinstein. This, the appellate court held,  made it impossible for Weinstein to testify on his own behalf, a grave deprivation of his constitutionally guaranteed fair trial rights.  

 

The appellate justices opined that it is not impossible to harmonize established law, including the law of evidence, with concern for the particular difficulties in establishing sexual crimes. 

 

One  justice offered an impassioned dissent stating that the decision, in overlooking much of the literature concerning sexual assault, represents regression to a time when presenting allegations of sexual assault imposed debilitating and intimidating risks to a complainant.  

 

A second dissenting justice observed that the perceived interplay between the admission of non-complainant witness testimony and the availability of such testimony for purposes of impeachment was in error.  Admissibility for substance and availability for impeachment are not the same, the dissent stated, and as all defendants who chose to testify are subject to cross examination about the past, the court erred in concluding that the defendant suffered a loss of fair trial rights. 

 

Posted on by justlawfulblog

Mendacity! Georgia Judge Finds District Attorney’s Conduct Malodorous but Stops Short of Disqualification

State of Georgia v. Trump, et al., Indictment No. 23SC188947 (Sup. Ct.). Order re. Motion to Dismiss and Disqualify Fulton County District Attorney, March 15, 2024.

Last January, one of the several associates of former president Donald Trump, who now faces criminal charges in Georgia, filed a motion to Dismiss the indictment against him and to disqualify District Attorney Fani Willis because of her involvement with a special prosecutor who she selected, supervised, and paid, while at the same time engaging in a romantic relationship with him said to confer a financial benefit.

The financial benefit allegation stemmed from the several cruises and vacations taken by the District Attorney (“DA”) and the Special Assistant District Attorney, Nathan Wade, which were said to have been paid for by Wade from monies derived from the compensation Willis provided, thereby providing her with a benefit derived from his employment. Willis refuted this allegation by testifying in court that she repaid Wade in cash, thereby negating any financial benefit.

The court was unable to conclude that the evidence presented was sufficient to support a direct conflict of interest mandating disqualification, but the court did find that her behavior created an appearance of impropriety demanding remediation before proceedings could continue. The court concluded that either Willis and her office needed to resign from the case or that Wade needed to resign from the case. Wade resigned within hours of the publication of the opinion.

Several strategic decisions await determination by counsel, including not only whether to appeal from this disqualification motion but also whether to challenge the dismissal of many, but not all, of the counts of the indictments against the former president and his associates.

Although not central to the court’s decision, the judge criticized Willis’ behavior as a witness. The judge found the discrepancies between Wade’s statements in divorce proceedings and in this case to be of concern. The court jettisoned the testimony of former Wade attorney and law partner Terrance Bradley, as at the hearing Bradley asserted he could not recall statements made weeks prior to the hearing, many of which were reduced to writing as text messages.

The court pointed to statements made by Willis to her faith congregation concerning this case, in which she asserted that some were “playing the race card.” The court found that this out of court statement against unnamed individuals could create an atmosphere of racism within the proceedings, which in turn could be damaging to the moving defendant.

The court reiterated that a prosecutor is not his or her own person. Having assumed the duties of criminal prosecution, a district attorney must act on behalf of the state and its people and refrain from any conduct detrimental to a particular case or to the administration of justice overall.

While the prosecution has been duly chastened, and remediation required, it may nonetheless be that the “odor of mendacity” the court has perceived will be easily dissipated from the atmosphere surrounding this proceeding.

georgia-v.-trump-order-re.-disqualification-3Download

Justlawful observes: it is difficult to believe that the court chose the infrequently used term for lying, i.e., “mendacity,” without deliberately alluding to its use in Tennessee Williams’ Cat on a Hot Tin Roof, in which lying and the costs of so doing informed and inflamed familial relationships.

Posted on by justlawfulblog

Fifth Circuit Just Says No to Dissolving Injunction Against Texas Plan Requiring Booksellers to Label Sexual Content of Books Sold to Schools or Forfeit Business with State

Book People, Inc., et al. v. Commissioner of the Texas Education Agency, et al., No. 23-50668 (5th Cir.). Opinion affirming injunctive relief issued January 17, 2024.  

Concern that schools were providing students access to books containing age or otherwise inappropriate sexual content prompted Texas to enact legislation compelling booksellers to categorize the sexual content of books sold to the schools or else be barred from transacting business with the state.

Booksellers were charged with the task of reviewing all books sold to state schools in order to label them as sexually explicit, or sexually relevant, or not to be labelled at all. The legislation permitted the state to demand reclassifications. Results would be published online.

Failure to comply would cause the non-compliant bookseller to be banned from selling to the state.

Booksellers, along with a trade association and a civil liberties advocacy group sought and obtained, on First Amendment grounds, an injunction precluding enforcement of the legislation.

The Fifth Circuit recently upheld the injunction, noting that Texas –ostensibly having outsourced unconstitutional content based speech restrictions — could not complain that the booksellers lacked standing because intermediaries carried out the state’s mandates.

The appellate court observed that the booksellers were in a classic compelled speech scenario: either the booksellers would speak in accordance with the state’s demands, or face penalties in the form of loss of revenues resulting from state restrictions imposed for booksellers’ non-compliance.

The legislative scheme could not survive scrutiny by characterizing the review and classification as “state speech,” as the booksellers’ acts required discernment and decision-making. Moreover, the exercise of discretion by the booksellers could not be seen as ministerial activity.

Book People, Inc., et al. v. Commissioner of the Texas Education Agency, No. 23-506688 (5th Cir.) Opinion re. Injunctive Relief, January 17, 2024

Posted on by justlawfulblog

Physicians Launch Constitutional Challenge to State Licensure Requirements Said to Impede Telehealth

Shannon MacDonald, M.D., et al. v. New Jersey State Board of Medical Examiners, No. 3:23-cv-23044 (N.J.) Complaint for Declaratory and Injunctive Relief filed December 13, 2023.

Technological advances in medicine have made access to care online through telehealth services available and desirable, particularly in cases where patients’ conditions require expertise that is not available where the patient lives. 

Telehealth, or telemedicine, permits patients and physicians to confer online without respect to geographic limitations. Such services have been available for some time, but demand for telehealth practice can fairly be said to have expanded – if not exploded — during the forced confinement imposed by federal and state Covid-19 pandemic policies. 

During the pandemic, laws and regulations were relaxed so that health care services, including telehealth, could be delivered without the necessity of licensure within each state where services were rendered. 

With emergency provisions ended, the demand for telehealth services, particularly for specialized medical care, has remained high.

Currently a physician who wishes to consult with a client residing outside the geographic area where the physician is licensed must obtain licensure in the state where care is delivered, an expensive process requiring months of review. 

Criminal punishment attaches to violations of licensure laws. Fines run in the tens of thousands of dollars. Loss of authority to practice medicine may result, and with it would likely come loss of professional and social standing.

A parent who seeks life-saving care for a child cannot obtain consultation where licensure barriers prohibit doctors from delivering that care.

Moreover, it is not possible for specialists to predict with accuracy where requests for consultation may originate. Diligence in seeking licensure in multiple jurisdictions is to no avail given that no care may be demanded in such states, while care may be sought in another location where licensure is absent.

Plaintiff physicians in this case, with their patients, object to state preclusion of access to telehealth care.

The doctors and patients allege that the state imposition of licensure requirements for out-of-state physicians violate the U.S. Constitution in several ways.

First, the requirements offend the Dormant Commerce Clause by imposing undue and unjustified burdens on the delivery of care across state lines. U.S. Constitution, Article I, § 8, cl. 3. The somewhat awkward categorization of the “dormant” commerce clause refers to an inference to be drawn from the Commerce Clause itself. ”Dormant” means here that issues can arise under the Commerce Clause without specific federal action.

Second, because the Privileges and Immunities Clause of the U.S. Constitution, Article IV, § 2, cl. 1 demands that the citizens of one state must be permitted to enjoy the privileges and immunities conferred upon them in all other states, the prohibition of use of licensure already in existence through state law offends the Privileges and Immunities Clause.

Third, the telehealth prohibitions offend the First Amendment of the U.S. Constitution. The state licensure regulations restrain speech by parents, patients, and physicians because of content of that speech. Moreover, physician speech is precluded by virtue of their licensure status. 

Fourth, state preclusion of access to telehealth care offends the due process provisions of the equal protection clause of the Fourteenth of Amendment of the U.S. Constitution, as parents cannot exercise their parental rights — including the right to seek and to obtain medical treatment — because of the state restrictions, and parents have no access to timely and complete review of the denial of access to care.

Plaintiffs seek a declaration that New Jersey law violates their rights under the U.S. Constitution and an order enjoining the state from interfering with delivery of telehealth care within the state.

No defense has been submitted to the federal court in New Jersey at this time. The New Jersey Attorney General has sought and obtained an extension of time until February 16, 2024 to respond to the complaint.

MacDonald-M.D.-et-al.-v.-President, N.J. Bd. Medical Examiners, 23-cv-23044 (D. N.J.) Complaint

Constitution of the United States (National Archives)

Amendments 1-10 of the U.S. Constitution (Bill of Rights) (National Archives)

Amendment 14 to the U.S. Constitution (National Archives)

 

Posted on by justlawfulblog

To be carefully taught:  Penn State teacher squared off with school on racial issues, resigned and filed suit, which recently narrowly escaped dismissal

Zack K. de Piero v. Pennsylvania State University, et al., No. 23-2281 (E.D. Pa.) Memorandum Opinion issued January 11, 2024

Zack de Piero, Ph.D., taught writing at Pennsylvania State University (Penn State), Abington campus, between 2018 and 2022. 

De Piero sensed his teaching experience was unlawfully infected with animus because of his immutable characteristics of being white and male. Subsequent to his resignation, he sued his former employer and school officials in federal court, seeking redress pursuant to several civil rights statutes.  

All but one of his claims was dismissed on January 11. 

His sole surviving predicate for relief is a “hostile work environment” claim. 

A “hostile work environment” theory will require plaintiff de Piero to show he was subjected to intentional discrimination because of his protected status, that the discrimination detrimentally affected him, that a reasonable person in his circumstances would be detrimentally affected, and that liability may be imposed on employers for the acts of their employees. 

As the January 11th opinion discussed, evidence supporting that a plaintiff has been subjected to a hostile work environment requires evidence that discriminatory conduct was either severe or pervasive. Severe harassment can contaminate a working environment even if not pervasive, but less than severe harassment may support a claim only if sufficiently pervasive.  Slip op. 12- 13.

Accepting de Piero’s factual allegations as true for purposes of evaluating the viability of his claims, the court concluded that “taken together, these allegations plausibly amount to “pervasive” harassment that, at least on a motion to dismiss, passes muster.”  Slip. op. 15.

Racial essentialism and determinism controlled the conversation at mandatory trainings and conferences, de Piero has alleged.  In the course of such events, de Piero asserts that negative traits were attributed to white people solely because of their status as white people.  Slip op. 14. 

On one occasion, a presenter initiated a breathing exercise in which white and non-black people were asked to hold their breath longer than others to induce in the white and non-black participants “the pain” of George Floyd, who died while being taken into police custody.  Slip. op. 13

On another occasions, discussion of racially offensive commended fetautre only white commenters. Slip op. 14-15.

Another presenter at another occasion, included a facilitator’s condemnation of attendees who spoke or were present, because they were white.  Condemnation included disparagement  of ‘white elites’ and ‘white self-interest.’  Slip op. 14-15. 

“Race-conscious grading” was demanded of teachers during anti-racism training.  At another training, de Piero has claimed, white people were accused of reproducing racist discourse and practices in the classroom “unwittingly”.  Slip op. 15. 

Email proffered by de Piero disclosed a Penn State defendant opined that opposition to mask wearing for the Covid-19 pandemic would be led by white males. Slip op. 3, 15.  Another official’s email instructed white employees to “feel terrible” because of  their “own internalized white supremacy,” and called upon white persons to chasten other white persons accordingly.  Slip op. 3.

Other messaging, according to de Piero, urged that students be made aware that white supremacy is present in language and in writing pedagogy.  Slip op. 15.

De Piero was urged to watch a video called “White Teachers are a Problem.”  Slip op. 15 

De Piero states that the response to his presentation of his concerns was an official’s statement that “[t]here is a problem with the white race.” He was told to continue to attend trainings and workshops until this became clear.  Slip op. 15. 

The federal judge concluded that if these incidents were established as true and the other elements of a hostile environment claim were also established, de Piero could present a cognizable claim, as all in all, the several incidents could be sufficient to meet the “pervasive” element of a hostile work environment claim.  Slip op. 15-16. 

The court took care to iterate that federal law does not preclude discussion of racism nor should a workplace be required to maintain race blindness overall. No error can be found, the court offered, in providing training on white privilege, white fragility, implicit bias or critical race theory, no in focusing on issues arising after the death of George Floyd.  Slip op. 16.  

That said, the judge cautioned that the manner in which workplace conversations proceed merit attention: “When employers talk about race—any race—with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.” (Citation omitted.)  Slip op. 16-17. 

Thus it appears, at least to the federal judge hearing the de Piero case,  that the time worn adage that it is not what is said, but how it is said, still holds true.  

It is impossible to predict the final outcome of this case.  Nonetheless, some may believe that the case may already be seen to be educational. 

De Piero v. Pennsylvania State, 23cv2281 (E.D. Pa.) Memorandum Opinion 1.1.24

 

Posted on by justlawfulblog

An Accuracy Epiphany: Use of Open Source Artificial Intelligence Irritates Justices

United States v. Cohen, No. 18-602-JMF (S.D.N.Y.) Order to show cause concerning fictive case citations entered December 12, 2023.

Recent headlines directed attention to proceedings involving former President Trump’s former counsel Michael Cohen. Through counsel, Cohen, seeks to end further restrictions concerning his conviction.

In so doing, however, the judge hearing Cohen’s plea discovered that the cases cited in his submission to the court do not exist at all. Quite understandably, this vexed the court in no small way, resulting in a directive to counsel to explain what caused these errors or face sanctions.

Cohen’s Counsel, through Cohen’s Counsel’s counsel, Cohen’s former counsel, Cohen, and a software entity each submitted their views of what happened. This highly granular correspondence with the court provided some insight into events as they unfolded, mixing bonhomie and backstabbing in equal measure.

To make short work of this unfortunate series of events. Cohen’s counsel shared a draft memorandum for the court with Cohen, who in turn shared the draft with Cohen’s former counsel, who made suggestions which were thereafter adopted, and Cohen in turn provided Cohen’s then-current counsel with citations that Cohen believed would ably substantiate his case, which Cohen’s counsel adopted in the memorandum submitted to the court.

This would seem to illustrate productive effort among counsels and client except that on discovery that the citations were false, everything fell apart.

Cohen disclosed that he used an artificial intelligence source to obtain the citations, which were wildly incorrect.

Cohen’s counsel admitted that he did not check what Cohen had provided and has humbly apologized to the court. Cohen’s former counsel has objected to Cohen’s counsel’s framing of ethical reasons for departing from attorney-client confidentiality but otherwise has suggested that the court might tread lightly with respect to its treatment of Cohen’s counsel.

An entity specializing in artificial intelligence offered its views to the court, noting that court’s everywhere are grappling with the newly ubiquitously available artificial intelligence technology, suggesting that AI is continuously improving by leaps and bounds, even as courts across the country have issued standing or case-specific orders concerning the use of AI in legal research or in other aspects of submissions to courts.

The software provider’s views, painting a rosy picture of the future, would be wonderful were the future only right at the doorstep.

Yet the real issue is that, courts being courts of convention in the administration of law, expect all who come before the court to rely on routinized, standardized, and reliable resources for legal research. There are two major providers of such research and several less prominent, but useful, resources. 

Artificial intelligence research resources fall into neither category.

Yet AI is here and there exists a significant issue with respect to its use apart from its accuracy, which all can now perceive leaves something to be desired in its current iteration.

Commercial legal research software is not inexpensive. An ordinary person would likely find its costs beyond reach, making preparing submission for a court difficult. The capacity to conduct research free of charge through AI resources might go far to enhance litigants’ ability to seek redress in the courts. 

It might be hoped that further developments will refine the resources which in turn might further open access to the courts.

This is not the case as yet. 

Until then — and even after then — counsel everywhere would not be unwise in seeking out legal and ethical literacy with respect to the use of artificial intelligence.

At this writing the court in Cohen’s case has not issued its ruling. Below are copies of materials submitted to the court respecting the unfortunate case citations.

Submissions to Court in U.S. v. Courts Respecting False Citations

Order to Show Cause entered December 12, 2023

Counsel for David M. Schwartz, Letter Motion and Exhibits in Response to Order to Show Cause, December 15, 2023

Order re. Sealing entered December 18, 2023

Perry Law, Letter to Court, December 28, 2023

Perry Law, Letter to Court, December 28, 2023

Reply Declaration of David M. Schwartz, January 3, 2024

CereBel Intelligence Letter to Court, January 4, 2024

Posted on by justlawfulblog

Supreme Court declines review of constitutionality of non-disclosure of intelligence gathering practices directed to online communications companies

X Corp. v. Attorney General, No. 23-342.  Certiorari denied January 8, 2023.

The court has refused to consider X Corporation’s (X’s) assertion that the government’s insistence that information about information gathered from “electronic communication service providers (ECSPs) remain classified is an unconstitutional prior restraint of speech.

X sought certiorari after the United States Court of Appeals for the Ninth Circuit rejected X’s position that the government’s demand that X provide information to the government without disclosure of any information about the government and the corporation’s interaction absent bare-bones numeric estimates of activities.

The United States routinely gathers information about online activity through presentation of to ECSPs of National Security Letters (NSLs), which concern mechanics of use, or Foreign Intelligence Surveillance Act (FISA) orders, which concern the substance of online communications.

X sought and was refused government authorization to publish, as a matter of transparency, a report addressing these activities.  X has argued that this prohibition is a prior restraint in violation of the First Amendment.

The Ninth Circuit held that the procedural safeguards established to cabin government interference with speech freedoms do not apply to the intelligence gathering in issue.

Even if such constraints prompted prior restraint concerns, the Ninth Circuit, recognizing national security as a most compelling government interest, recalibrated previously well established and exacting standards government speech restrictions, concluding that the Constitution requires no more than that any restriction be “sufficiently calibrated toward protecting the government’s proffered security interest.” Twitter, Inc. v. Garland, Attorney General, 61 F.4th 686, 699 (9th Cir. 2023); Slip Op. at 27.

