Federal Officials Cannot Evade First Amendment Constraints on Speech Suppression Through Intimidation and Collusion with Internet Platforms, or Creation of an Unauthorized Disinformation Governance Board, State Attorney Generals Assert in Suit Against an Array of Federal Officials


Missouri and Louisiana v. Biden, et al.., No. 3:22-cv-01213-TAD-KDM (W.D. La.).  Complaint filed May 5, 2022.

Missouri and Louisiana v. Biden, et al., No. 3 22-cv- 01213 (W.D. La.) Complaint filed May 5, 2022

Missouri and Louisiana Attorney Generals, claiming injury to state constitutional interests and to state citizens’ speech freedoms, have filed a complaint against President Biden and multiple executive officials and federal agency heads, asserting that the Biden administration has colluded with technology platforms such as Facebook, YouTube, and Twitter in order to suppress and censor information unfavorable to federal government aims.  The recent creation of a bureaucratic governing board to manage removal of disfavored speech only advances these unconstitutional practices, the state plaintiffs say.

Plaintiffs seek declaratory relief declaring the administration’s actions violate the First Amendment as well as injunctive relief forbidding further unconstitutional activity.

The First Amendment serves as the cornerstone of the free exchange of ideas of information, without which competent self governance is impossible, the states say.  The federal government is constrained by the First Amendment from interfering with the guaranteed freedoms embodied in the First Amendment, including speech freedoms.  The government cannot escape its obligation to refrain from inhibiting speech by engaging private entities to censor speech.

Although the First Amendment does not ordinarily reach private actors, acts undertaken at the behest of or in collusion with the government may violate the First Amendment.  This is particularly so, the plaintiffs state, where the federal government has coerced private entities to cooperate with the government by means of threats of antitrust proceedings or revocation of immunities enjoyed under Section 230 of the Communications Decency Act of 1996.

Truncating the flow of information to suit federal officials’ aims impairs states in protecting the interests of state citizens, particularly where state constitutions may secure more expansive speech protections that the United States Constitution, plaintiffs claim.

The Complaint filed on May 5 in the United States District Court for the Western District of Louisiana details instances in which, either directly or in collusion with technology platforms, federal officials have acted to suppress speech, serving their own political ends to the injury and detriment of the public, frequently cloaking their actions as attempts to guard against undefined and opaque “disinformation.”

Threats of antitrust actions or threats of loss of immunities have ensured technology companies’ compliance with federal officials’ dictates.   The adoption of facially private governing documents and policies that in fact are employed to serve the government, and which may operate in collusion with the government, cannot be interposed to shield either private or public actors from liability for suppressing and chilling speech.

An atmosphere of intimidation pervades social media sites, plaintiffs observe. Undertaken in fear of or in collusion with federal officials, the private companies’ practices of banning, shadow banning, limiting publication, and outright removal of social media account holders create unconstitutional prior restraints, chilling participation lest a similar fate ensue.

The state plaintiffs’ Complaint provides a chronicle of activity asserted to constitute First Amendment violations. If true, the plaintiffs’ allegations paint a picture of a government intent on serving its ends and not those of the public they were elected or appointed to serve.  Digital media fail to behave as an ‘electronic public square’ where those media represent an unparalleled “concentrated control” of speech.  Complaint, para. 53, citing Knight First Amendment Institute, 141 S. Ct. 1220, 1221 (2021).

Federal officials have conferred with private digital platforms to advise the platforms about content that ought to be flagged for removal, plaintiffs state.

Online platforms accomplish speech monitoring by means such as mechanical algorithms or outright speech suppression by permanent banishment of disfavored speakers, the plaintiffs offer, thereby denying the exiled any ability to communicate publicly.  Such measures not infrequently censor core political speech, to the detriment of political opponents and to the benefit of those directing the private companies’ actions.

Examples of digital platforms’ interference with First Amendment speech guarantees, undertaken to please or to appease federal officials have included suppression of information about location of the President’s son’s laptop, said to contain damaging information, on the eve of the Presidential election.

Plaintiffs aver that open discussion of the origins of the Covid-19 virus was precluded where, by agreement with a social media platform, a federal official who had been engaged in funding gain of function research abroad provided messaging favoring a government narrative which insulated the government and the official from review.

Relevant evidence that would permit public evaluation of the efficacy of face masks and government edicts demanding home confinement was also suppressed, plaintiffs submit.