X and amici the Electronic Frontier Foundation (EFF) and the ASU School of Law First Amendment Clinic, perceiving that the Ninth Circuit had markedly departed from long established First Amendment precedents, found this change to be all the more distressing where the ruling leaves the government holding all the cards.

Under this less stringent standard, the government itself will determine what a worthy object of intelligence gathering might be and, absent some FISA court intervention, the government itself will ‘calibrate’ how well the government itself has protected the security interest.

Some would suggest that the investment of unbounded and virtually unassailable power in the federal government to conduct this form of intelligence gathering defies fundamental constitutional guarantees, a troublesome result which, as Monday’s denial of certiorari establishes, will not be explored this term.

X Corp v. Garland, Attorney General, No. 23-342 Petition for Certiorari

X Corp FKA Twitter v. Garland, et al., No. 23-342 Brief for Respondents in Opposition

X Corp. v. Garland No. 23-342 Reply Brief for Petitioner

Twitter v Garland, No. 23-342 Brief of Amicus Curiae Electronic Frontier Foundation

X Corp. v. Garland, Attorney General, No. 23-342 Brief of Amicus Curiae ASU College of Law First Amendment Clinic

Twitter v Garland 20-16174 (9th Cir.) March 6 2023

Twitter v Barr 445 F. Supp.3d 295 (N.D. Cal.) 2020

Posted on by justlawfulblog

Newsgathering Drones, Disclosure of Voting Records, Harassment Statutes, Free Exercise Retaliation, Rights of Access, and Much, Much More!

A non-exhaustive collection of First Amendment decisions and orders issued during the past two weeks.

All votes count, but not all voting questions can be litigated.

Clark v. Weber, No. 2:23-CV-07489-DOC-DFMx (C.D. Cal.) October 20, 2023.  Sua Sponte Order of Dismissal.

Plaintiff Clark lacks standing to demand that Donald Trump be removed from upcoming primary and general presidential elections, the federal court in California has concluded.  Notwithstanding plaintiff’s fear that his vote for Trump would be ‘wasted’ if it were determined that Trump could not be president, that generalized fear of what would be a non-specific injury is not sufficient to support standing, which requires a non-speculative harm and injury to the plaintiff from that harm.  

Clark v Weber, 23-CV-07489 (CD Cal.) Oct 20 2023

It is eternally and judicially true:  actions speak louder than words.

Commonwealth v. Papp, No. 1394 MDA 2022; No. J-S12025-23 Sup. Court of Pennsylvania, October 20, 2023.  

State harassment statute does not violate the First Amendment of the U.S. Constitution or the Pennsylvania Constitution, as the statute addresses conduct, not speech. 

Commonwealth v Papp, 2023 PA Super 209, 1394 MDA 2022, JS1202523 (Pa Super Ct.) Oct 20 2023

Not every official hesitation is conclusively an impermissible limitation.

Courthouse News Service v. Oregon State Court Administrator, 3:21-cv-680-YY (D. Oregon) October 19, 2023.

Summary judgment denied where questions of fact exist in case asserting that delayed disclosure of e-filed non-confidential civil complaints because of stated need for human review violates First Amendment rights of access. 

Courthouse News Serv v Cozine 3:21-cv-680-YY (D Ore.) Oct 19 2023

No state action, no federal liability.

Darden v. Crowd Management Services, 3:23-cv-00183 (SLG) (D. Ala.)  Order on motion to dismiss, October 19, 2023. 

Plaintiff cannot proceed with federal civil rights action against a private security company operating at a county fair without establishing that the private security company was engaged in state action.  

Darden v Crowd Mgmt Servs 323cv00153SLG D Alaska Oct 19 2023

Public proceedings and private interest protections.

Grant v. Lamont, 3:22-dc-01223 (JBA) (D. Conn.) October 20, 2023.  Ruling on defendant’s motion for relief from plaintiff’s confidentiality designations and order and plaintiff’s motion for a protective order and to seal.

Deposition transcripts are judicial documents requiring demonstration why designated portions must be sealed.  More than ‘good cause’ must be shown to support modification of a protective order or issuance of a new protective order.  Generalized assertions of fear of theft or requests to seal information the requesting party has put on record are not privacy interests sufficient to overcome the presumption of public access to judicial documents. 

The presumption of public access is grounded in common law and First Amendment principles, but may be overcome by a showing of privacy interests.  There must be extraordinary circumstances or a compelling need.  Materials submitted in connection with a motion for a protective order are judicial documents; the issue is the document, not a particular facto a statement in the document.  

Privacy interests, public safety, or attorney-client privileges may suffice to permit withholding from public view.  Privacy interests cannot be asserted where the party waived them on filing suit.  Where no evidence of a real risk of theft is present, a generalized assertion of fear of theft cannot substantiate withholding information from public view.  Even if some privacy interest outweighing public access could be found, the requested redactions are not narrowly tailored to protect privacy where information has already been placed on the public record.

Grant v Lamont 3:22-CV-01223-JBA (D. Conn.) Oct 20 2023

Search me!  But what for and for what?  

In Re Search Warrant Dated October 13, 2023, No. 23 Misc. 389 (JLR) (VF) (S.D.N.Y.) October 20, 2023.  Opinion and Order

The subject of a search warrant may obtain disclosure of a copy of the affidavit supporting the search warrant.  

The court perceived the right of access to be supported by the common law, First Amendment questions were not reached.  

Materials are judicial documents if they are relevant to judicial function, such as an affidavit supporting a search warrant.  The presumption of access is accorded great width because searches involve substantive rights.  

The law enforcement privilege does not counterbalance the right of access because investigations are public.  No others’ rights are implicated nor will disclosure provide a “tip off” to other actions, in the court’s view. In this case the object of the warrant was aware of actions.  Where disclosure of the affidavit would not reveal a confidential source, there is little chance that source or witness harassment would occur if the affidavit were disclosed.  

Finally, the court noted, it is not necessary that the person seeking the affidavit be engaged in bringing a suppression motion. 

In re Search Warrant Dated Oct 13, 2023. 23 Misc 389 JLR VF (SDNY) Oct 20 2023

Seeking a direct route from the prison to the prison library to the court.

Lawson v. Hudson Cnty. Bd. of Freeholders, Civ. 22-4340 (KM) (JBC) (D. N.J.) Oct 23, 2023.

Denial of access to a prison library may be a denial of access to the courts, but a person alleging such a denial must show a connection between the denial of access and the loss of a valid claim.  A claim must show an impediment and a consequent injury; a general and freestanding allegation will not suffice. 

Lawson v Hudson County Bd of Freeholders, Civ 224340 KM JBC (D NJ) Oct 23 2023

No First Amendment things first:  exhaustion of administrative remedies necessary before civil rights case may proceed further.

Littlefield v. Weld County School District, et al., No. 22-cv-02241-PAB-KAS (D. Colo.) October 19, 2023.

Former principal Littlefield brought an action alleging civil rights violations when his position was not renewed following controversy about his speaking with Christian athletes.  Where he once received glowing evaluations, he alleged that his accessing his free exercise rights caused school officials to disparage him and to make accusations about his character.

The court noted that the contours of free exercise retaliation claims are not well established.  The test would be whether any protected activity was a substantial or motivating factor in an adverse employment action.  

The court found, however, that Littlefield had not exhausted administrative remedies concerning his claims against individual defendants, making it impossible for the case to continue in federal court.  

Littlefield v Weld Cnty Sch Dist Re5J., 22-cv-02241-PAB-KAS (D. Colo.) Oct 19 2023

Droning on…or maybe not just yet.

National Press Photographers, et al. v. Director of Texas Dept. of Public Safety, et al.,No. 22-50337 (5th Cir.) Oct 23, 2023.

Reserving judgment concerning any later filed as-applied challenges to Texas’s drone regulations, the Fifth Circuit has concluded that plaintiff’s facial First Amendment challenge must fail. 

The Fifth Circuit has opined that there is no First Amendment right to film private individuals and property without consent, or to fly over prisons and sports venues at low altitudes. Texas’s drone regulations are not preempted by federal law.

Only conduct that is ”inherently expressive” is entitled to First Amendent protections.  Flying a drone is not “inherently expressive,” the appellate court has found.

Restrictions on access do not necessarily offend the First Amendment.  Rights of speech and publication do not incorporate unbridled information seeking rights.  

“No fly” provisions are wholly unprecedented but surveillance provisions implicate some First Amendment protections.  Restrictions on filming can implicate the First Amendment. 

In all, however, the court concluded that Intermediate scrutiny recognizes expressive interests as well as the state’s interest in protecting privacy, with the balance here tipping in favor of the state, particularly as the regulations are narrowly tailored to serve the state’s interest in citizen privacy, but only as this relates to private individuals.

National Press Photographers Ass’n, et al. v Dir. Texas Dept. Public Safety, et al., No. 2250337 (5th Cir.) Oct 23 2023

Saying is believing:  state not to deny funding because religious school does not accept state’s gender policies

Patterson Christian Academy v. Roy, 23-00-0557-DDD-STV (D. Colo.) (October 20, 2023).  Order denying motion to dismiss and granting summary judgment.

Patterson Christian Academy receives public funds in support of its preschool program.  The state denied the academy’s request for exemption from the state’s nondiscrimination requirements to permit the academy to follow its beliefs concerning biological sex when hiring individuals.  

Colorado requires that funding recipients agree to follow the state’s anti discrimination provisions, which prohibit deliberate misuse of preferred names, forms of address, or gender related pronouns.

Patterson Christian Academy offers separate sex bathrooms, offers dress codes, and uses pronouns conforming to biological sex.

The school signed the state required promise to adhere to the state’s speech and gender rules in order to receive funds, but then sought an exemption although similarly situated providers were told the funding entity had no authority to grant an exemption.

The school sued in federal court to enjoin the state from enforcing its gender rules, but the state did not present any arguments in opposition to the substance of the school’s position.  

Rather than issue an injunction by default, which the court considered, the court instead iterated the factors indicating that the academy would likely succeed on the merits. 

The ministerial exception, which permits religious entities to hire in accordance with its beliefs, is well established, the court observed.  Moreover, the school has First Amendment associational rights concerning religious and educational ends. 

Of substantial importance, the court opined, is that the state compels the school to forfeit its religious beliefs in order to participate in a public benefit.  The Supreme Court has repeatedly held that no such forfeiture can withstand First Amendment scrutiny.

Most importantly, the gender and speech rules are not neutral rules of general applicability.  The state’s provision of exemption for some but not to the academy demonstrates a lack of neutrality and general applicability.  

The state’s asserted interest in eliminating discrimination and ensuring education access has not survived scrutiny elsewhere, as these are not interests “of the highest order” as required to withstand strict scrutiny analysis.

The court added that the First Amendment ensures that individuals are free to speak notwithstanding whether that speech would be sensible or acceptable, or not, nor may the state compel any individual to speak messages preferred by the state.  

The Supreme Court has articulated this view and the Sixth Circuit has concluded that a public university may not compel the use of preferred pronouns without violating speech rights. The Ninth has held that compelling transgender participation in a biological female beauty pageant would violate the pageant’s expressive free speech rights.  

In light of the unrebutted authority outlined here, and the presumption of irreparable harm flowing from violations of the First Amendment, and the absence of a public interest that would counter the school’s First Amendment interests, supports the issuance of a temporary injunction, which the court issued, forbidding state interference with the school’s policies even if those policies appear to violate statutory or contractual anti-discrimination provisions.

Patterson Christian Academy v. Directors of Early Childhood Education and Universal Preschool Program, 23-cv-01557-DDD-STV (D. Colo.) 10/20/23

To know and know not:  disclosure laws circumscribed by non-disclosure laws.

Swoboda v. State of Pennsylvania Office of Open Records, 857 C.D. 2022 (Pa. Commw. Ct.) Oct 20, 2023.

Challenge to production of voter information under state “right to know ” law fails where the state right to know statute specifically exempts production of information otherwise prohibited from disclosure. In this case, the Pennsylvania voter information law precludes disclosure of voter information. 

Moreover, the Pennsylvania court declined collateral inquiry into federal voter registration law or the First Amendment, finding no authority under which the court might conduct such review.    

Swoboda v State of Pennsylvania Office of Open Records 857 CD 2022 (Pa Comm Ct) Oct 20 2023

Rhymes and Crimes:  Gang’s Rap Videos Not Quite Admissible

United States v. Donald, et al, 3:21-cr-8 VAB (D. Conn.) October 20, 2023.  Ruling on pretrial motions.

The First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Defendants are said to be members of a notorious gang engaged in drug distribution and crimes of violence, including murder.

In pretrial proceedings, the government sought a ruling on the introduction at trial of  “rap” music videos purportedly featuring defendants and pointing out aspects of alleged crimes.  Those recordings had authenticity issues, the trial judge found.  The prosecution must show, the court advised, why the videos ought to be admitted as non-hearsay evidence showing modus operandi relating to the charged conduct.  The lyrics and shout outs are not specific to the crimes charged, the court also noted.  

The videos may be marginally probative, perhaps, the court offered, but there is a huge risk of the videos being perceived as character evidence or prior bad act evidence.  The notion to admit the videos was denied without prejudice to renew or to provide other evidentiary foundations, or to use in cross examination of defendants or through defendants.  

United States v Donald 3:21-cr-8 (VAB) (D. Conn.) Oct 20 2023

Dateline: Misadministration of Miranda.  Sixth Circuit Finds Failure to Suppress Confession and Late-Filed Child Pornography Charge Likely Vindictive, Requiring New Trial

United States v. Zakhari, No. 22-5328 (6th Cir.) October 27, 2023.  Order reversing denial of motion to suppress, vacating conviction, and remanding for new trial.

In 2019, defendant Zakhari accessed online dating and chat sites which resulted in a cross-over of responses and chats with a correspondent who appeared to be over 18 years of age on one site but who stated she was a minor on another.

After exchanges of explicit messages and photographs, the defendant invited the correspondent to his residence, where he learned that his online inamorata was not a minor, but was, in fact, an undercover detective.  

Upon arrest, Zakhari was advised of his Miranda rights.  Zakhari told the officer he wanted to call his father and then explained that his sister was an attorney.  Zakhari was hesitant in his responses.  Interrogation continued.  Zakhari was unsuccessful in seeking suppression of the confession:  video of the confession was admitted at trial, resulting in conviction.

A clear expression of a desire for counsel need not be perfectly articulated to suffice, the Sixth Circuit found, and it is beyond all reason to look to “an accused’s subsequent responses to cast doubt on the adequacy of an initial request.” Slip op. 8, quoting Smith v. Illinois, 469 U.S. 91, 98-99 (1984).  

The trial court found that when Zakhari stammered and fell silent after being asked if he wished to call his sister, this indicated that he wished to speak to family and not counsel.  

The appellate court found that the happenstance that the counsel referenced was family did not negate Zakhari’s request.  Hesitancy, particularly where Zakhari had indicated that he wanted to stop and the detective interrupted Zakhari’s response to the question whether he wanted to call his sister by stating that the call would terminate discussion with the officer indicated that the detective knew that a request for counsel had been made.  

Although “ineloquent,” the defendant’s statements were sufficiently clear to warrant suppression.  

The Sixth Circuit rejected the suggestion that denial of the motion to suppress was harmless error, where a “confession is like no other evidence.”  Slip op. 12, quoting Arizona v. Fulminante, 499 U.S. 279, 196 (1991).  The trial court had observed at sentencing that Zakhari’s disbelief concerning his online correspondent’s age was a plausible defense.  In that light, admission of the confession video could not be seen as proof beyond a reasonable doubt that his confession did not contribute to his conviction.  

Where the government made only broad assertions without factual support in response to the vindictiveness challenge to the late-filed child pornography charge, that was insufficient to support disregard of the vindictiveness claim without demanding that the government explain its charging decision. 

In dissent one judge that denial of suppression was proper because Zakharia was equivocal and he failed to clarify what he meant.  His apparent uncertainty and ambiguity were not sufficient to invoke his right to remain silent.

On the other hand, the dissenting judge opined, the presumption of vindictiveness was not fairly explained where the late filed charge would result in sentencing more severe than the original charge, and was made only after Zakhari asserted his constitutional right to move to suppress.  

U.S. v. Zakhari, 22-5238 (6th Cir.) October 27 2023

Posted on by justlawfulblog

ACLU Pipes Up to Deconstruct Gag Order Entered Against Defendant Trump in D.C. Criminal Proceedings

United States v. Trump, No. 23-cr-257-TSC (D. D.C.) Brief Amici Curiae Of The American Civil Liberties Union & The American Civil Liberties Union Of The District Of Columbia In Aid Of The Court’s Re-Evaluation Of Its Gag Order. Submitted October 25, 2023.

The American Civil Liberties Union (ACLU) with its District of Columbia constituent, has submitted an amicus brief in the ongoing federal criminal case against former President Donald J. Trump, expressing its view that a gag order operating only against defendant Trump is deficient in ways that may violate the First Amendment. If the court is to persist in utilizing a gag order, the ACLU submits, the order as it stands must be revised to be specific, precise, and narrowly tailored to its aim, which is the fair administration of justice, not the silencing of Trump.

The ACLU offers to the court the ACLU’s vies that defendant Trump is, in essence, a no-good liar and ne’er-do-well, but by virtue of being criminally charged Trump has not forfeited First Amendment speech guarantees, nor should the public be denied their right to hear what Trump has to say.

When a court imposes an order limiting the speech of a party to a criminal proceeding, the court must do so in a way that is “precisely defined and narrowly tailored to protect the impartial administration of justice.” Amicus Brief, p. 1.

Orders limiting speech during pending proceedings are made to ensure the fairness of the proceedings, not to punish the accused.

The ACLU argues that the court’s order precluding public statements that “target” counsel or witnesses or testimony is too vague and ambiguous to permit a reasonable person to understand what is forbidden, and thus operates as a prior restraint of speech in violation of the First Amendment.

The ACLU’s amicus submission proffers a concise overview of the law respecting gag orders for the court’s consideration, noting that the great public interest i this case makes it all the more important for the court to hew carefully to the most stringent First Amendment standard in imposing any restraint on the speech of a declared candidate in the 2024 presidential election.

Whether one looks with approval or not on the defendant candidate, the ACLU submits, he cannot be deprived of all means of communicating opposition to his political enemies’ assertions.

Public speech will not, of itself, render a trial unfair, the ACLU submits.

Amicus refines its argument by observing that precluding public comment on witness testimony is impossibly overbroad, where such potential testimony, undefinable in advance, may relate to the 2024 presidential campaign. The ACLU urges that the court consider how any public statement would impair the fairness of the trial.

As a practical matter, where the public at large is incessantly and passionately vocal about the defendant and candidate, its is unseemly at best to forbid the defendant and candidate himself from speaking.

Moreover, the ACLU offers, impairing public discussion of special counsel’s activities undermines the ability of the public to fully and fairly understand and to formulate informed comment on the proceedings. Exempting public officials from the order could remedy this threat to core First Amendment protections.

Additionally, the court cannot unduly constrain defendant for fear that defendant’s speech might inspire violence. This is particularly so where threats and incitement do not enjoy First Amendment protections, making the order superfluous if that is the court’s aim.

The ACLU notes that while the court is concerned with the impartial administration of justice, the matter before the court may be the most talked about case in history. With voluminous information already public, the capacity to limit information available to potential jurors may be significantly impaired. If an order would be ineffective in that regard, the court might consider that protection of the potency of the court’s orders is in itself a component of the impartial administration of justice.

Should the court conclude that a gag order is in fact a judicial necessity, the ACLU concludes, the court is urged to narrow and to refine and to explain the provisions of an amended and modified order.

2023.10.25-ACLU-ACLU-DC-Amicus-Brief-United-States-v.-Trump-D.D.C.-No.-23-cr-257

Posted on by justlawfulblog · 2 Comments

Three judges dissent from grant of a stay of district court injunction pending Supreme Court’s decision on the merits in Missouri v. Biden.

Missouri v. Biden, 20A243. Order on application for stay, October 20, 2023.

Justices Alito, Gorsuch, and Thomas dissent to suspension of the effect of the injunction Issued by the trial court without full review of the record, which may not happen until late spring 2024. 

“Government censorship of private speech is antithetical to our democratic form of government and therefore today’s decision is highly disturbing.” Dissent, slip op. at 2.

There is no demonstration that there will be irreparable harm to the federal government if a stay is not granted, the dissent observes. The government offers hypotheticals but speculation cannot establish irreparable harm.  Even if speculation could establish irreparable harm, the hypotheticals would not be prohibited by the injunction.  The president is not bound;officials may speak. The injunction runs only to coercion and control of the tech platforms.

There has been no proof of irreparable harm, but the majority stays the injunction, which allows the conduct complained of and found likely to violate the First Amendment to continue. The lower court made detailed findings of fact not to be overturned lightly, but the majority has suspended relief provided below without a word of explanation. 

Should circumstances warrant.  The dissenting judges would deny the proffered application for a stay, but permit application in due course of the proceedings if needed.

Order 10/20/23

Posted on by justlawfulblog

Certiorari Granted in Case Challenging Executive Branch Involvement in Social Media Platform Policies

Missouri v. Biden, No. 23A243. Certiorari Granted October 20, 2023.

The Supreme Court today decided to proceed to the merits of this challenge to perceived government interference in online media platforms’ policies and practices during the Covid-19 pandemic. Several physicians and states, on their own behalf and for their citizens, allege that the government pressured media platforms to remove posts or accounts in violation of the First Amendment.

The injunction entered July 4, 2023 forbidding further government involvement will remain in effect until the case is decided.

The Court will address whether:. 1 the individual and state parties have standing to pursue redress; 2. whether the government’s actions transformed private social media companies content-moderation decisions into state actions, violating the private and state parties’ First Amendment rights; and 3. whether the terms and breadth of the injunction are proper.

No scheduling order has been issued as yet.

The Missouri v. Biden case is of enormous consequence concerning government involvement — some argue coercion or compulsion — in private entities management of speech decisions.

Of similar, if not equal, importance, are the two cases for which certiorari has been granted concerning state law regulation of online media platforms. In NetChoice v. Moody, No. 22-555 and Moody v. NetChoice, 22-277, the Supreme Court will consider whether states may intervene in private entities content determinations without violating the private entities’ First Amendment rights.

The Supreme Court will decide whether state law content moderation regulations comport with the First Amendment, and whether a requirement that individualized reasons for decisions be disclosed comports with the First Amendment.

Posted on by justlawfulblog · 1 Comment

Certiorari Denied in Challenge to First Amendment Exclusion from North Carolina Statute Providing Action for Trespass against Employee “Newsgathering”

North Carolina Farm Bureau Federation, Inc. v. People for the Ethical Treatment of Animals, Inc., et al., No. 22-1148; Attorney General of North Carolina v. People for the Ethical Treatment of Animals, No. 22-1150.  Certiorari denied October 16, 2023.

Ostensibly in an effort to aid employers whose employees engage as “double agents” for the employer and for an advocacy group, North Carolina enacted a statute that would permit employers to bring actions for trespass against employees who use employer premises to facilitate surreptitious recordings to be used by advocates or others. 

The costs of an individual’s — or even an entity’s — defense to a tort action could very well be prohibitive, making it likely that no stealth activity by employees would occur.  

More importantly, the Fourth Circuit has concluded that the employee activity in these cases was ‘newsgathering’  protected by the First Amendment, making applications of the North Carolina statute to employees involved in such activities unconstitutional.  

As certiorari has been denied, the Fourth Circuit’s decision stands.  

PETA v NC Farm Bureau Fed’n 60, F4th 815 4th Cir 2023

Posted on by justlawfulblog

Another Day, Another Stay: Justice Alito Orders Administrative Stay until October 20th of July 4th Order Enjoining Federal Government from Interference with Social Media Platforms

Murthry, Surgeon General, et al. v. Missouri, et al., No. 23A243.

This case presents a sweeping challenge by private citizens and state governments to federal officials’ alleged interference with social media platforms policy and moderation decisions during the Covid-19 pandemic.

The U.S. District Court for the Western District of Louisiana, having perceived some federal activity likely to violate the First Amendment enjoined federal officials from interference with social media platforms on July 4, 2023.

On appeal, federal officials were not pleased with the Fifth Circuit’s review, which clarified but affirmed significant aspects of the trial court’s determination.  Federal officials  sought immediate relief from the U.S. Supreme Court.

Government officials were further displeased with the results of the Fifth Circuit’s further review, which added back into the injunction another defendant, the Cybersecurity and Infrastructure Security Agency.  The Fifth Circuit found that CISA pressured the platforms into adopting CISA’s proposed practices for addressing mis, dis, and malinformation.

On October 3rd, the Fifth Circuit revised its opinion and entered a ten day stay, which would expire of its own accord today.  Justice Alito has today stayed the July 4th Order until next Friday, October 20th.

What will happen on the 20th is beyond justlawful’s powers of prognostication.  If there were a preference, which there is not, in light of the recent grants of certiorari in cases concerning First Amendment issues in state intervention on social media platforms’ moderation practices, justlawful would want certiorari to be granted in this case.

Granting certiorari now would dispense with further rounds solely respecting injunctive relief and permit the Supreme Court to locate in this term a comprehensive review of First Amendment issues as they may arise between governments, social media platforms, and content providers.

An incrementalist court might not be inclined toward a global view of such significant questions.  Yet with so many questions being raised about speech suppression and moderation — including a recent European Union directive to X — such clarity and certainty as may be had could be of assistance to all of the parties in planning their affairs.

Miscellaneous Order (10_13_2023)

Recent filings with the Supreme Court

23A243 Murthy v. Missouri Government’s Third Supplemental Memorandum

Murthy v. Missouri – Response to Government’s Third Supplemental Brief

Posted on by justlawfulblog

Room for One More: 5th Circuit Reverses Earlier Opinion, Adding CISA to Federal Entities to be Enjoined from Interfering with Social Media Platforms

Missouri v. Biden, No. 23-203445 (5th Cir.) Order entered October 3, 2023. Correspondence directed to U.S. Supreme Court, October 3, 2023.

Recently the Solicitor General asked the U.S. Supreme Court to continue in effect its stay of lower courts’ activities while the Biden Administration’s Petition for Emergency Relief or for Certiorari. The government rationalized that with the likelihood of additional litigation in the offing, maintaining a stay in place would save the government time and effort.

The Supreme Court has not adopted the Solicitor General’s “just in case” suggestion. The administrative stay entered earlier has lapsed of its own accord.

In the interim, the Fifth Circuit granted a petition for rehearing, then withdrew that grant, then, upon receipt of the government’s opposition to rehearing, which for no stated reason was neither filed nor considered earlier, again granted rehearing.

Upon rehearing, the Fifth Circuit reversed its position about the likelihood that the Cybersecurity and Infrastructure Security Agency, finding it appropriate to enjoin that entity. Although the U.S.D.C. enjoined CISA in its July 4th Order, the Fifth Circuit initially saw CISA rather innocuously flagging and shepherding to the social media platforms content that might be questionable with respect to Covid-19.

Where CISA was, in its interactions with and requests made to the media platforms, persuasive but not controlling, the injunctive relief ordered by the federal district court was in error.

On further review, the Fifth Circuit has concluded that CISA did much more than act as a conduit or “switchboard” for referrals of pandemic critical information from concerned entities to social media platforms.

CISA, the Fifth Circuit has now concluded, told the social media platforms what information was true or false and pushed for more restrictive social media policies.

This much crossed the line into significantly encouraging interfering with speech, the Fifth Circuit now concludes, which requires that its earlier opinion be withdrawn, its new opinions substituted, and the July 4, 2023 order of the federal trial court remain intact as to CISA.

The Fifth Circuit has advised the Supreme Court of its re-determination. The effect of the order is stayed for ten days, which will, it can be surmised, allow time for the government to revive or refile its petition for relief with the Supreme Court.

Missouri v Biden 23-30445 5th Cir Oct 03 2023

2023-10-03 – Letter to U.S. Supreme Court re Panel Rehearing in Fifth Circuit

 

 

Posted on by justlawfulblog

Big Huddle: Supreme Court to Consider Multiple First Amendment Certiorari Petitions at September 26 “Long Conference”

Supreme Court justices will confer on Tuesday, September 26, to consider whether to hear several cases, some of which seek to test the limits of state powers versus First Amendment guarantees.

Among other matters, these cases present questions concerning:

What constitutional protections attach to investigative reporting?

Should criminal defamation statutes be abolished?

How far may a state regulator may go in exerting pressure to sever associations?

May states may compel social media providers to carry content against their wishes, and compel the social media entities to report to the state on its internal activities?

Can a state may enact a special trespass action that could inhibit investigative reporting?

Is it permissible for a state to forbid psychotherapists from discussing certain sexual therapies while permitting discussion of sexual identity?

Center for Medical Progress, et al.  v. Planned Parenthood Federation of America, No. 22-1168.

Petitioners surreptitiously insinuated themselves into Planned Parenthood sites and meetings, where they recorded discussions of abortion practices.  The publication of those recordings provoked public controversy.

Planned Parenthood succeeded in obtaining a judgment for $2,000,000 in ‘economic’ damages and $14,000,000 in attorneys’ fees.  These ‘economic damages’ related to the costs of securing properties and computing systems, both, purportedly unrelated to publication, which would have been protected by the First Amendment.  The Ninth Circuit affirmed.

Petitioners seek Supreme Court review because they perceive that the “economic” damages are simply an end-run around First Amendment protections. 

The parties ask whether the First Amendment shields investigative reporters against tort claims for non-publication damages.  

Petitioners seek Supreme Court review because, while the Ninth Circuit has held that claims for non-reputational economic damages or generally applicable laws are not protected by the First Amendment, other circuits have reached contrary conclusions.  

Planned Parenthood argues that investigative reporters must respond in damages where they gained access to properties and practices by subterfuge. Respondents see no reason why the investigators should not answer to laws of general applicability. 

Amicus Foundation for Moral Law submits that speech and press freedoms are bestowed by divine providence, existing beyond the U.S. Constitution.  This group vehemently condemns Planned Parenthood’s activities and assert that equity would not permit them to benefit from their wrongdoing.  Failure to recognize petitioners’ activities as shielded by the First Amendment will inhibit undercover investigation everywhere, to the injury and damage not only of those who speak or publish, but also to those who would otherwise be unaware of the true nature of the activities reported.  

Amici speech advocates– a somewhat motley crew — have joined forces to urge the Supreme Court to grant certiorari, asserting that to fail to do so would leave in doubt significant contours of First Amendment jurisprudence to the detriment of all as speech will be suppressed.  Amici decry the notion that constitutional guarantees may be circumvented by recasting speech and publication harms as “economic” damages.  Amci point to the historic significance of surreptitious resource and immersion reporting to the nation’s laws and history, citing the works of Upton Sinclair and the pseudonymous “Nelly Bly.”

Amici note that the recharacterization of constitutionally protected speech as economic activity would allow wrongdoers to profit from their wrongdoing through suits against those who disclose what they have done.  This would be, they submit, a perverse result which would cause investigative reporting to grind to a halt. 

The Ethics and Public Policy Center as amicus not only supports petitioners in seeking review, but comments that deep national divisions concerning abortion threaten the integrity of the rule of law. “Carve outs” excepting some activities from First Amendment protections by recasting a cause of action as related to economic and not speech would only enhance the poor results which have flowed from contortions aimed at protecting — or removing — abortion interests.

Pro-life amici join in petitioners’ search for review, asserting that awarding “economic” damages would chill speech, an intolerable result. 

Frese v. Attorney General of New Hampshire, No. 22-939.

Petitioner Frese has from time to time given public voice to his opinions, an activity which, in this case, resulted in arrest for criminal defamation.  Frese had posted a comment in a local newspaper characterizing the retiring chief of police, the complainant in the case, as “dirty.”

Misdemeanor proceedings, in which no attorney was provided for Frese, could have resulted in Frese being incarcerated, as he was at large “on good behavior” related to a suspended sentence, which would end if Frese were found liable for criminal defamation.

The New Hampshire Department of Civil Rights intervened in the criminal matter, offering that there was not enough evidence to convict Frese of criminal defamation.  

With criminal charges dismissed, Frese challenged the constitutionality of the criminal defamation statute. Frese was unsuccessful on the facial challenge to the statute but his as-applied challenge survived, as the court found that the breadth of the statute and the wide discretion vested in the prosecution, who in Frese’s case was also the person allegedly defamed, made for vagaries so marked that a Fourteenth Amendment due process violation supporting Frese’s action under 42 U.S.C. Section 1983 could be stated.  

Frese argues that the criminal defamation statute is facially unconstitutional as it sweeps within its reach criticism of public officials, which is speech protected by the First Amendment.

Petitioner’s case was dismissed, a result affirmed by the U.S. Court of Appeals for the First Circuit.

A concurring judge of the First Circuit nonetheless voiced her worry about the lingering presence of criminal defamation statutes, as those laws, legacies of bad legal history, cannot be squared with the “democratic ideals” of the United States.  Where the prosecutor and the defamed are one and the same, and where there exist no discernible boundaries between gossip and loose talk and criminal defamation, opportunities for mischief abound.

Free speech advocates, as amici, support Frese in his efforts, arguing that the very threat of prosecution, particularly where speech otherwise protected by the First Amendment is concerned, chills speech. Amici note that there is a disturbing trend which finds politicians punishing enemies with criminal defamation charges to silence them.  

The State of New Hampshire opposes certiorari, asserting that there is no conflict among federal or state supreme courts which would support assumption of jurisdiction. Moreover, the expansive relief requested by Frese – doing away with criminal defamation statutes altogether – is far too sweeping to address within the narrow facts and circumstances of this case. 

The state scoffs at Frese’s vagueness complaints, stating that where a person of ordinary intelligence is capable of discerning  that the New Hampshire statute addresses false statements willfully and knowingly made, not simply speaking publicly.  Moreover, the identity of the enforcer has no bearing on whether the statute is unconstitutionally vague.    

National Rifle Association v. Vullo, Individually and as Superintendent of the New York State Department of Financial Services. No. 22-842.

The National Rifle Association (NRA)  asks the Supreme Court to hold that a state official may not interfere with the NRA’s associational rights by intimating that financial institutions will face adverse regulatory action if the financial association persists in affiliating with the NRA. 

The  Second Circuit Court of Appeals found the former superintendent to be entitled to assert qualified immunity from suit, as the superintendent may make public statements about what might happen if the financial institutions were to continue to engage with the NRA.  Moreover, the NRA could not point to a specific First Amendment violation that would support its 42 U.S.C. Section 1983 action.

Multiple amici urge the Court to recognize that threats need not be explicit to be unlawfully coercive.  A financial institution’s conclusion that sanctions would ensue if non-binding “guidance” was disregarded is not the stuff of fantasy.  

State officials ought not be able to elide responsibility simply because their prose might be sophisticated:  the substantial threat of regulatory punishment for associating with the NRA can and must be seen as a violation of the First Amendment.  

In passing, the Goldwater Institute noted that no one failed to understand what King Henry II meant when he wished aloud to be free of a noisome archbishop.  

Several states as amici urge the Court to review the case for, they assert, if state officials are permitted to strong arm those they regulate without constitutional constraints, the harm to those involved and the the public would be intolerable.  No one wants to fear or to face punishment for making choices and forming associations that a regulatory body might disdain for its own political ends.   

Net Choice v. Moody, No. 22-393; Moody v. Net Choice, No. 22-277. 

These cases ask the Court to determine whether by legislative action states may compel disclosure of the inner workings of social media platforms, and whether a state may compel a social media platform, a private entity, to publish content the social media company deems anathema. 

Stein v. People for the Ethical Treatment of Animals, No. 22-1150. 

North Carolina has created a tort action that would allow employers to recover from employees who record information in non-public areas of the employer[‘s property and then publish the information.  The statute seeks to permit recovery for the employees’ breach of the duty of loyalty to their employers. 

The Fourth Circuit has deemed this tort action permitting damages for a “certain kind of trespass” violates the First Amendment where newsgathering is concerned. 

The parties ask whether audio visual recording must always be protected  Petitioners assert that there must be no “newsgathering”exception to a general law.

Respondents note that petitions earlier conceded that the North Carolina statute is designed to inhibit speech.  The statute punishes whistleblowing.  

Tingley v. Ferguson, No. 22-942

The State of Washington enacted a Counseling Censorship Law which imposes upon licensed psychotherapists a prohibition against discussion of changes in sexual orientation or identity, while permitting discussion that supports identity exploration.  

Petitioner Tingley, a Christian marriage counselor, failed in challenging the law in the lower courts, as those courts considered the censorship law to be a regulation of conduct, and not of speech, thereby obviating any First Amendment concerns.

The state opposes petitioner, arguing that the law is established that conduct may be regulated even if it incidentally burdens speech and that professions may be regulated even if the profession consists largely of speaking.