The promotion of narratives favoring voting by mail, a methodology traditionally dismissed as inviting voter fraud, has also been alleged to involve social media.

Both the Executive and the Legislative branches have threatened technology companies directly and publicly, at times demanding removal of political opponents’ statements.

The recent creation of a board to govern “disinformation” is an Orwellian measure intended to withhold content from the public and to insulate the federal government from criticism, plaintiffs insist.   This has been done notwithstanding that there exists a constitutional guarantee of free speech, such guarantee not to be interfered with by curating and removing from public discourse that which disfavors the government.

Similarly dystopian, plaintiffs observe, is the view that speech is not speech but infrastructure, and thus susceptible of government regulation and oversight.  To this has been added the opinion that the public reacts emotionally and thoughtlessly to speech, and that speech is linked to violence, requiring online policing to protect the public.  One legislator has suggested that the public lacks the capacity to discern fact from fiction, a circumstance not to be addressed by providing more information, but instead, in the view of current federal officials, less information or none at all.

These activities, whether singularly or in combination, violate the First Amendment and severely damage public discourse, the plaintiffs say, causing sufficient danger to open discourse as to merit an injunction against further constitutional violations.

A Grand Old (Private) Flag at Boston City Hall: Supreme Court Clarifies Establishment and Speech Clause Interests


Shurtleff v. City of Boston, No. 20-1800, 595 U.S.      (May 2, 2022)


Private Flag Permitting at Boston’s City Hall Plaza.  Three flagpoles are situated on the public plaza surrounding Boston City Hall.  These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts.  At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.

Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.  

A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution.  Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained. 

Constitutional Purposes and Constraints.  Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States.   The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors.  The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”   

Clauses on a Collision Course, or So It Sometimes Seems.  Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error.  However, the Establishment Clause applies only to government action.  Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted. 

Justice Breyer’s Judicial Opening Farewell.  Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed.  Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.  

Government speech and government created forums must be distinguished, he wrote.  A government created forum must be open to all without restriction based on viewpoint.  Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.  

This is all very clear until it is not.  In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment.  On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination. 

Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech. 

Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.”  Slip. Op. at 6.  Introducing its approach, the Court offered:

Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Slip Op. at 2. 

In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion.  The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case. 

Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future. 

A brief reiteration:  Justice Kavanaugh concurs.  This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity.  All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities. 

The end may be all right, but the means, not so much.  Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion.   Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion.  Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity. 

Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers.  The critical question is who the speaker is.  The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis.  No such test can be found.  The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.  

Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship.   Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.  

…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application. 

Alito concurrence in judgment, Slip. Op. 4

While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter.  An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional. 

A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation,  who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own. 

The issue is not simply one of fashioning an analysis, Justice Alito stresses.  Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship. 

Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.

Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech.  There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech. 

The Unbearable Persistence of Lemon.  Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.

Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:

“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.   

Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)

20-1800_Shurtleff v. Boston, 595 U.S. (May 2, 2022)

Last Rights:  Supreme Court Concludes Death Row Inmate May Succeed in Asserting Undue Burden of His Religious Exercise Because State Denied Request for Minister’s Presence, Audible Prayer, and Touch During Execution 

Ramirez v. Collier, Executive Director, Texas Department of Criminal Justice, No. 21-5592, 595 U.S. ____ (March 24, 2022).  Opinion awarding petitioner Ramirez injunctive relief, reversing the decision of the Fifth Circuit affirming denial of a stay of execution, and remanding the case for further proceedings.


In 2004, John Ramirez stabbed Corpus Christi convenience store worker Pablo Castro twenty-nine times, an act that killed Castro and yielded $1.25 for Ramirez and his accomplice.

 

Ramirez fled the United States, but was apprehended near the Mexican border several years later, then was convicted of murder in the course of roberty, a capital offense.

 

Ramirez has assiduously yet unsuccessfully sought relief from his conviction.

 

Ramirez has sought to stay his execution because the State of Texas has denied him the presence of his spiritual advisor during his execution to provide audible prayer and to touch Ramirez during administration of lethal injections.  

 

Texas has promulgated several policies concerning the presence of religious advisors during executions. Although at times Texas has precluded all spiritual advisors from being present in the execution chamber, Texas has revised its protocols to permit the presence of spiritual advisors in the execution chamber.  

 

Ramirez grieved the state’s denial of his request that his spiritual advisor be permitted to pray aloud and to lay hands on Ramirez during Ramirez’s execution.  

 

Ramirez asked the United States Supreme Court to preliminarily enjoin the state from executing him prior to resolution of his claim under the Religious Land Use and Institutional Persons Act (RLUIPA).

 

RLUIPA provides religious free exercise protections that, because of the act’s procedural structure, may be more adventitious to claimants than First Amendment claims.  RLUIPA requires the state to demonstrate that a substantial burden on the exercise of a sincere religious belief must meet “strict scrutiny” standards even if the law in question is one of general applicability.  

 

The Supreme Court in Ramirez’s case perceives that Ramirez’s request that his pastor be present, pray audibly, and lay hands on him as he is executed reflects a sincerely held religious belief.

 

The Court has concluded that Texas cannot substantiate its revocation of the time honored practice of vocal prayer because, as Texas asserts, there exists a compelling government interest in being able to minotaur sound within the execution chamber, which, the state posits could be hampered by audible prayer.  

 

The Court agreed that the interest exists but the state had not shown that a categorical ban on all audible prayer in the execution chamber is the least restrictive means of advancing that interest. 

 

Similarly, the Court acknowledged that Texas has a compelling interest in avoiding disruption in the execution chamber.  However, the Court found that because there exists in this case no indication that disruption might occur, a hypothesized fear could not meet the state’s burden. 

 

By tailor making the execution to suit the prisoner’s needs and to permit monitoring, to limit touch to areas that would not interfere with the procedure,  and to avoid disruption, the minister could be permitted to address the inmate only, subject to immediate removal upon any failure to comply with the rules.  These measures are less restrictive means through which Texas might advance the state’s interest.

 

Having concluded that Ramirez is likely to succeed on the merits of his case, the Court next concluded that if the Court failed to provide injunctive relief that Ramire would suffer irreparable harm, as he would be barred from exercising his faith in the last moments of his life. 

 

The public interest will not be harmed by granting relief in this case, as Ramirez does not seek an indefinite stay, and there is a strong public interest – as evidenced by the enactment of RLUIPA – in ensuring that prisoners subject to execution are not concomitantly subjected to undue burdens on their religious exercise. 

 

The Court dismissed Texas’s argument that Ramirez’s inequitable conduct should bar injunctive relief.  In the Court’s assessment, Ramirez has diligently asserted and pursued his claim and has not made a late claim on long known facts to manipulate or to cause delay rather than to seek redress. 

 

As RLUIPA claims are case specific, the Court has urged the states to adopt policies to address claims through a reasonable request process as well as to provide procedural training for spiritual advisors. 

 

As Ramirez succeeded in persuading the court that he is worthy of injunctive relief, the decision of the Fifth Circuit has been reversed, and the case has been remanded for further proceedings consistent with the Court’s opinion.

 

Matters Would Go Better if All Played Their Parts Better.  Justice Sotomayor, having joined in the opinion, has written separately to emphasize that both inmate and prisons administration must comply with not only RLUIPA, but also, with particular emphasis on the prison’s obligations, with the Prison Litigation Reform Act (PLRA).  All concerned, but especially Institutions administering process and procedures, must ensure that redress is available and accessible and that delay not be permitted to frustrate proceedings unduly.  

 

Accommodate, Don’t Litigate.  Justice Kavanaguh concurred separately, noting the emergence of religious exercise and religious equality claims in death penalty case, and commenting upon the difficulties the Court faces in defining not only conpelling interest but also refining the relative restrictivess of measure os addressing compelling interests.

 

Justice Kavanaugh urged the states to realize that much could be accomplished and a good deal of harm could be avoided if the states were to accommodate inmenat’s requests where it is possible to do so without sacrificing the states’ “compelling interests in safety, security, and solemnity,” as so doing would avoid litigation and aid in bringing closure to victims’ families. 

 

Doubting (Justice) Thomas. Justice Thomas dissented from the Court’s opinion, citing not only the violent nature of Ramirez’s crime, but also his evasion of responsibility, and what Justice Thoams perceived to be a strategic change in position to achieve delay.

 

Justice Thomas noted that Ramirez’s engagement in delay and manipulation has frustrated the state’s and the public’s interests in how justice ought to be served.  Moreover, Ramirez has caused repeated injury to victims, as each time a date of execution has been set, Ramirez has evaded it. 