The state opens its brief with arguably scurrilous characterizations of Christians, and at the same time offers that the case is not significant enough for the Supreme Court to review.  Petitioner is the only therapist in the state who has complained.  Moreover, if petitioner wants to provide ‘conversion therapy,’ petitioner can do so in settings other than therapy, such as in churches, so there is “no real problem.” 

While the state presents elaborate criticisms of “conversion therapy” without ever mentioning whether the statute might be construed to prohibit discussion of gender transition.  

Amici join petitioner in seeking an opinion that not only declares that the Washington statute is unconstitutional, but also one that declares an end to Employment Division v. Smith, 494 U.S. 872 (1990). 

Posted on by justlawfulblog

Stay!  Just a little bit longer…Supreme Court extends to September 27th its administrative stay in case enjoining Biden officials from interference in social media platforms

Murthy, et al. v. Missouri, et al., 23A243.  Order extending stay to September 27 entered September 22, 2023.

With briefing by principal parties completed, on Friday the 22nd, the day on which its initial stay would dissolve, Justice Alito extended until September 27 the administrative stay of an injunction against federal officials issued by a federal district court on July 4th.  

The Federal District Court for the Western District of Louisiana issued a 155 page memorandum detailing based the court’s perception that federal officials had unlawfully coerced social media entities in their moderation activities during the Covid-19 pandemic, which actions violated plaintiffs’ First Amendment rights.  The accompanying order enjoined federal officials from further such acts.  

On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the government officials’ arguments that the trial court’s order was overbroad and vague.  The three judge appellate panel dismissed many federal defendants against whom no case had been articulated, and, most significantly, narrowed yet maintained the gist of the trial court’s order enjoining federal officials from coercive activities with social media platforms.

A petition to stay or, in the alternative to grant certiorari, was submitted to Justice Alito on September 14th.  

Federal officials reiterated their arguments that the plaintiffs have no standing to bring the case, that federal officials cannot and ought not be constrained by the courts.  The federal government has its own voice, the officials submit, and ought not be restrained in voicing its policies, including criticisms of others.  

The federal officials have asserted that they only coerced, but never compelled, the social media companies.  However, they appear to argue that they cannot discern the difference between those activities, and thus remain forever imperiled by the trial and appellate court’s orders.  

The extended stay will, absent further action, lapse on the day after the Supreme Court’s first case conference of the 2023 term on September 26.  Whether the justices will consider the government officials’ petition to consider the petition as one seeking certiorari is anyone’s guess.  The first conference of the term is dubbed the “long conference” because of the volume of business for the justices to attend to before getting underway for the term. Whether the justices will seize the opportunity to make the conference even longer will likely remain unknown until the 27th. 

The significance of this case, as noted by the “Kennedy Plaintiffs,” as amici here, cannot be understated, even in an atmosphere already permeated with not infrequently outlandish hyperbole.  

This time it might be true, the Kennedy Plaintiffs have noted.  

Justlawful likewise notes that this case seems to have it all.  Whether viewed from the perspective of Article III standing or First Amendment concerns. Can individual plaintiffs, strangers to the dialogues between social media platforms and the federal officials, establish an interest affected by those dialogues that a court can redress, particularly where the pandemic has ended?  Can federal officials demand that social media platforms revamp their moderation policies so that content  providing “misinformation” or “disinformation,” as defined by federal officials, must be removed? Is such activity state action and do social media platforms become state actors in such circumstances, raising constitutional concerns. 

As interesting as these issues may be, and as the case may be in conflict with other federal circuit courts’ views, it should be borne in mind that the Roberts Court is a court of incrementalism and not one of activism.  

Nonetheless, it cannot escape the Court’s attention that cases raising First Amendment and other constitutional concerns have arisen multiple ways as the internet has assumed center stage in 21st century communications.   Where such matters are clamoring for the Court’s attention, judicial conservatism and deference, however wise such principles may otherwise  be, may begin to ring hollow here.  

As much as it is striking that the Supreme Court of the United States has become a court of first, rather than last, impression as a result of the explosion of emergency petitions, the widespread use of national injunctions, and the expansion of Supreme Court advocacy, this phenomenon is now well established.  Leaving all concerned to fend for themselves by denying review is not necessarily a good look for the Court. 

Time will tell.

Filings Related to Supreme Court Petition for Stay

23A243 Application for Stay

23A243 Opposition to Application for Stay

23A243 Reply Supporting Application for Stay

23A243 Brief of Amicus in Opposition to Stay

23A243 Brief of Amicus Kennedy Plaintiffs

23A243 Brief of Amicus Foundation for Freedom Online

23A242 Brief of Amicus State of Ohio

Fifth Circuit and U.S.D.C. Opinions and Orders

23-30445 Missouri v Biden 5th Cir. 9.8.2023

22-cv-01213 Missouri v. Biden Ruling July 4, 2023

22-cv-01213 Missouri v. Biden Judgment July 4, 2023

Posted on by justlawfulblog

Biden Administration Involvement with Social Media Platforms During Pandemic Likely Violated First Amendment, Fifth Circuit Concludes

Missouri, et al. v. Biden, et al., No. 23-30445 (5th Cir.) Per curiam opinion of three judge panel released September 8, 2023.

The United States Court of Appeals for the Fifth Circuit, having reviewed the record and the law concerning injunctions relating to First Amendment claims, has concluded that the United States District Court did not err in enjoining the Biden Administration, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation from further coercion or excessive encouragement of social media platform’s policies and practices concerning content and accounts. In a per curiam opinion, the three judge panel of the Fifth Circuit found no error in the perception that federal leaders substantially engaged with social medial platforms, threatening punishment should the platforms not acquiesce in government commands, in likely violation of the First Amendment rights of plaintiff private citizens and states.

The appellate court did not agree that other named defendants were likely to have violated the First Amendment, as their actions did not create such a close nexus between government and private entities actions that the the acts of the platforms could be seen as the acts of the government.

Notwithstanding the perceived Executive Branch and law enforcement violations of the First Amendment, the Fifth Circuit observed that the federal government has and retains the power to convey its own messages, and may communicate with social media platforms to address those messages, provided such engagement with the platforms is not coercive.

Let us count the ways. The opinion recounts the ways in which, on multiple occasions, the White House, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation injected themselves into the operations of social media platforms during the Covid-19 pandemic, ostensibly in the, only name of inhibiting the dissemination of misinformation, by insisting on removal of information disfavored by the government, demanding reforms of moderation policies, and none too subtly indicating that the platforms’ failure to comply with government demands could have adverse consequences.

Individual Plaintiffs: What is Past Is Prologue. The Fifth Circuit rejected the government’s argument that any injury suffered by the individual plaintiffs is wholly in the past, negating standing to seek to enjoin future harms.

The court opined that past speech suppression has created a prior restraint operating against plaintiffs in the present in the form of fearful self-censorship, which circumstances support standing to seek injunctive relief.

Moreover, the restoration of accounts that had been suppressed and representations that future harm will not occur did not persuade the court, as the key issue is government interference, not media self-governance.

Not Exactly Hands Off. The court rejected the argument that all of the decisions were those of the social media platforms, as the core issue is coercive government interference with the media platforms, and that government intrusion is demonstrated on the record of the case.

Injunctive Relief Can Help. The court found redressability to have been established where granting relief would preclude unlawful government interference with social media entities moderation policies, which demonstrates that there is a relationship between the request relief and the harms alleged.

Government Plaintiffs’ Speech Interests. The Fifth Circuit panel rejected the argument that states have no First Amendment rights, as states can be seen to have a sovereign right to speech on the states’ own behalf, and the states are injured where state officials’ accounts are “censored, due to federal coercion.” Slip op. at 26. In addition, states’ reciprocal listening to citizens is impaired by federal interference with media platforms.  

The crux of the matter. “The government may not abridge free speech.” Slip op. at 28. Although a private party has no such obligation concerning free speech, that is not the case where the government coerces or encourages a private party to behave in a way that would be unconstitutional had the government acted alone.

In the Missouri v. Biden opinion, the Fifth Circuit panel has adopted nomenclature respecting considerations relevant to government coercion or significant encouragement that will be called the “close nexus” test, obsoleting former phrases as “fair attribution” or “state compulsion.” The panel noted that this case does not involve “joint action.”

The “close nexus” test examines the actions complained of and the scope of government intervention, whether by innocuous persuasion or problematic coercion or significant encouragement.

Significant encouragement must be active and meaningful control over a private party’s decisions. Mere regulation cannot be enough. To establish a “close nexus,” it must be shown that the government is practically “responsible” for the decision.” Slip op. at 31, citing Blum v Yaretsky, 441 U.S. 991, 1004 (1982).

Active meaningful control must be present either through entanglement in decision making or direct involvement in carrying out the decision, such that the decision must be seen as that of the state.

Significant encouragement may exist without either joint action or complete control of the private party.

Coercion or compulsion will also satisfy the “close nexus” test, although coercion may be more subtle, as the state is free to advocate for its own positions. Examining whether there is persuasion or intimation of punishment for failure to comply with a government request may be a tipping point toward establishing coercion.

Distinguishing convincing versus coercive behavior may be obtained by examining a government speakers choice of words and tone, the perception of threat, regulatory authority, and adverse consequences. Slip op. at 36, citing National Rifle Ass’n v. Vullo, 49 F.4th 700, 715 (2nd Cir. 2022).

Seeming may warrant believing. The Fifth Circuit thinks that a government demand may be coercive even if the speaker lacks direct authority to make good on a threat, so long as there is some power in operation in the background. Slip op. at 47-48.

Actual direct authority is not necessary to engage in impermissible pressure.

Explicit vocalization of a threat is not necessary if the threat is apparent from the circumstances.

Not to put to fine a point on it. In this case, government officials told social media platforms that they were killing or poisoning people and that fundamental reforms were in the offing to ensure the platforms’ accountability.

Simply going along with “no strings attached” state requests, without threat of punishment, is not sufficient to create a “close nexus” between private action and government interference with speech, as the Ninth Circuit has opined. But here, however, the Fifth Circuit has concluded that officials’ statements could be construed as threats.

The Fifth Circuit found that government officials significantly encouraged content moderation by “exercising active, meaningful control over platform decision making, including entangling themselves with platform moderation policies.

The panel observed that what were initially simple inquiries into social media moderation processes bloomed into questions about internal processes and then evolved into questions about why certain content was not removed. Moreover, federal officials would demand that private companies change their policies, doing so both privately and publicly.

The social media companies capitulated and advised the White House that they would accede to the government’s demands.

In addition to White House and other high level official involvement, the FBI urged the social media companies to take down content. it was not necessary to articulate any threat where inherently coercive authority pervaded the law enforcement function. Similarly, specific consequences did not need to be articulated where all concerned were aware of the armament of remedies the FBI had at its disposal. Threats of hacking by state actors to spread misinformation intimidated the social medial platforms sufficiently to prompt the sites to take down content and close accounts in compliance with FBI directives.

Just as administration officials had done, the FBI injected itself into platform decision making, making recommendations that platforms adopted. When those recommendations became interwoven into social media platform decision making, it could no longer be said that the platforms were acting interdependently of significant federal involvement. Slip op. at 56.

The Centers for Disease Control were not plainly coercive but significantly encouraged moderation decisions, particularly by flagging content for removal. However, as the CDC had no power to compel social media platform decisions, nor did they allude to adverse consequences, the Fifth Circuit did not perceive coercion.

However, significant encouragement by the CDC was found in “Be on the Lookout” meetings among officials and media representatives and “advisories” about “hot topics” concerning the pandemic. Concomitantly the CDC directed changes to platform moderation policies. On inquiry by the platforms, the CDC would pronounce whether content was ‘misinformation’ and/or in need of government approved labels. Platforms sought approval from the CDC to conform their acts to CDC dictates, refraining from actin where the CDC had not weighted in on particular items. Slip op. at 58.

The social media platforms could not and did not act independently in these circumstances, the Fifth Circuit found. While not compelled, the platforms’ content decisions could nonetheless be deemed to be those of the states.

Other federal powers persuasive, but not compelling. The National Institute of Allergies and Infectious Diseases (NAIAD), the Department of State, and the Cybersecurity and Infrastructure Security Agency (CISA) did not communicate with social media platforms, although Anthony Fauci, M.D., Director of NAIAD, promoted some government views, while discouraging others.

The appellate court stressed that government is permitted to express views without offending the First Amendment, and here, in the absence of coercion or significant encouragement, these federal officials cannot be seen to have violated the First Amendment.

The Department of State alerted social media platforms about adverse state actors’ methodologies, but took no part in engagement in content, flagging items, or policy changes. There were not threats and no apparent authority to execute threats.

CISA flagged content, but the Fifth Circuit found this to be convincing rather than coercive, and CISA had no power nor did its requests threaten, although the requests were not trivial.

The federal district court was correct, the Fifth Circuit has concluded, except that the trial court included individuals in its order of injunction that had not engaged in impermissible coercion significant encouragement. Thus, their acts could not be seen as creating the kind of ‘close nexus’ that would permit concluding that the acts of the government and the acts of the private entity were in unison, the latter being attributable to the former, and in violation of the First Amendment, as the government could not have taken such actions on its own without violating the First Amendment.

No repair to be had. The Fifth Circuit reiterated the well established principle that deprivations of First Amendment rights, even for brief periods of time, can be seen as causing irreparable harm. This was seen as true in this case where assertions support the notion that further First Amendment deprivations are threatened.

Speech freedoms in the balance. The appellate panel stated that the balance of equities may be examined in light of the public interest versus that of the government, stressing that where the government is the opposing party, as in this case, the public interest and the government interest are merged.

“Government speech” cannot cancel First Amendment rights. The Fifth Circuit has rejected the argument that the executive branch’s “government speech” interests outweigh plaintiffs’ First Amendment rights, nor may the government use “government speech” to “silence or muffle the expression of disfavored viewpoints.” Slip op. at 64, citing Matal v. Tam, 582 U.S. 218, 235 (2017).

Even though it is correct that the government wants to communicate with social media companies, the government cannot pursue its ends to the extent that the government engages in viewpoint suppression. Moreover, the appellate court stressed, the use of injunctions to protect First Amendment freedoms are always in the public interest. Equity favors the plaintiffs, the court has found Slip op. at 64, citing Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir 2012).

But! But! With all these considerations favoring the plaintiffs’ requests for injunctive relief, the appellate court found that the trial court had erred in issuing an order that was far too broad — reaching individuals and entities who had not potentially violated the First Amendment — and far too vague — leaving properly affected individuals and entitles to ‘guess’ at what interactions with social media companies would be permitted and what would be forbid. den. Slip op. at 65-66.

Friendly persuasion permissible. It is not unlawful for the government to urge, encourage, pressure, or induce any social media company to act with respect to content moderation unless the government “crosses the line into coercion or significant encouragement.” Slip op. at 66.

Similarly, following up with media companies about content or requesting reports or asking companies to watch out for posts is not unlawful. Id.

Immediate reform of order indicated. The vagueness of the order of injunctive relief is highly problematic, the Fifth Circuit has found, as the government cannot know what might be impermissible where such broad generalities are used. The injunction’s carve-outs do not cure this problem.

Barring the government from working i partnership with private entitles on social media policies is impermissible, particularly where doing so would impact their rights of third parties not involved in this suit, which entitles have First Amendment rights of their own, concerning which no prior restraints ought to be attached

While the ordinary remedy would be remand, in light of the press of time in this case, the Fifth Circuit determined that it would revise the initial trial court order itself, revoking all but one provision and modifying that provision to read:

Defendants, and their employees and agents, shall take no
actions, formal or informal, directly or indirectly, to coerce or
significantly encourage social-media companies to remove,
delete, suppress, or reduce, including through altering their
algorithms, posted social-media content containing protected
free speech. That includes, but is not limited to, compelling the
platforms to act, such as by intimating that some form of
punishment will follow a failure to comply with any request, or
supervising, directing, or otherwise meaningfully controlling
the social-media companies’ decision-making processes

Slip op. at 70.

The Fifth Circuit has emphasized that the government defendants cannot coerce or significantly encourage content moderation decisions, threaten adverse consequences, or threaten harm upon noncompliance, nor can the government supervise content moderation decision or engage in those decisions. Slip op. at 71. Simply stated, the government may not interfere with social media platforms’ independent decision making.

Beneficiaries not present. The appellate court is not troubled by the fact that potential plaintiffs not parties to this case might benefit from the injunction against government interference in social media platforms. The extension of benefits to non-parties is not overly broad where the harms that flow from government actions affect every single social media user.

The upshot. Through its September 8, 2023 Opinion and Order, the Fifth Circuit has taken the following action concerning the July 4, 2023 Order of the U.S District Court for the Western District of Louisiana:  

Affirmed respecting:

The White House

The Surgeon General

The Centers for Disease Control

The Federal Bureau of Investigation

The affirmation of the injunction affects the following individuals and entitles:

Executive Office of the President of the United States: 

White House Press Secretary, Karine Jean-Pierre; 

Counsel to the President, Stuart F. Delery; 

White House Partnerships Manager, Aisha Shah; 

Special Assistant to the President, Sarah Beran;

Administrator of the United States Digital Service within the Office of Management and   Budget, Mina Hsiang; 

White House National Climate Advisor, Ali Zaidi; 

White House Senior COVID-19 Advisor, formerly Andrew Slavitt;

Deputy Assistant to the President and Director of Digital Strategy, formerly Rob Flaherty; White House COVID-19 Director of Strategic Communications and Engagement, Dori Salcido; 

White House Digital Director for the COVID-19 Response Team, formerly Clarke Humphrey; 

Deputy Director of Strategic Communications and Engagement of the White House COVID-19 Response Team, formerly Benjamin Wakana; 

Deputy Director for Strategic Communications and External Engagement for the White House COVID-19 Response Team, formerly Subhan Cheema; 

White House COVID-19 Supply Coordinator, formerly Timothy W. Manning; and Chief Medical Advisor to the President, Dr. Hugh Auchincloss, along with their directors, administrators and employees.

Surgeon General Vivek H. Murthy; 

Chief Engagement Officer for the Surgeon General, Katharine Dealy, along with their directors, administrators and employees. 

The Centers for Disease Control and Prevention (“CDC”):

And specifically the following employees: 

Carol Y. Crawford, Chief of the Digital Media Branch of the CDC Division of Public Affairs; 

Jay Dempsey, Social-media Team Leader, Digital Media Branch, CDC Division of Public Affairs; and 

Kate Galatas, CDC Deputy Communications Director. 