 

Although Ramirez did not engage in a last minute flurry of filing claims, he did engage in piecemeal and persistent pursuit of claims, changing tactics as needed to seek his goal:  delay. 

 

Neither strategy is more or less inequitable than the other, in Justice Thomas’s view.

 

Justice Thomas found no merit in the view that Ramirez’s advancing a claim relating to a ‘traditional’ religions ritual supports the conclusion that is claim is sincere, particularly as the orthodoxy of a practice has no bearing on First Amendment protection.

 

Justice Thomas found Ramirez’s failure to comply with the Prison Litigation REform Act (PLRA) is fatal to his bid for relief before the Supreme Court.  Ramirez was obliged to, but did not, engage in informal resolution of his audible prayer claim nor did he mention the audible prayer claim in his grievance, precluding the state’s adjudication of his claim.  

 

21-5592 Ramirez v. Collier (03_24_2022)

 

Ramirez v Collier 10 F4th 561Mem 5th Cir 2021

 

The Times they are not a-changin’: awkward closing of Palin libel suit fails to provide path forward for standards governing publication of false statements about public figures

 

Palin v. The New York Times, No. 17-04853. 

Judgment for defendant entered February 15, 2022. 

Teleconference scheduled for February 23 at 4:00 p.m.  Public access at 888-363-4735 Access Code 1086415


In issue:  In 2017, Congressman Steve Scalise was shot while practicing with colleagues for an annual Congressional baseball game, causing news media to  echo concerns about gun violence that arose in 2011 when Arizona Senator Gabrielle Giffords sustained a gunshot wound to the head in a supermarket parking lot.

The New York Times opined that a perceived escalation of gun violence was traceable, in the Giffords case, of  incitement induced by a campaign document produced by Governor Palin which featured drawings of gun sight cross hairs on a map to indicate campaign targets.

The New York Times corrected itself but this did not, in Palin’s view, suffice to relieve the publication of liability for defamation.

While jurors were deliberating whether The New York Times ought to respond in damages to former Alaska Governor Sarah Palin for its publication of  an admittedly inaccurate, promptly removed,  statement in an opinion piece, the court granted judgment in favor of The New York Times.

Although jurors had been cautioned against accessing media while deliberating, jurors reported that they learned of the entry of judgment through telephone notifications received prior to the jurors’ verdict for the New York Times.

The court was of the mind that entry of judgment for The New York Times could provide efficiencies after appeal:  If the jurors found in favor of plaintiff Palin, and the Second Circuit reversed the trial court, judgment for Palin in accordance with the juror’s findings could be entered, obviating the need for another trial.

It seemed like a good idea at the time.  

Civil procedure thumbnail.  Judges may dismiss cases before trial, after trial, and after jury determinations in the court’s discretion if the court is of the view that a litigant cannot and, if after trial, has not, as a matter of law, established a case.  Rule 50, Fed.R.Civ.P.  Entry of judgment as a matter of law in accordance with Rule 50  modernizes the common law judgment non obstante verdicto (judgment notwithstanding the verdict), permitting courts the flexibility of entering judgment at almost any time.

The court has augmented the record to include statements to the jurors about avoiding media as well as cases relied on by the parties concerning the motion for judgment by the court, and has invited the parties to discuss any issues presented by the court’s and the jurors’ conclusions by telephone conference.

By entering judgment for the New York Times, the court indicated that the former governor had not produced evidence meeting the heightened standard for defamation of public figures announced more than a half-century ago in New York Times v. Sullivan, 376 U.S. 254 (1964).

Law thumbnail. To prevail in a  defamation claim, a public figure must prove that the publication of a defamatory statement was done with “actual malice”, defined as knowledge of its falsity or reckless disregard of whether the statement was false or not.  “Actual malice” does not mean subjective ill will but refers to publishing, as stated, with knowledge that a statement is false or with reckless disregard — more than negligence — with respect to truth or falsity.

This rarely met standard has provided insulation for publishers which some, including two justices of the U.S. Supreme Court, now sense merits revisiting.  Berisha v. Lawson, No. 20-1063, 594 U.S.  ____ (2021) (Justices Thomas and Gorsuch, writing separately, dissent from denial of certiorari).

At this writing there is no opinion concerning the final judgment on the docket for the U.S. District Court for the Southern District of New York, and it is not known whether the court will issue one.