The Federal Bureau of Investigation (“FBI”):

And specifically the following employees: Laura Dehmlow, Section Chief, FBI Foreign Influence Task Force; 

Elvis M. Chan, Supervisory Special Agent of Squad CY-1 in the FBI San Francisco Division.

Reversed as to:

NIAID Officials

CISA Officials

State Department Officials.

Vacated except as to provision six as modified by the Fifth Circuit on September 8, 2023.


Stayed administratively pending application for Supreme Court review

Missouri v. Biden No. 23-30445 (5th Cir.) September 8, 2023

Missouri v Biden 22-cv-1213 (W.D. La.) July 4 2023

 

 

 

Posted on by justlawfulblog

The (Ex)-Cardinal sins successfully, or so it would seem to some

Theodore McCarrick, once a darling within the Catholic hierarchy who traversed the globe promoting peace and raising money, served as Cardinal for two U.S. archdioceses, maneuvered the white smoke machinations of the Vatican like a boss, and even spearheaded a campaign against clergy sexual abuse, was declared unfit to be tried on those very same charges on August 30th by a trial court in Dedham, Massachusetts.  

McCarrick faced charges that he molested a minor at a wedding  a half-century ago in Wellesley, Massachusetts.

Defense counsel’s forensic examination of McCarrick indicated cognitive impairment sufficient to make it impossible for him to participate in his own defense. In turn, an examination by the Commonwealth reached the same conclusion, causing the prosecution to recommend dismissal, which recommendation the court accepted. 

The Massachusetts criminal charges against McCarrick were of note not only because of McCarrick’s once prominent place in the church hierarchy, but also because of the strategy adopted by the Commonwealth of Massachusetts, which relied on an unusual feature of state law that holds that the statute of limitations never closes when a potential accused leaves the state.  This permitted proceeding to try to convict of misconduct said to have occurred in 1974, when the complaining witness was fourteen years old.

McCarrick remains in residential care in the Midwest. 

Additional proceedings await in Wisconsin.  

The case has received significant attention, as shown through a few examples here.  

New York Post: Ex-Cardinal Unfit for Trial

Sexual abuse charges dismissed against McCarrick as ex-cardinal ruled unfit to stand trial

Sex Abuse Charges Against McCarrick Dismissed, Ex-Cardinal Still Faces Charges in Wisconsin

WCVB: Ex-Cardinal Unfit to Stand Trial

Examiner: Disgraced Cardinal Unfit to Stand Trial

NCR: Bishop Accountability Group Finds Dismissal Hugely Disappointing

First Things: McCarrick, Not Pope, Proper Subject of Report

McCarrick’s Escape: An Allegory for our Times

Posted on by justlawfulblog

Canadian Court Upholds Professional Regulatory Body’s Imposition of Remedial Measures on Outspoken Psychologist Jordan Peterson

Peterson and College of Psychologists of Ontario, 2023 ONSC 4685, August 23, 2023.

Rights to free expression must yield to regulated profession’s interest in upholding primary principles of human dignity and public confidence in the profession:  outspoken Canadian psychologist Jordan Peterson’s public comments merited professional remediation, Canadian Superior Court in Ottawa has concluded.  

In 2022, Jordan Peterson, Ph.D., made several public pronouncements concerning, among other things, sexual transitioning, obesity, and the characters of a former client and a public figure.  Those remarks provoked an onslaught of complaints to the psychology profession’s regulatory body, the College of Psychologists of Ontario, which, upon investigation, ordered Peterson to undertake coaching so as to conform his remarks to professional standards requiring that all persons be accorded dignity.

Peterson refused and requested judicial review, stating that he had undertaken his own remediation and that his speech interests were unduly impacted by the board’s measure, which was not considered to be punitive, but which would lead to discipline if it were not completed.  

The Superior  Court  of Justice in Ottawa found no error in the professional regulatory body’s finding that public confidence in the profession requires that speech conform to ethical standards.  The profession of psychology in Ontario holds “human dignity” as a first principle, requiring that psychologists refrain from words or actions that would offend that dignity or result in discrimination.  

Thus in at least one province, Canada has concluded that public expression must be constrained by professional codes of ethics. Peterson has been assessed $25,000.00 in costs. 

Peterson-v.-College-of-Psychologists-of-Ontario-DC-714-22-FINAL-18-August-2023 (1)

Posted on by justlawfulblog

Chalk Talks!  D.C. Circuit Concludes Selective Enforcement of Defacement Ordinance to Permit Black Lives Matter Public Statements While Precluding Pro-Life Statements Is Impermissible Viewpoint Discrimination

Frederick Douglass Foundation, Inc., et al. v. .District Of Columbia, No. 21-7108. Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-03346). Dismissal reversed and remanded August 15, 2023.

George Floyd died in the custody of Minneapolis, Minnesota police in May, 2020.  His death  sparked nationwide protests demanding racial justice.  

In Washington, DC, the expression “Black Lives Matter” appeared in multiple media and in multiple locations throughout the city.

“Black Lives Matter” statements were so widespread and immediate that the government of the District of Columbia would not have been able to manage permitting requests had they been made.  

District of Columbia leadership was squarely behind “Black Lives Matter” as a principle of racial justice.  It is not the government’s views that are in issue, the D.C. Circuit has observed, but its actions regarding others’ speech.

During the summer of 2020, no individual or entity was cited by the D.C. government for any production of the statement “Black Lives Matter” anywhere in the city. 

That same summer, The Frederick Douglass Foundation, concerned with the perceived threat posed by abortion to the African American community, applied for and was granted a permit to assemble.  The foundation sought to proclaim publicly the message “Black Pre-Born Lives Matter.”  When foundation representatives arrived at their chosen site to rally, and to place their message on the sidewalk, they were prohibited from doing so by D.C. police, and were charged with violation of the city’s defacement ordinance. 

The Frederick Douglass Foundation (‘foundation”) brought suit against the District of Columbia alleging several constitutional violations, the most significant of which for purposes of the recent review by the D.C. Circuit Court of Appeals, was that the selective enforcement of the district’s public defacement law was constitutionally impermissible viewpoint discrimination.  

The D.C. Circuit has agreed with the foundation and remanded the case for further proceedings. 

Because notions of selective enforcement and prosecutorial discretion concern core government functions, those decisions will rarely be disturbed absent a demonstration of constitutional violation, the appellate court has reiterated.

In this case, the court wrote, the foundation must demonstrate that it stands on equal footing with others against whom no enforcement action was taken, a standard which the court concluded was met, where no proponents of “Black Lives Matter” were charged while the foundation was charged.

The constitutional violation was squarely presented, as well, as the appellate court noted:

“The government may not play favorites in a public forum—permitting some messages and prohibiting others.”  Slip opinion at 24. 

It is clearly established that government inhibition of speech in a public forum because a point of view is disfavored is “poison.” Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (Alito, J., concurring).  Slip opinion at 20.  

Most recently, the D.C. Circuit has observed: “[G]overnment favoritism in public debate is so pernicious to liberty and democratic decisionmaking” that viewpoint discrimination will almost always be “rendered unconstitutional.” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 337 (D.C. Cir. 2018) (Wilkins, J.,concurring).  Slip opinion at 21.

The government of the District of Columbia largely concedes the First Amendment violation, but has alleged that the government must have a bad motive for its selective enforcement, essentially engraving a Fifth Amendment equal protection qualification on the First Amendment.  

No such motive is needed, the D.C. Circuit has concluded.  Slip opinion at 25.  Similarly, Fourteenth Amendment selective enforcement cases need not be imported so as to apply to all First Amendment selective enforcement claims, for  “[t]he First Amendment and equal protection standards are conceptually and doctrinally distinct.”  Slip opinion at 27. 

Moreover, as the foundation had alleged violation of 42 U.S.C. Section 1983, the foundation has been held to have met the standards enunciated in Monell v. Department of Social Services, 436 U.S. 658 (1978), by showing, at least sufficiently to withstand dismissal, that the enforcement at issue was “pursuant to official municipal policy.” 

The D.C. Circuit observed that “Black Lives Matter” statements were posted without interference throughout the city and without the necessity for permitting.  The foundation, on the other hand, applied for and received a permit, addressed a letter to the Mayor concerning painting on the sidewalk.   The foundation received no response from the Mayor, yet on the day of the rally the foundation’s protestors were greeted by six D.C. Police cars.  

This much suffices to give rise to an inference that policymakers were involved in the selective  enforcement of the law, as the appellate panel observed:  “…not a single person was arrested for numerous and clear violations of the defacement ordinance…[t]he unvarying non-enforcement, against large and small acts of defacement, over a period of weeks, was “persistent and widespread” and so plausibly constituted a custom or policy for Monell liability.  Slip opinion at 35-37.  

The court has entered an order directing withholding of its mandate until seven days after any timely filed petition for rehearing or petition for rehearing en banc, without prejudice to the right of any party to request expedition of the mandate for good cause shown. 

2023 08 15 FDF v DC Opinion

2023 08 15 Mandate Withheld

 

 

Posted on by justlawfulblog

Fifth Circuit Issues Stay of Injunction Precluding Federal Interference with Social Media Platforms Pending August 10 Hearing

Missouri, et al. v. Biden, et al., No. 23-30445 (5th Cir.) Unpublished Order, July 14, 2023; Missouri, et al. v. Biden, et al., 22-cv-01213 (W.D. La.) Judgment on Motion to Stay, July 10, 2023.

On Monday, July 10, 2023, the U.S. District Court for the Western District of Louisiana denied the federal government’s motion to stay the court’s July 4th, 2023 Order forbidding the executive branch from interfering in the workings of social media platforms, particularly as the state petitioners had, in the court’s view, showed a substantial likelihood of success on the merits of the state’s claim that the government’s directives and threats to social media concerning postings and comments were violations of the First Amendment to the United States Constitution.

The federal trial court’s July 10th Memorandum Ruling on Motion to Stay provided guidance to the executive branch, agencies, and officials in response to complaints that the defendants did not know what could be said or not said. The trial court offered examples of government conduct the court believed would, if established as fact, violte the First Amendment. Moreover, to dispel any doubt, the trial court narrowed its earlier order to indicate that the compliance with the court’s order would be governed by United States Supreme Court jurisprudence concerning constitutionally “protected speech.”

By Friday, July 14, 2023, the United States Court of Appeals for the Fifth Circuit stepped in to stay the federal district court’s injunction pending an August 10, 2023 hearing before the Fifth Circuit on the Biden administration’s emergency motion to stay the district court’s injunction.

The Fifth Circuit has ordered the government appellants to brief their emergency motion for relief from the stay by July 5, 2023; state appellees are to respond by August 4, 2023, and the appellate government shall respond on August 8, 2023.

The upcoming oral argument may be heard through the Fifth Circuit’s site at Fifth Circuit Oral Argument Information. Thereafter the audio will be available at the Fifth Circuit’s site at Fifth Circuit Oral Argument Recordings or Fifth Circuit Oral Argument Recordings.

In its emergency appeal to the Fifth Circuit, the Biden administration argues that it is unable to communicate with the public because of the trial court’s injunction. In its denial of the government’s motion to stay the July 4th injunction, the trial court noted that the injunction in no way interferes with government speech but rather precludes the government from interfering with the speech and speech related activities of social media platforms and those who access those platforms in order to speak.

The government argues that there is no First Amendment violation when the government requests — but does not coerce or threaten — an intermediary to not carry third party content.

General pressure brought to bear o intermediaries such as the social media platforms is no First Amendment violation, the Biden administration asserts: only coercion directly related to the specific conduct that is the subject of the complaint may be problematic.

The mere mention of harm that might befall the social media entities through efforts to amend the Communications Decency Act or to launch antitrust actions is of no moment, the Biden administration argues. Any potential action could have a benefit or detriment to any entity General statements about possible government actions “cannot transform every request that any government actor makes into a coercive threat.” Appellant’s Emergency Motion at 12.

The government also complains that the district court erred because the examples relied upon were “plucked out of context.” Id.

The government appellants submit that there is no problem with the government asking that social media posts or accounts be removed or shut down, provided there is no coercion. Appellant’s Emergency Motion at 13.

The government argues that the trial court misunderstood what “significant encouragement” meant in case law. “Significant encouragement” is not a lesser degree of coercion, appellants argue, but rather describes the opposite of negative coercion. Appellant’s Emergency Motion at 13 – 14.

The Biden administration likens itself to ordinary citizens who may point out or flag content for review. Such requests cannot be transformed into joint participation, as the government did nothing to enhance the powers of the social media sites.

The government suggests that if the social media companies were state actors, relief against them ought to have been sough directly. Appellant’s Emergency Motion at 15.

The government points to the Supreme Court’s caution against expansive theories concerning state action that would erode the capacity of private entities to direct its speech, and hobble private actors with First Amendment constraints. Id.

The government also argues that there is no need for an injunction as there is no irreparable harm to the plaintiffs, as all of the plaintiffs’ claims against the government are moot, and there is no evidence that there is any threat of imminent harm to plaintiffs. Moreover, the trial court’s injunction sweeps in so many people and agencies that it creates an enormous and unmanageable burden. Appellant’s Emergency Motion at 16 – 17.

The government submits that extending injunctive relief to include agencies and individuals beyond the acts and actors supporting the complaint for injunctive relief is overly broad to the point that its extension can be seen as an abuse of the trial court’s discretion.

Moreover, the order awarding injunctive relief is not specific enough to permit the government to comprehend it or to comply. Vague directives to avoid “‘urging, encouraging, pressuring, or inducing’” social-media platforms “in any manner” to moderate their content” make it impossible to discern the scope of precluded actions. Appellant’s Emergency Motion at 2, 18 – 19.

The government asserts that the government is of such significance that constrain to public officials in the execution of their duties would impair them in their ability to do their work. Public confidence in the government will suffer as a result.

Equally importantly, the Biden administration submits, a judicial injunction of the executive branch carries with it separation of powers questions.

The government has supported its emergency request for a stay of the district court’s injunction with more than two thousand pages of exhibits.

2023 07 14 Correspondence from 5th Circuit

2023 07 14 Correspondence from 5th Circuit Expedited Schedule

2023 07 14 Correspondence from 5th Circuit to Counsel Scheduling Hearing

2023 07 14 5th Circuit Order re Expedition and Administrative Stay

EMERGENCY MOTION UNDER CIRCUIT RULE 27.3 FOR A STAY PENDING APPEAL

EXHIBITS TO APPELLANTS’ EMERGENCY MOTION UNDER CIRCUIT RULE 27.3 FOR A STAY PENDING APPEAL

2023 07 10 Judgment on Motion for Stay U.S.D.C. (W.D. La.)

2023 07 10 Memorandum Ruling on Motion to Stay U.S.D.C. (W.D. La.)

Missouri v Biden 22-cv-1213 Memorandum Ruling on Request for Preliminary Injunction U.S.D.C. (W.D. La.) July 4 2023

 

Posted on by justlawfulblog

Supreme Court Nixes Scrooge Approach to Employee Religious Accommodations

Groff v. DeJoy, Postmaster General, No. 22-174. June 29, 2023.

“You’ll want all day to-morrow, I suppose?” said Scrooge.
“If quite convenient, sir.”
“It’s not convenient,” said Scrooge, “and it’s not fair. 

Dickens, A Christmas Carol.

Employers must accommodate employees’ religious practices unless doing so would impose an “undue hardship” on business, a term which seems to have fallen by the wayside during the more than 40 years since a Supreme Court decision remarked that more than a “de minimus” (minimal) burden on business operations could excuse refusal to grant an employee a religious exemption.  Trans World Airlines v. Hardison, 432 U. S. 63 at 84 (1977).

For some time courts feared that employment policies that favored religious accommodations would offend the Establishment Clause, but as the “de minimus” burden supplanted the “undue hardship” standard, religiously observant persons, particularly those of minority faiths, found it difficult to enter into or to remain employed without setting aside beliefs in service of labor, itself offensive to sincerely held beliefs.

Plaintiff Groff had already begun employment with the United States Postal Service (USPS) when the Postal Service contracted with Amazon for Sunday and holiday deliveries.  USPS drew on employees from specific locations and regional hubs, allocating assignments by employment status.  Groff requested and was granted a transfer to a location where Sunday work was not required, yet not long thereafter, it was.  

Other employees filled in for Groff, who was progressively disciplined for refusal to work on Sundays.

Groff resigned and sued.

The trial and, subsequently, the appellate court found that the “de minimus” standard could be met in Groff’s case because of the scheduling adjustments needed to be made, which adjustments imposed on others.  Groff v DeJoy, 35 F. 4th 162 (3rd Cir.2022).

“Undue hardship” language does not appear in Title VII of the Civil Rights Act of 1964, but was added to EEOC regulations in 1968.  29 C.F.R. 1605.1.  Early decisions observed that Establishment Clause concerns would be raised were employers found to accede to employees’ religious practices, prompting revision to Title VII in 1972 to include “undue hardship.”  42 U.S.C. Section 2000e(j) (1970 ed., Section II). 

TWA v. Hardison, supra, came before the U.S. Supreme Court in between statutory and regulatory reform. 

At that time, employee issues were thought to conflict with the Establishment Clause’s preclusion of laws which had a principal or primary purpose of advancing religion, such as by compelling employers to accommodate employee religious interests.  

The Court in Hardison  sidestepped Establishment Clause issues in favor of analysis of deprivation of seniority rights, concluding that accommodating religious rights did not include deprivation of seniority rights. As adherence to seniority rights would be disruptive in that case, the Court concluded religious accommodation was not required, particularly where, if volunteers would not step up, being short handed would affect the employer’s central mission.

In Groff, the Supreme Court observed that ‘de minimus’ as mentioned in Hardison was never intended to be so important as to supplant the undue hardship standard, but this appears to have occurred after years of being pressed into service in religious accommodation cases. The actual value of the “de minimus” comment was not apparent, even within Hardison, the Court has now observed.

Requiring no more than a “de minimus” disruption of business to justify denial of employee requests for religious accommodations facilitiates such denieals, particularly where religious minorities are concerned.

Eve while the EEOC has construed “de minimus” costs to exclude administrative costs such as scheduling, courts have overlooked that guidance and relied on such costs to rule i favor of employers.

In Groff, the Supreme Court has agreed with the position of the Solicitor General that the “de minimus” language cannot be used to obscure the more significant standard requiring that an employers’ hardship must be substantial if accommodation may be denied without violating employees’ rights.

“Substantial” hardship, the Court has now concluded, requires an overall context, fact based analysis.

If the language of Title VII requires that accommodations are to be permitted absent “undue hardship,” this means more than “a mere burden,” which would allow employers to avoid accommodations based on additional costs. Adding thereto the “undue” modifier, an employer must pint to ‘excessive’ or ‘unjustifiable’ measures required to accommodate religious beliefs in order to avoid violating Title VII.

Clearly this parsing of “undue hardship” reveals that more than “de minimus” burdens are involved.

The Court in Groff declined to choose between the new rules proffer by the petitioner, holding instead that an employer bears the burden of demonstrating that permitting accommodation wound result in substantial costs relative to the employers business, bearing in mind that all relevant factors and the practical impact of accommodation bust be born in mind. Slip op. at 18.

The Court declined to adopt EEOC guidance notwithstanding its recognition of its value and declined to adopt standards derived from Americans with Disabilities Act cases.

As guidance, the Supreme Court in Groff has announced that it is an employer’s, not an employee’s, burden that is to be examined with respect to accommodations, but that would include burdens on other employees which in the aggregate affect business. An accommodation per se is not material to the undue hardship inquiry nor is dislike of religion or religious practices.

The Court stressed that accommodation not the reasonableness of the request to accommodate is the lodestar, for to hold otherwise would result in denials of accommodation where only one measure would cause hardship where others would not.

Justice Sotomayor, with Justice Jackson, in concurrence have observed that the Court’s refusal to overturn Hardison, to craft a new standard is significant and apt, as stare decisis is of significant importance in statutory cases and particularly as Congress has declined multiple opportunities to refine statutory language.

Groff v. Dejoy, 22-174 Opinion June 29, 2023

Posted on by justlawfulblog

“Arguably the most massive attack on free speech in United States’ history.” Federal judge forbids Biden administration and officials from interference with social media platforms’ activities.

Missouri v. Biden, No. 22-cv-1213 (W.D. La.) July 4, 2023. Memorandum Ruling on Request for Preliminary Injunction and Order.

Today the United States District Court in the Western District of Louisiana found that during the Covid-19 pandemic, the Biden administration and its officials appears to have so thoroughly and repeatedly engaged with multiple social media platforms to control content, particularly where such content did not comport with the views of the administration, that the government, having become as one with the social media entities, appears to have engaged in multiple violations of states’ and citizens’ First Amendment rights. Such conduct requires, the court concluded, that the administration be enjoined from contacting social media companies to exercise further any such influence.

The opinion provides close to 100 pages of examples, provided by the plaintiffs, of government contact with social media companies to influence the removal of content, particularly content contrary to the government’s views, to preclude publication by certain disfavored speakers, and to threaten the media companies with adverse consequences should they not conform to the government’s demands.

The opinion opens with reminders of the centrality of speech freedoms to a free society, which are critical to the nation’s survival that the Constitution constrains the government from interfering with speech. It is of no moment whether a view is favorable or unfavorable. Unless excepted from the protections of the First Amendment, speech cannot be suppressed, and particularly not so where the speech is unpleasant or unpopular.

As the Constitution only operates to constrain the government, it would be too clever by far were the government able to corral all the resources of private corporations to accomplish for the government what the government is forbidden to do on its own.

This, the court observed, is what appears to have happened here, and which must be enjoined from occurring again. It is no answer, the court found, that the pandemic is over. Where the damage done by the federal government here is among the worst it has done to the nation in history, further harm must be precluded, through the injunction issued today, until such time as this case is resolved on its merits.

Missouri v Biden 22-cv-1213 July 4 2023 Memorandum Ruling on Request for Preliminary Injunction

Missouri v. Biden, 22-cv-1213 July 4, 2023 Judgment

Posted on by justlawfulblog · 1 Comment

Supreme Court: State May Not Violate Individual’s First Amendment Rights in Enforcement of Rights of Protected Classes: a Clash Between Compelled Speech and Public Accommodations Law Is Resolved in Favor of Proprietor Planning to Offer Custom Designed Products

303 Creative LLC v. Elonis, 21-476, 600 U.S. ____(2023).  June 30, 2023.

Colorado’s “public accommodations” law is intended to inhibit discrimination against protected classes. The law includes a communications component. Colorado’s law sweeps within its ambit almost all enterprises and permits both state and private enforcement.

In this case, web designer Lorie Smith, sole shareholder of 303 Creative LLC, seeks to operate a wedding website design service consistently with her views concerning marriage. 303 Creative LLC represents that it is open to all but seeks to reserve to itself whether it will provide custom design services where creating a product would conflict with Ms. Smith’s beliefs and values.  

Fearing that enforcement of Colorado’s public accommodations law would preclude 303 Creative LLC from operating, pre-enforcement judicial review was sought.

The Supreme Court in 303 Creative LLC reiterates that the First Amendment precludes state interference with speech and associational interests.  The Court’s precedents establish that the state may not compel associations to include those in conflict with their views, and this is so, the Court has opined whether or not others agree with the views.  Both the speech and associational guarantees of the First Amendment include the right to speak and to associate in ways some may find appalling.

State compelled speech cannot stand. Colorado cannot compel speech here, even in service of enforcement of the interests of protected classes, the Court has held.  The original expressions that 303 Creative LLC envisions are pure protected speech in which the state may not interfere. Specifically, the state may not compel 303 Creative LLC to coerce the elimination of views the state disfavors.  

Where Colorado would command that 303 Creative LLC speak as the state wishes or face punishment, Colorado’s commands would violate the First Amendment.

Expansion of state interests cannot cause contraction of First Amendment guarantees.  While recognizing the importance of the public accommodations laws Colorado relies on to justify restricting 303 Creative’s expressive speech, the Court also observes the expansion of the concept of “public accommodation” to include almost all places that are open to the public.  With that expansive conceptualization of public accommodation have come expansive recognition of groups and individuals entitled to prohibitions against discrimination. 

The Court recognizes the merits of such measures but holds in 303 Creative LLC that where the federal Constitution conflicts with state anti-discrimination law, the Constitution controls. 

Like it or not. Whether a voice is unique or particularly attractive to the state for purposes of the state’s messaging is of no moment, the Court notes.

The “incidental” view cannot carry the day. The Court’s majority rejects Colorado’s view that 303 Creative LLC’s speech, if any, is only incidental to routine sales of routine products.  The “incidental” argument fails where 303 Creative LLC  intends to offer original design in its products, tailored to suit clients’ wishes.

Money is of no moment.  The exchange of money for services will not demolish the protection to be afforded to the speech and expression 303 Creative LLC will provide, nor will money serve as a device to open the doors to state management and control of 303 Creative LLC’s existence.  The same is true of the choice of entity – a limited liability company – used to conduct business.

The sun shines on the just and the unjust. Precedent establishes that where the First Amendment protects speech, it does so without regard to whether the speech is favored by the state, or not, or pleasing to others, or not, the majority reiterates.

Public messaging is not a consideration here. The argument that the Constitution does not restrain the government from demanding that literature be made available in public spaces fails because that is not in issue in this case, the majority notes.  

The state may not interfere in rights secured by the federal constitution. Much of the majority opinion is devoted to responding to the ideas of the dissent.  In particular, the majority offers that the dissenting justices’ view that commercial expression of creative design and messaging only “incidentally” burdens speech, thereby requiring the individual to yield to government control in service of antidiscrimination policies is contrary to and indistinguishable from the Court’s precedents.  The majority chides the dissent’s apparent thought that Constitutional guarantees must yield to state control of speech which the state deems good or bad, as such thinking would essentially permit a state to override First Amendment guarantees where the state is so inclined.  

We three disagree.Three justices join in denouncing what they perceive to be a historical first in which proprietors of public business may refuse to serve members of protected classes.  The dissenting justices perceive that the goal of prohibiting discrimination against protected classes must take precedence over incidental speech, or else the recognized harms to the protected classes will persist. The majority’s decision, the dissenting justices argue, will cause civil rights laws to fail of their promise of fair treatment.  

It is the obligation of the government to compel compliance with civil rights laws, the dissenting justices opine.  This is a state power which, the dissent submits, cannot be enjoined by incidental individual speech.

Posted on by justlawfulblog

Interlocutory appeal sought following federal court denial of injunctive relief in middle school t-shirt controversy

L.M. v. Town of Middleborough, et al., U.S.D.C. D. Mass.  Memorandum and Order denying plaintiff’s motion for injunction issued June 16, 2023.  Notice of interlocutory appeal filed June 23, 2023.

Nichols Middle School in Middleborough, Massachusetts celebrates LGBTQ+ interests with messaging, events, and sponsorship of on-site student activities such as a LGBTQ+ club for LGBTQ+ students and allies.

All Nichols Middle School students must abide by a dress code that precludes apparel reflecting “hate” speech or imagery concerning multiple enumerated classes “or any other classification.”  In addition, the code states that whatever else the school determines to be unacceptable will not be allowed.  

One day in early spring of this year, plaintiff L.M. arrived at school wearing a t-shirt reflecting a traditional view of ‘gender.’  School officials, citing unidentified reports of student “upset,” demanded that L.M. remove the t-shirt.  

The school justified its action by stating that L.M.’s t-shirt “targeted” students of a protected class.

In subsequent months, counsel for L.M. requested confirmation that L.M. could wear the t-shirt to school again.  Counsel for the school responded that the t-shirt would be prohibited.

In May, 2023, L.M. appeared in school wearing a t-shirt bearing a “CENSORED” banner which was thought to cover the message of L.M.’s initial t-shirt.  School officials demanded that L.M. remove the t-shirt.  The school day proceeded without incident. 

Two other students wearing the t-shirt were treated similarly.  No student was formally disciplined because of the t-shirt.

This past May L.M. sued the school and its officials, demanding injunctive relief pursuant to 42 U.S.C. Section 1983 for violations of the First and Fourteenth Amendments of the U.S. Constitution, citing viewpoint discrimination and pointing to the overbreadth and vagueness of the school dress code.

The U.S. District Court in Massachusetts denied injunctive relief on June 16, 2023, finding that in the absence of a showing that plaintiff’s would likely succeed on the merits, such relief was not warranted.  Plaintiff’s Notice of Interlocutory Appeal was filed on June 23, 2023. 

Noting that the likelihood of success on the merits is the controlling factor in review for injunctive relief, the court opened its analysis with a recital from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), a VietNam War era Supreme Court decision which acknowledged students’ First Amendment rights, with some limitations, which constitutional interests prohibit schools from forbidding expressions of opinion merely because such views may cause discomfort.  Order at 9, citing Tinker, supra, at 509.   

In reviewing plaintiff’s request, the court noted in matters of restrictions on student speech, the court should defer to school administrators’ positions, if rational.  Order at 10.

The Supreme Court’s acknowledgement of students’ constitutional rights is cabined by the Court’s recognition of school officials’ authority to limit speech which disrupts school, causes substantial disturbance, or which invades the rights of others, as such speech does not enjoy constitutional protections.  Order at 9, citing Tinker, supra, at 513.

Nichols Middle School has not disputed that the t-shirt may be constitutionally protected but justifies its action based on undefined and unenumerated student and staff complaints and because the school concluded that the t-shirt invaded the rights of a protected class.  

The federal court concluded that the school’s acts were within its discretion and were undertaken to protect against the invasion of rights of other students to a “safe educational environment.”  The school acted within its discretion, the court observed, in concluding that the protected class of students have a right to attend school without messaging that “attacks” their identities. Order at 11, citing Tinker, supra, at 508.  

The judge further opined that specific student bullying need not be found, and that a schools’ efforts to ensure safety have been recognized by other courts, citing cases concerning flag displays and obscenity. 

The balance of equities does not favor L.M., the judge observed, because L.M. can wear the t-shirt elsewhere.  By comparison, in the view of the school officials, wearing the t-shirt at school would harm the protected class of students, who would be unable to attend school without harassment, and would cause the school to fail in its obligation to the state to prevent discrimination, bullying and harassment based on gender identify or the school’s obligation to provide a “safe environment” without regard to gender identity.

Because the court had concluded that L.M. would not likely succeed on the merits, the court found that L.M.’s assertion that enjoining unconstitutional acts always serves the public interest falls flat.

Subsequent to the June 16th denial of injunctive relief, plaintiff has filed an interlocutory appeal to the U.S. Court of Appeals for the  First Circuit.  At this writing, no information concerning the interlocutory appeal appears in the public records of the First Circuit. 

Justlawful notes:  It appears that here the federal judge not only deferred to the opinions of school administrators but also adopted those views, which were premised on asserted but unrevealed complaints and a hypothetical view of possible emotional “unsafety” in the future.  In the main, the court’s ruling seems to be grounded in the school administrators’ views that protected class status takes precedence over rights guaranteed by the First and Fourteenth Amendments.  Justlawful wonders how this view, if accurately characterized here, accounts for the “equal” language in the Fourteenth Amendment.  

Justlawful notes as well that Tinker remarked upon, but did not recognize a “right” to be free from messaging that may “attack” a student’s identity, as intimated by the court in L.M.’s case.  Tinker was and is quite clear that speech restrictions must consider material and substantial harm:  

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Independent Community School District, 353 U.S. 503, 508 (1969).

If the school’s view, as adopted by the federal district court, is correct, then identity controls the exercise of all other rights, a result that is not reflected in Tinker.  Tinker recognized that speech that materially intrudes on the rights of others is not constitutionally protected speech.  Tinker, supra, at 513. “Protected class” status is not part of the Tinker analysis.  

There is a position that may be taken that Tinker’s concern with substantial disruption of the “rights of others” meant “all others.”  The emergence of status dominance in consideration of speech interests would seem antithetical to any court’s interest in attending to equality under the law.  

Justlawful recognizes that interlocutory appellate review is only marginally more likely to be afforded than any other interlocutory review, even in the presence of a statutory premise for seeking that review. Calvary Chapel of Bangor v. Mills, 984 F.3d 21 (1st Cir. 2020), cert. denied, 142 S. Ct. 71 (2021).  Regarding immediate review of denial of injunctive relief, courts are nothing if not parsimonious, as they are bound by statute and tradition to be.  

Justlawful is eager to learn of the First Circuit’s acceptance — or not — of this case for immediate review.  Even in the absence of rapid First Circuit consideration, it will be interesting to see how further litigation unfolds, particularly as this case may be seen as laying a foundation for tinkering with Tinker.  

L.M. v. Middleborough Order June 16 2023 (D. Mass.)

Notice of Appeal June 23, 2023

 

 

 

 

Posted on by justlawfulblog

Footloose redux: Federal court in Utah issues mandatory injunction ordering city to permit public drag event

Southern Utah Drag Stars and Mitski Avaloz v. City of Saint George, et al., No. 4:23-cv-00044-DN-PK. Opinion and Injunction entered June 16, 2023; Plaintiff’s election filed June 24, 2023.

The federal court in Utah has ordered the City of Saint George, Utah, to permit Southern Utah Drag Stars to perform publicly, having observed violations of the First and Fourteenth Amendments will cause irreparable harm if a contemplated event does not go forward.

In introducing the court’s extensive review of a series of events and official acts that, absent judicial intervention, would have silenced the Southern Utah Drag Stars in St. George, the court reminded all that governing officials are trustees of the rights of all, not just the rights of those who support them or those interests they concur with. The current case, the court offered, provides an opportunity for all to revisit the principles that made the First Amendment central to the founding of the United States.

The Southern Utah Drag Stars and its founder, Mitski Avaloz, faced a slalom course of rules and regulations not enforced against others when they applied for a permit to perform a public celebration of dance intended to express inclusion of diverse persons and points of view.

When the troupe applied for a permit to hold an event in St. George, the city denied its issuance, citing violation of a rule precluding pre-permitting advertising which had never before been enforced and from which all entities but the Southern Utah Drag Stars were exempted.

The city next declared a six month moratorium on public events permitting.

The contemplated drag event caused great concern among the public, particularly as many feared that children would be exposed to adult entertainment.

Internecine battles erupted between the City Manager, who thought refusal to permit would be unconstitutional, and the City Council, which tended toward agreement with the citizens’ concerns. (Following a forced resignation, the City Manager’s claim for wrongful termination was settled for more than six hundred thousand dollars.)

In reviewing plaintiff’s request for injunctive relief, the court observed that the drag event was not excepted from First Amendment protections by the allegation that the performance would be obscene. Even if a legitimate interest, concern for children could not serve as a justification for forbidding the Southern Utah Drag Stars’ performance, particularly where no evidence had been adduced that children would be impacted by the event.

The federal court found that the city’s theretofore unenforced ordinance precluding pre-permitting advertising imposed prior restraints on speech that were both overly broad and vague. Officials enforcement of the ordinance against plaintiffs but not against others was seen as unlawful discrimination based on both content and viewpoint.

The contemplated preclusion of any performance would clearly cause the plaintiffs to be irreparably harmed, the court concluded.

The record before the court indicated to the judge that the most rare and rigorous relief would be awarded: a mandatory injunction compelling permitting and performance.

A June 30th public Southern Utah Drag Stars event has been planned.

Southern Utah Drag Stars v. City of St. George Injunction June 16, 2023

Southern Utah Drag Stars v. City of St. George Election June 21, 2023

 

Posted on by justlawfulblog

Trump v. Trump:  Former President’s Suit Against Niece for Breach of Settlement Agreement May Proceed, New York Supreme Court Concludes

Donald J. Trump v. Mary L. Trump, The New York Times Company, et al., No. 453299 (N.Y. Sup. Ct.).  Decision and Order on Motion to Dismiss entered June 9,  2023. 

Former president Trump has sued his niece, Mary L. Trump, because, he alleges, she breached a settlement agreement entered with respect to his father’s, and Mary Trump’s grandfather’s estate, which agreement contained provisions precluding publication of information concerning litigation related to the estate.  

It appears that it is not disputed that after some importuning, Mary Trump turned over documents from her attorney’s files that were utilized by the New York Times in publication of an article that indicated that any wealth that Donald J. Trump possesses was inherited and was manipulated through tax evasion. Subsequently Mary Trump published a memoir about her family which included memories of her uncle. 

The former president was unsuccessful in blocking publication of Mary Trump’s book, as an injunction would violate the First Amendment as a prior restraint of speech.

On motion to dismiss, Mary Trump argues that the litigation must be dismissed as anti-SLAPP procedures would prohibit a suit which represents Mary Trump’s participation in public discussion.  

The court concluded that at present the consideration before the court is the confidentiality provisions in the settlement agreement, which is a matter of contract, which may be decided without reference to the anti-SLAPP laws.  This determination, the court cautioned, is limited to the anti-SLAPP defenses and has no bearing on the validity of the claims concerning the confidentiality provisions. 

The court further concluded that no cause of action exists against the New York Times in this matter, as the confidentiality agreement does not bind the New York Times and the New York Times enjoys wide latitude in news gathering even if the party presenting newsworthy information is in violation of any agreement.

The New York Supreme Court rejected Mary Trump’s defense that the absence of a termination date in the confidentiality agreement meant that she could terminate the agreement any time, and thus any provision of information or publication that she engaged in violated no agreement, as no agreement bound her.  Discovery may be had, the court ruled, concerning the intent and meaning of the parties’ entry into a settlement agreement and whether the court could limit the confidentiality agreement as overly broad.  

Moreover, the court rejected the defense that the vagueness of the confidentiality provisions renders them unenforceable, for the language is clear as to assisting in publication of news or a book.  

Any breaches of the confidentiality agreement that would preclude Donald Trump from proceeding against Mary Trump must be examined on the facts, precluding dismissal as a matter of law, the court concluded.  

The argument that the confidentiality provisions violate public policy as the provisions inhibit First Amendment guarantees and the provisions insulate public figures from public discussion also fails, the court found, as individuals are free to contract away First Amendment rights.  Dismissal on the basis of ‘public policy’ is not indicated where Mary Trump received money and was represented by counsel in the proceedings.  

The denial of a restraining order that would have prohibited publication does not mean that damages for publication may not be sought.  The issue before the court is the nature of the confidentiality provisions, any breach of those provisions, if valid, and whether any breaches damaged the former president. 

The court has dismissed Mary Trump’s good faith and unjust enrichment claims as the former is redundant and the latter cannot be asserted where, as where, the existence and overall validity of a contract has been established.  

Trump v Trump

Posted on by justlawfulblog

Expansive and Extensive Exercise of Emergency Powers Threatens Freedoms, Justice Gorsuch Cautions

Arizona v. Secretary of Homeland Security, No. 22-592. Statement accompaying Order remanding for reversal motion to intervene issued May 18, 2023.

During the Covid-19 pandemic, the Executive Branch issued orders — the Title 42 Orders — which limited entry into the United States as a defense against the spread of contagious disease.

When those orders lapsed of their own accord, states concerned with border issues petitioned to have the orders remain in effect, complaining that the lapse of the orders violated the Administrative Procedures Act, as notice and the opportunity to present comments was not afforded prior to the dissolution of the orders.

In contrast, a class action of asylees sought and obtained universal vacatur of the Title 42 orders, arguing that there never existed any authority to issue the orders.

The concerned states sought to intervene in the class action brought by asylees. 

The Court of Appeals for the District of Columbia Circuit affirmed the trial court’s denial of the state’s motion to intervene.

The states petitioned the United States, which granted review, the result of which was that the Title 42 Orders remained in effect until the legislative and executive branches declared that the Covid-19 emergency to be over.

All this rendered both cases in litigation moot, but this result did not sit well with Justice Gorsuch.

In a statement accompanying the order of remand, Justice Gorsuch remarked of the grave abrogations of freedoms that governments large and small visited upon the population during the “Covid-19 pandemic” under the rubric of ’emergency’ measures because of a perceived threat to public health.

The threat to democratic rule was and is equally if not more grave, Justice Gorsuch opined, for the capacity to usurp individual rights by virtue of emergency orders has been established.  Notwithstanding that some measures did not survive challenge, the disruption and diminution, if not denial, of individual and economic freedoms has been substantial.  The capacity to compel conformity with government edicts by exploiting fear has not gone unnoticed.  The ability of federal judges in one jurisdiction to issue orders effective throughout the nation — “cosmic” injunctions — is itself an expansion of power that provokes concern.

21-592 Arizona v. Mayorkas (05_08_2023)

Posted on by justlawfulblog

Civility and Its Discontents: Town Policy Cannot Squelch Assembly and Speech, Massachusetts Supreme Judicial Court Concludes

Barron, et al. v. Kolenda, No. SJC-13284 (March 7, 2023).

Massachusetts highest court recently revisited the Commonwealth’s history without a view toward revisions but with great regard for the ideals of self-governance that gave rise to the state constitution’s guarantees of rights of assembly and speech.  To this day those goals persist, the court found, such that historically raucous and not infrequently personal public gatherings cannot be supplanted by codes of ‘civility’ which would preclude criticism of public officials. 

Massachusetts state law requires its municipalities and towns to conduct business openly, leaving it to the cities and towns to develop rules for public meetings.  The Town of Southborough enacted a policy demanding ‘civility’ in all public speech and forbidding rude criticisms of town officials.

Townsperson Louise Barron, upset with the state level determinations that the town frequently violated the open meeting policies, was open about her feelings before the select board, subsequent to which she was shouted at, called “disgusting,” and threatened with removal by a member of the board.  Exchanges of “Hitler” epithets were observed.

Barron challenged the board’s policy and action, asserting that it violated her rights of assembly and speech.  The Supreme Judicial Court has agreed, finding that both provisions of the state Declaration of Rights ensure public participation in governance free from fear of being silenced or reprisal.  

Those guarantees are steeped in traditions born in the days that the colonies of the new world sought to extricate themselves from the authority of monarchy and install among themselves rights of self governance, such as speech and assembly, which are not lightly to be disturbed absent a compelling state interest and a narrow means of supporting that interest.

Political speech such as that at town meetings is core political speech which cannot be censored — or censured — because it may precipitate discomfort or bad feelings.  As the town’s civility policy directly interfered with the exercise of assembly and petition rights, and as it was so broad and vague as to chill speech, the Supreme Judicial Court found it to be facially unconstitutional.  The policy was both content based — forbidding criticisms of officials — and viewpoint based — forbidding criticism while allowing praise, and, as such, wholly defective.

In addition to striking down the ‘civility’ policy, the Supreme Judicial Court stripped the town officials of qualified immunity, observing that the rights in question were well established and had been interfered with by threats and coercion.  

The case was remanded for further proceedings.  

Barron v. Kolenda, SJC-13284 (March 7, 2023)

 

 

Posted on by justlawfulblog

Pro-Life Cries of “Murder” Are Core Political Speech, Texas Supreme Court Holds

The Lilith Fund for Reproductive Equity v. Dickson and Right to Life East Texas, No. 21-0978 and Dickson and Right to Life East Texas v. Afiya Center and East Texas Access Fund, No. 21-1039. 

Two Texas Courts of Appeals held divergent views of whether incendiary exchanges between pro-life and pro-choice groups could be actionable in defamation.  The Supreme Court of Texas has held that these advocates’ statements are not allegations of fact, but of opinion concerning matters of law and policy, making the rhetoric core political speech, protected by both the Texas and U.S. Constitutions.  As such, they are not actionable in defamation, as permitting such claims to go forward would chill protected speech.

The court noted that the term “murder” is freely employed in several social justice arenas, such as war, capital punishment, and animal rights.  

With this question resolved, post-Dobbs‘ ‘debates’ will no doubt rage on, in Texas and likely elsewhere, with no apparent end in sight.

Lilith Fund for Reproductive Equity v. Dickson, et al.

Posted on by justlawfulblog

But Is It Art?  New Hampshire Bakery Resists Town’s Demand to Take Down Donut Mural

Young, et al. v. Town of Conway, No. 23-cv-00070 (N.H.).

Justlawful observation:  one would not be entirely wrong to suspect that bakers are emerging as their own phalanx of champions of constitutional guarantees.  Within recent memory, Gibson’s Bakery challenged Oberlin College in defamation, and prevailed.  Masterpiece Cakeshop continues a sisyphean trek up and down the court house ladders in a quest to find the proper and respectful balance between competing constitutional claims. 

Live Free or Die: Currently a New Hampshire baker asserts he is being damaged because the Town of Conway wants to force him to tear down a huge mural depicting donuts and pastries which was painted for the bakery by local art students.

The town asserts that the mural, which has attracted much favorable attention, is a commercial sign that violates the town’s signage code.

The baker asserts that the town’s interference and demand for removal is content and speaker based discrimination, which is presumptively unconstitutional, and which the town cannot justify.  

Perhaps sensing that the town may be doing itself no favors by treading on the baker and donut art aficionados, the town has stipulated that it will take no action to remove the mural pending resolution of the case on the merits.   

The town’s response to the complaint filed on January 31, 2023, has not yet been submitted. 

Young v. Town of Conway, 23-cv-00070 (N.H.) Verified Complaint

Young v. Town of Conway, 23-cv-00070 (N.H.) Plaintiff’s Memorandum in Support of TRO

imageedit_13_4186924744

Photograph courtesy of Institute for Justice, https://ij.org

Posted on by justlawfulblog

Context Carries the Day:  Summary Judgment Reversed in Physician’s Defamation Case

Robinson v. Williams and East Carolina University, et al., No. 20-1636 (4th Cir.) February 1, 2023.

After a disastrous surgery, plaintiff, a cardiothoracic surgeon, sued defendant physician Williams because he said to others that plaintiff misread or failed to recognize the patient’s echocardiogram findings.  

The trial court found that because plaintiff admitted that she did not read the echocardiograms at all, that defendant’s statements could not be false, and that, accordingly, the statements could not be actionable. 

The U.S. Court of Appeals for the Fourth Circuit observed that the ‘misreading’ allegations would presuppose that there had been a reading in the first place. 

From this the context must be examined – the implication that the plaintiff lacked skill to interpret the echocardiogram or that she failed to observe the standard of care by failing to read the test results at all.    

As professionals could disagree about these matters which clearly implicate plaintiffs’ professional knowledge and conduct, the federal appellate court found the statements could be actionable, particularly as plaintiff was terminated from her employment and cannot find new employment.

Summary judgment has been vacated and the case remanded for further proceedings. 

Robinson v. Williams, et al., No. 20-1636 (4th Cir.) February 1, 2023

Posted on by justlawfulblog

Criminal-Civil Distinction Matters Less Than Whether a Penalty is Punishment:  Justice Gorsuch Would Grant Review of Million Dollar Tax Penalty

Toth v. United States, No. 22-177.  Certiorari denied January 23, 2023.  Gorsuch, J. dissents.

Millions of dollars in unpaid penalties were assessed against a naturalized citizen who professed that she was unaware of the requirement that her Swiss bank account needed to be reported to the U.S. tax authorities.  Justice Gorsuch has dissented from denial of certiorari, observing that whether a governmental demand for payment is criminal or civil is of little merit if the penalty is in fact punishment.

Refusal to address this question only incentivizes revenue generating processes, Justice Gorsuch noted.  Where it is not certain that these activities comport with the Eighth Amendment, certiorari ought to have been granted, in his view. 

22-177 Toth v. United States (01_23_2023)

Posted on by justlawfulblog

Certiorari Relief Denied Now, but Grant Will Come if Second Circuit Continues to Summarily Affirm Injunctive Orders

Antonyuk v. Superintendent of New York State Police, No. 22A557, 598 U.S. ___(2023).  January 11, 2023.

Justice Alito and Justice Thomas warn the Second Circuit that its practice of summarily affirming trial court injunctions – even if leavened by issuing expedited briefing orders – must stop:  if it does not, the next petition for Supreme Court review will be granted.

22A557 Antonyuk v. Nigrelli (01_11_2023)

 

Posted on by justlawfulblog

Constitutional Cake Wars Continue in Colorado: Baker Found to Have Discriminated Against Transgender Customer

Scardina v. Masterpiece Cakeshop and Jack Phillips, No. 21CA1142 (Colo. App.). Opinion January 26, 2023.

On the day that the U.S. Supreme Court granted certiorari in a case involving Masterpiece Cakeshop and Jack Phillips, petitioner Scardina telephoned the bakery to request a pink cake with blue frosting.  Having secured Phillips’ spouse’s agreement to provide the cake, Scardina stated that the cake was inteded to celebrarte gender transition.

The cake shop and its proprietor then declined to provide the cake. Expressive and religious reasons were cited.

Scardina sued, citing violation of the Colorado Civil Rights Act.

The Colorado Civil Rights Commission settled with Masterpiece Cakeshop and Phillips.  After procedural maneuvers of note only to attorneys, Scardina prevailed in court, and the Colorado Court of Appeals has upheld the trial court’s conclusions.

The Court of Appeals observed Masterpiece Cakeshop’s and Phillips’ refusal to provide the pink cake with blue frosting, because it bore no written message, could not fall within the “offensiveness rule,” a loosely constructed, somewhat doubtful, secular corollary to religious objections.  

The court rejected the compelled speech challenge, observing that not all expressive conduct is protected.  Here, where the cake that admittedly have been provided to others but for the customer’s wants, the court found it impossible to conclude that protected expression was in issue.

The bakery’s and the baker’s objection to being tied to an expression also failed, as the court likened the provision of the cake, even if it could be seen as carrying a message, carried no more connection to a message than would attach to a person who provided balloons for a birthday party.  

While recognizing the Phillips’ deep religious convictions, the Colorado Court of Appeals found that those convictions must yield where a neutral statute of general applicability, like the anti-discrimination law, is involved, and where no additional constitutional right, as intimated in Employment Division v. 0 Smith, 494 U.S. 872 (1990) could be found, no more heightened analysis would be needed.

The appellate court refused to hear concerns about bias in the proceedings below.  Although there were some minor issues concerning pronouns, the appellate court could find no way in which the bakery or the baker had been treated less than civilly.

Scardina v Masterpiece Cakeshop Inc 2023 COA 8 Colo App 2023

 

Posted on by justlawfulblog

“Doctor! Doctor! Give me the news!” Federal court in California says doctors can give patients news without threat of state sanctions for “misinformation,” at least for now.

Hoeg, et al. v. Newsom, 22-cv-1980 (E.D. Cal.); Hoang, et al. v. Attorney General, 22-cv-0214 (E.D. Cal). Order and opinion issued January 25, 2023.

California doctors have alleged that California elected and appointed officials may violate rights protected through 42 U.S.C. Section 1983 by threatening enforcement of a California statute prohibiting the provision of ‘misinformation’ or ‘disinformation’ relating to scientific knowledge and standards, particularly where terms are vague and standards are susceptible of rapid change.

California enacted legislation prohibiting physician dissemination of “misinformation,” defined as false information contrary to scientific consensus.  The statute also prohibits intentional dissemination of misinformation, characterized as “disinformation.”  Both such offenses must occur in the context of the patient-physician relationship.  Violations re considered unprofessional conduct subject to disciplinary action.

The federal district court for the Eastern District of California has observed that plaintiffs’ claims implicate First Amendment “chilling effect” concerns, favoring standing, particularly where self-censorship is implicated.

Standing is liberally construed where statutory vagueness implicates First Amendment interests, as the Supreme Court has held that “the Constitution protects the right to receive information and ideas…”  (citation omitted).

This means that even if a statute does not apply to a person, if the statute interfrers with a right to receive information, standing to challenge that law exists.

Because the members of the associational plaintiffs would have standing to sue individually, the associations have standing.

Unconstitutional vagueness may be found where a statute leaves a speaker in doubt as to what is prohibited, thereby inhibiting speech.

The California statutory scheme provides that violation of the dissemination of misinformation/disinformation standards could be found where the information in issue could be outside “contemporary scientific consensus,” but the court found those terms to be vague as lacking in established meaning, leaving providers to guess what is prohibited.  This is especially so, the court observed, where “scientific consensus” is not fixed but is rapidly changing, subjecting providers to all the more heightened guesswork.

The court noted that precedent indicates that “the changing nature of a medical term’s meaning is evidence of vagueness.” Slip op. at 24. Forbes v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000).  

While no objective meaning of a statute’s term can be found, as is observed of “misinformation,” it is likely that a vagueness challenge will prove successful.

The inclusion of reference to a “standard of care” compounds confusion rather then providing clarification that might save the statute from a vagueness challenge.  Slip op. 15 26, n. 9.  Even if plausibly comprehensible, the statute improperly conflates advice, information and treatment.  Id.

The falsity required to find a disinformation violation is likewise constitutionally defective, the court observed, where what is “settled” is rarely so.

This separate ‘falsity’ element of the statute, even if it were to offer truthfulness as a defense, fails where “drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible,” the court has opined.  This is particularly so, the court noted, where evidence and inquiry is rapidly changing, as in pandemic conditions.  Slip op. at 27.

Any limiting construction proffered fails to save the statute, the court has observed, as the proffered construction would require rewriting the statute.

In granting a preliminary inunction against enforcement of the statute pending resolution on the merits, the court cautioned that its ruling was confined only to the Section 1983 vagueness challenge, and was not intended to reach the merits of the First Amendment claims.

Justlawful note:  If the court did not reach the First Amendment issues here, it is not unfair to say the court came fairly close to so doing.  The court may have its own reasons for guardedness: perhaps it was to dissuade an interlocutory appeal.

Justlawful Copyright Note:  Justlawful very much hopes that Robert Palmer, if he were alive, would consider a citation to his 1978 recording, written by Moon Martin, to be a compliment rather than an infringement,.  Should that hope fail, Justlawful would argue that this limited reference to a well known lyric would be fair use.

Hoeg, et al. v. Newsom and Hoang, et al. v. Attorney General Opinion January 25, 2023

Posted on by justlawfulblog

California’s Public Access Law Requires Access to Professor’s Emails About Articles Later Withdrawn or Corrected

Iloh v. Regents of the University of California and The Center for Scientific Integrity, No. G060856.  Opinion January 13, 2023.

A science watchdog entity submitted a public records request to the University of California after the departure of a professor whose work had been retracted or corrected after publication.  The departed professor failed to obtain injunctive relief, having argued that the records were not public records subject to disclosure, notwithstanding that a university email address was used in discussions about publication. 

The California Court of Appeals has affirmed the denial of injunctive relief.

Ms. Iloh argued that she acted on her own behalf in subjecting material for publication.  

The appellate court observed that California’s Public Records Act compels disclosure of public records unless exempted.  Parties may bring challenges under the act to compel disclosure but parties seeking to prevent disclosure, as here, must initiate an independent investigation to demonstrate that the government lacks discretion to disclose the records in issue.  

The first inquiry is whether the documents in issue are public records, for if they are not, statutory claims do not apply.

To be a public record, a document must be related to the conduct of public business and be prepared, owned, used or retained by the government.

The use of a public entity’s email system makes the correspondence in issue owned, used or retained by a public entity.

In this case, the professor’s publications were related to and in furtherance of her position at a public university, making them part of the “public’s business.”  

Although the appellate court acknowledged Iloh’s ‘catchall” interest in research integrity and freedom, the post-publication documents in issue do not merit the protections afforded pre-publication exchanges, particularly where public interest in academic integrity would favor disclosure.  

The appellate court declined to transform the catchall exemption into one which would create a pre- and post- publication bright line rule:  each case must be evaluated independently.

The Court of Appeals, like the trial court, could not find the personnel records exemption applicable, particularly where correspondence was in issue and where, even if some documents made their wa to Iloh’s personnel file, the public interest in disclosure outweighs any claim to privacy Iloh asserts with respect to public records.

The appellate court declined to reverse the trial court order because the trial court relied on CPRA and not “reverse” CPRA cases, reasoning that the trial court’s conclusion may be sustained if it can be seen as correct on any theory.  As the court’s reasons for denial of injunctive relief were sound, there is no abuse of discretion, and the trial court’s order is upheld. 

Iloh v. Univerity of California, No. G060856. California Court of Appeal, January 13, 2023.

Posted on by justlawfulblog

Faith in the Workplace:  Supreme Court to Consider Standard Employer Must Meet Concerning Employee Requests for Religious Accommodation, as Well as Whether Burdens on Co-Workers May Meet that Standard 

Groff v. DeJoy, No. 22-174.  Certiorari granted January 12, 2023.

Forty five years ago, the Supreme Court opined that an employer need not accommodate and employee’s religious practices where doing so would involve more than a de minimus cost to the employer, as so doing would meet the “undue hardship standard provided in Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. Sections 2000d-2(a)(1),(2).    Trans World Airlines v. Hardison, 432 U.S. 63 (1977).  

The Court will now consider whether the Trans World Airlines v. Hardison standard is met where hardship falls on a claimant’s co-workers rather than the employer and the employer’s business. 

The breadth of prohibitions on discrimination because of religion contemplated by Title VII of the Civil Rights Act is not inconsiderable, as the statute provides that “all aspects of religious observances and practices, as well as belief…” must be accommodated unless to do so would impose an undue hardship on an employers’ business.

Petitioner began working for the United States Postal Service i(USPS) in 2012, and resigned in 2019.  Plaintiff observes a Christian Sabbath on Sundays, which precludes work. 

A contractual arrangement for weekend package delivery between the USPS and Amazon.com, Inc. created an increased demand for weekend postal workers.

Groff was informed that he would have to work on Sundays or lose his job.  Groff refused but offered to work extra on other days.  The employer agreed to elicit volunteers to work Sundays instead of Groff.  The arrangement worked imperfectly for two years.

USPS declined to continue to accommodate Groff during non-peak shifts on Sundays, applying progressive discipline when Groff refused to work.  During peak periods, Groff’s accommodation created additional work for other employees.

With some disagreement, the Third Circuit Court of Appeals concluded that asking the USPS to exempt Groff from Sunday work would create an undue burden on the USPS.  

Advocates for Groff argue that the “more than de minimis” TWA v. Hardison standard weakens prohibitions against religious discrimination, effectively nullifying them and placing religious exemptions on a different footing from other other rights protected by Title VII.

The United States Postmaster General opposes restructuring of religious accommodations through this case, arguing that Title VII is silent respecting “undue hardship,” making the TWA v. Hardison decision sound.

The Postmaster General points to financial necessity as the impetus for agreeing to delivery service for Amazon.  Other employees were directly burdened when they had to work when Groff did not.  

The Postmaster General has submitted that the “undue burden” standard would be met under any circumstances in this case, particularly where acceding to Groff’s demands would violate both the USPS’s agreements with Amazon.com and with the postal workers’ union.  

No briefing order has been issued nor has a date for oral argument been set. 

Groff v. DeJoy, Petition for Certiorari

Groff v. DeJoy Opposition to Certiorari

Groff v. DeJoy, Reply of Petitioner

Posted on by justlawfulblog

Supreme Court Will Review the Nature of True Threats and First Amendment Protections 

Counterman v. Colorado,  No. 22-138.  Certiorari granted January 13, 2023.

The Supreme Court has decided to review a question left unanswered in Elonis v. United States, No. 13-983, 575 U.S. 723 (2015).  If “true threats” are not protected by the First Amendment, then what, if any, state of mind must be present to remove such protections and thereby permit prosecution for stalking or other speech-related matters. 

According to petitioner Counterman, confusion surrounding the standard that existed pre-Elonis has, consistently with a prediction from Justice Alito, exploded post-Elonis, leaving nine federal circuits and eighteen states/jurisdictions requiring objectivity based on what a reasonable hearer would think of the words, with two federal circuits and four states demanding proof that the speaker in question intended a threat.  Another state requires knowledge and two require recklessness.  Nine circuits include states applying conflicting standards.

Colorado illustrates the state-federal conflict in this case. Petitioner was convicted in state court only with reference to objective measures.  Had he been tried in federal court, Counterman’s state of mind – whether he intended a treat – would have been critical to conviction.

The abandonment of any state of mind requirement for speech crimes would, petitioner argues, abandon the First Amendment.  

Petitioner was arrested and charged with stalking after Facebook exchanges caused discomfort in the state’s witness, and he was convicted without reference to whether he was aware that he knew he would cause distress, only that he knew he was sending a message.

Counterman has sought review not only because of the contortions and conflicts among state and federal courts but also because criminal law, which seeks to curb malevolent will, stands in contrast to First Amendment protections, which assure liberty to speak in many ways including unpleasant ways, without fear of criminal prosecution.  

Employing an objective standard – what a hearer, not a speaker, would think – reduces crime to negligence and conflicts with the First amendment as the low standard could criminalize otherwise innocuous, even if offensive, speech.  

The law ought rarely prosecute ‘accidental’ crimes and never countenance ‘accidental’ speech crimes.  The latter from the outset would chill otherwise permissible speech.  A state of mind requirement permits a speaker to speak without fear that his words will result in arrest and confinement.

Culpability in the absence of context, and likely imposed during a cold reading, cannot be sustained where the imposition of criminal liability would erode the speech protections of ordinary citizens. 

Colorado has strenuously object to granting certiorari, but its arguments have not persuaded the Court at this juncture.  Colorado points to Counterman’s admission that his conduct violated the stalking statute.  The presence of a speech component in a conduct-focused crime does not permit a clear constitutional analysis.

Colorado has argued that its view comports with Supreme Court precedent which permits conviction on the basis of conduct.

The Colorado court’s application of a context driven, multi factor objective analysis of petitioners’ statements permits assessment of stalking while leaving protected speech undisturbed, the state has argued. 

Colorado has argued that First Amendment protections do not extend only to speakers who would be robbed of speech protections in the absence of requiring evidence of an accused subjective mental state.  Colorado has argued that contextual analysis protects speech while permitting an objective view of threatening acts and speech.  

No briefing schedule has been issued and no oral argument date set.  

Counterman Petition for Certiorari

Counterman Brief in Opposition

Counterman Reply Brief for Petitioner

Amicus Briefs

Counterman Amicus Cato Institute

Counterman Amicus Rutherford Institute

Posted on by justlawfulblog

Dismissal of Claim Arising from Allegedly Racially Based Student Harassment Affirmed by Fifth Circuit

B.W., a minor, by next friends v. Austin Independent School District, No. 22-50158 (5th Cir.) January 9, 2023.

Plaintiff sued the school district for race based discrimination and retaliation under Title VI of the Civil Rights Act of 1964, as amended, asserting that the school district was indifferent to mistreatment suffered when plaintiff appeared in school wearing clothing or carrying signs identified with conservative figures.  Incidents included a locker room encounter in which students from one ethnic group taunted students from another ethnic group, including plaintiff, and an individual student’s lunchroom threat to kill all who support those identified with plaintiff’s clothes.

 

Plaintiff withdrew from school and initiated claims under 42 U.S.C. Section 1983 premised on the school district’s alleged violations of the First and Fourteenth Amendments, Title Vi, and Texas law.

 

Plaintiff alleged that with knowledge of the harassment plaintiff was suffering, the school district acted with deliberate indifference to his rights, and failed to provide him with a safe environment.

 

The Fifth Circuit affirmed dismissal premised on insufficient evidence, as there were only infrequent race based remarks which were not seen as sufficient to support a Title VI claim.  Title VI concerns only intentional discrimination which can be found if there is deliberate indifference to known harassment.  No such evidence existed on the plaintiff’s record, the court concluded, as plaintiff was tainted for ideological, not racial views.  In particular, no inference could be drawn by identifying the plaintiff’s race with that of a conservative political party, as no evidence indicated any race is precluded from participating in the conservative group.

 

The Fifth Circuit panel noted that plaintiff failed to develop any argument that the school district could be liable for deliberate indifference to student on student harassment, and therefore that this otherwise potentially compelling argument would not be addressed. Slip. op. P. 14, n.1.

 

The plaintiff’s retaliation claim was properly dismissed, as the complaint did not reveal any action taken because plaintiff opposed any unlawful practice or in response to any protected activity in reporting harassment.

 

The Fifth Circuit observed that nothing in the opinion indicates that the appellate court has looked away from the bullying plaintiff described, only that the law cited “does not support a claim for bullying generally.”  Slip. op. At 16.  


B.W. v. Austin Independent School District, No. 22-50158.0 (5th Cri.) January 9, 2023

Posted on by justlawfulblog

First Amendment Protection Not Lost in Michigan “Hate Speech” Case, Michigan Appellate Court Opines

CNN v. SEB, No. 359007 (Mich. App.)  January 12, 2023.  

Michigan’s Court of Appeals has vacated a personal protection order seen to have been supported by “hate speech.”

The parties are embattled neighbors who routinely feud over a shared driveway.  One such ruckus included a racial taunt between the parties referring to the race of a neighbor who was an observer and a stranger to the fight.  

The Michigan Court of Appeals has held that notwithstanding the distasteful remark, no threat was present which  would exempt the speaker from First Amendment protections, and as such, it would not support the issuance of a personal protective order.  

CNN V SEB Michigan Court of Appeals No. 359007 Opinion January 11, 2023

 

Posted on by justlawfulblog

Nice Would Be Nice, But Vulgarity Does Not Support Criminal Charge, Pennsylvania Trial Court Concludes

Commonwealth v. Muhammad, No. 690 MDA 2022 (Pa. Sup. Ct.)  January 11, 2023.

Muhammad was convicted of disorderly conduct stemming from an explosion of vulgarity and noise when she attempted to enter a county courthouse without a required mask. 

Muhammad succeeded in obtaining reversal of the conviction, arguing that her use of vulgarity did not mean that the standards of obscenity ink the state statute, which conforms to the standards established concerning sexually offensive language.

The Pennsylvania Superior Court concluded that non-sexual offensive and disrespectful words do not meet the statutory standards for disorderly conduct.  Pennsylvania precedent compels this conclusion.  Moreover, the Commonwealth agreed with Muhammad’s view.

Notwithstanding their decision, a separate concurrence acknowledged the force of controlling precedent but implored the legislature to address the issue, and noting that Muhammad “deserves to be penalized for the public use of explicit, offensive language directed at Luzerne County deputies in the courthouse annex,  a place where the rule  of law is sacrosanct.”  Slip op. Concurrence, p. 1. 

Commonwealth v. Muhammad, Pa. Super. Ct. January 11, 2023 Opinion

Commonwealth v. Muhammad, Pa. Super. Ct. January 11, 2023 Concurrence

Posted on by justlawfulblog

Eighth Circuit Again Upholds Permanent Injunction Precluding Government Enforcement Against Religious Objections to Regulations Requiring Provision of Gender Transition Services

The Religious Sisters of Mercy, et al. v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-11174 (8th Cir.) Opinion December 9, 2022.

Franciscan Alliance, et al., v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-1890 (8th Cir.) Opinion August 26, 2022

The Affordable Care Act (ACA) references and incorporates provisions found in civil rights laws which preclude discrimination on the basis of sex.  Throughout regulatory iterations issued by the Department of Health and Human Services (HHS), and in light of the Supreme Court’s interpretation of the scope of prohibitions in the civil rights laws in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and further in the light of the absence of religious exemptions in some regulatory provisions, plaintiffs have presented objections to federal courts, stating that any requirement that they provide gender transition treatment would unduly burden sincerely held religious beliefs, all in violations of the Religious Freedom Restoration Act (RFRA).

In the most recently decided case, a federal district court awarded summary judgment to plaintiffs, finding that the government’s acts and regulations substantially burdened the Catholic entities’ practice of religion and finding that less restrictive means existed that would allow the government to meet its legislative goals, e.g., through cost assumption or the awarding of subsidies to other providers for the benefit of transgender individuals seeking transition care.

Observation: This litigation encompasses actions by all coordinate branches of the federal government and their agencies.  Additionally, the Department of Health and Human Services and the Equal Employment Opportunity Commission have agreed to join forces to pursue enforcement of laws pertaining to discrimination in transitional health care.  It may be wondered whether both obfuscation through repeated regulation and the joining of forces has been intended to deter challenges to the federal government’s positions.

The federal government has presented multiple jurisdictional challenges to plaintiffs’ complaints, asserting that plaintiffs lack standing and the issues lack ripeness.

The Eighth Circuit has concluded that plaintiffs face a credible threat of enforcement action.  The appellate panel rejected the idea that the matter is not ripe where plaintiffs’ stance concerning transgender services is in clear violation of federal law.  Judicial review is apt where plaintiffs face an “impossible choice:”  plaintiffs must choose to violate federal law or to violate their religious beliefs, an untenable burden.  Slip Op. at 38.

The Eighth Circuit has established an expansive view of what is required to establish irreparable harm.  All that is required is that plaintiffs establish a likely violation of RFRA:  “…irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA.”  Slip Op. at 39 (citations omitted).

The appellate panel affirmed the award of permanent injunctive relief to plaintiffs with the exception of certain parties found not to have established associational standing.

The Religious Sisters of Mercy, et al. v. Becerra, et al., No. 21-1890 (8th Cir.) December 9, 2022

Franciscan Alliance, et al. v. Becerra, et al., No. 21-11174 (8th Cir.) August 26, 2022

Posted on by justlawfulblog

Eleventh Circuit Court of Appeals to (Trump-Requested) Special Master: “You’re Fired!”

Trump v. United States of America, No. 22-13005 (11th Cir.) Opinion and Order entered on December 1, 2022, reversing and vacating order of United States District Court granting plaintiff Trump equitable relief in a September 5, 2022 order authorizing the appointment of a Special Master to oversee review of documents and things seized from the former President’s residence in August, 2022.

The United States Court of Appeals for the Eleventh Circuit has concluded that the trial court hearing former President Trump’s request for judicial oversight of the review of materials seized from his residence was in error in granting the relief sought.  As courts of limited jurisdiction, federal courts cannot exercise equitable jurisdiction absent “callous disregard” of the constitutional rights of an individual to whom a warrant is directed. Such circumstances are not present in this case notwithstanding that a former President is involved.  Were the courts to permit challenges to warrants duly authorized and executed in non-extreme circumstances, challenges to searches and seizures would be routinely challenged, impeding, if not crippling, the work of federal investigators.  An urgent need for specific items, denial of which would precipitate grave and irreparable harm, might be grounds for relief, but the general assertions presented in this case do not demonstrate such a need.  Recitals of statutory possessory interests are not availing where all seizures involve items of possessory interest. 

Trump v. USA, No. 22-13005 (11th Cir.) Order and Opinion December 1, 2022

 

Posted on by justlawfulblog

Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

Posted on by justlawfulblog

Expedition upon Expedition: Former President Trump Seeks Supreme Court Intervention to Reverse the Eleventh Circuit’s Intervention in Special Master Proceedings; Department of Justice Seeks to Speed Up Appellate Review

Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.

Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order.  The lower court’s order precluded the use of documents with classification markings in  a criminal investigation while the documents were under review by a Special Master appointed by the court.  The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.

The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling.  Such rulings are not permitted except in limited circumstances.

At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.

 

Application to Vacate Eleventh Circuit Order October 4, 2022

Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022

Motion to Expedite Appeal September 30, 2022

Posted on by justlawfulblog

Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review

Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).

In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

Posted on by justlawfulblog

Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms

Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.

Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

Posted on by justlawfulblog

“The Very Objects of the Offense”: DOJ Asks Appellate Court to Stay Trial Court Order Enjoining Investigation Using Materials Seized from Former President’s Residence with Classified Markings

Trump v. United States, No. 22-13005-F (11th Cir.); Trump v. United States, No. 22-81294 (D. Fla.).

The United States seeks immediate appellate intervention in order to stay the order of the U.S. District Court in Florida which appointed a Special Master to review documents and things seized during an August 8, 2022 search of former President Trump’s Mar-a-Lago residence.  The trial court ordered the United States to stop using the documents seized in the government’s ongoing criminal investigation, which includes investigation into whether the former president wrongfully retained national security materials.

The United States submits to the appellate court that the approximately 100 documents bearing ‘Classified’ markings are the very documents the government needs to build its case.   The United States first made this argument to the trial court, which denied relief, but which directed the newly-appointed Special Master to prioritize review of the documents with ‘Classified’ markings.  The court observed that the government had not established any urgency concerning these documents and that the court was not obliged to adopt unquestioningly the position of the United States.

The trial court has outlined a protocol for review of the documents seized which will permit both parties to view the documents, determine which ought to be considered privileged, and submit their recommendations or disagreements to the Special Master.  The Special Master will in turn make recommendations to the trial court, which will, if need be, conduct review de novo.

The former  president as plaintiff is expected to pay for all of the Special Master proceedings, which must be concluded by November 30, 2022.

The newly appointed Special Master, a retired federal judge, has scheduled an initial conference with counsel on September 20th, and has invited submission of agendas not later than September 19th.

Trump v. United States, No. 22-13005-F (11th Cir.) Motion for Partial Stay Pending Appeal, September 16, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order of Special Master, September 16, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order Appointing Special Master, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order Denying Stay, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Declaration of Special Master, September 15, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) United States’ Reply in Support of Motion for Stay Pending Appeal, September 13, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Parties’ Joint Filing Respecting the Court’s Appointment of a Special Master, September 9, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Donald J. Trump’s Response in Opposition to Motion for Partial Stay Pending Appeal, September 12, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Plaintiff’s Proposed Order of Appointment of Special Master, September 9, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) United States’ Proposed Order of Appointment of Special Master, September 9, 2022

Trump v. United States, No. 22-81294-MAC (D. Fla.) United States’ Motion for a Partial Stay Pending Appeal, September 8, 2022

Trump v. United States, No. 22-81294-MAC (D. Fla.) Declaration of Asst. Dir. Counterintelligence, FBI, September 8, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Notice of Appeal, September 8, 2022

Trump v. United States, No. 22-81294-AMC (D. Fla.) Order, September 5, 2022