Recent case materials:

Order February 16, 2022

Order to Supplement Record February 16, 2022

Final Judgment February 15, 2022

Earlier case materials:

Palin v. New York Times (2nd Cir.) August 6, 2019

Palin v. New York Times, Opinion S.D.N.Y. August 29, 2017

Supreme Court Opinions:

Berisha v. Lawson, No. 20-1063, 594 U.S.___ (2021)

New York Times Company v Sullivan 376 US 254 11 L Ed 2d 686 84 S Ct 710 95 ALR2d 1412 1964

The New York Times, March 10, 1964

 

 

 

 

Disfavored, de-prioritized, and dismissed:  physicians’ association cannot sue congressman for working with media platforms on ‘misinformation’


Association of American Physicians and Surgeons and Kathleen Verelli, individually and on behalf of others similarly situated v. Adam Schiff, individually and as a member of Congress, No. 21-5080 (D.C. Cir.) (January 25, 2022).


 

The United States Court of Appeals for the District of Columbia Circuit has affirmed dismissal of an action brought by a physicians’ association that provides information about vaccination online.  In its complaint, the association asserted that online platforms caused their site to lose preference in search results, as well as a beneficial comercial association, and that this was the result of agreement between the technology platforms and Representative Adam Schiff. 

In addition to allegedly disfavoring the physicians’ association, the association stated that government statements came to be incorporated in information offered online about vaccines.  Dispositive motions and the appeal did not establish whether the companies and the government worked together to present responses to the government’s inquiries or to fashion information presented on government websites.

The appellate court concluded that the physicians’ association lacked standing, a form of capacity, to bring suit, as the association cannot demonstrate a concrete injury traceable to the actions of the defendant which is redressable by a court.

The appellate court was dismissive of the physicians’ position that because its action is grounded in First Amendment concerns, the ordinarily stringent requirements of standing are not apt, as First Amendment injuries are presumptively damaging.  Deferential review of First Amendment claims applies to overbreadth challenges to statutes, not the willful acts of a government official to limit speech, as is alleged here.

The court observed that inquiries presented by the Congressman to the technology companies and their responses disclosing their policies does not provide any traceable source of harm to the petitioners.  Moreover, the technology companies stated that their policies and actions predated the government’s inquiries about their practices, further attenuating any inference that the two worked together to cause the physicians’ website to become disfavored.

Because the appellate court affirmed dismissal on jurisdictional grounds, the court found it unnecessary to consider either the legislative immunity enjoyed by members of congress or the statutory immunity enjoyed by technology providers under Section 230 of the Communications Decency Act of 1996.  

JustLawful note:  At the heart of the physicians’ associations’ case is the specter of the government outsourcing speech suppression, which is forbidden to the government by the First Amendment. Significant issues in maintaining open channels for speech could emerge were the government to encourage speech regulation by private entities not bound by the First Amendment as agents or proxies for the government, an undesirable situation made worse as the technology companies enjoy statutory immunity for as long as they are not providing content.  

Not long ago such an idea would be seen as the stuff of dystopian fiction.  However, cause for concern has become deeper and is now more frequently perceived to be grounded in reality.  Technology companies grow ever more active in removing materials from their sites, or in banning  participation on their sites, and enjoy immunity for doing so for so long as they are able to maintain that they are administering terms of service agreements rather than providing content.  

Providing content, which is not immune from suit, and providing site access, which is immune from suit, is a legacy of early days in internet development when courts were inclined to encourage the widespread adoption of online platforms. As a corollary, courts were inclined to discourage corporations from refusing to expand services for fear of defamation actions.  It was thought that Section 230 would take care of that, and by and large it has done so, but Section 230 immunity seems, to some, to grow ever more expansive as opportunities to be present online seem to grow ever less reachable or maintainable. 

The potential for government involvement in matters that impact opportunities to speak, whether directly with the entities, or indirectly through political financing, merits review and will likely invite additional challenges.  

 

Association of Physicians and Surgeons v. Schiff, No. 21-5080 (D.C. Cir) January 25, 2022

Rendering Unto Caesar, According to Caesar: Supreme Court Declines Review of City’s Revocation of Church’s Tax Exemption

Trustees of New Life in Christ Church v. City of Fredericksburg, No. 21-164 (S. Ct.) 525 U.S. _____. Order denying certiorari dated January 18, 2022.

Justice Gorsuch dissents from the court’s denial of certiorari of a dispute between local tax authorities and a church claiming tax exemption for a minister’s residence used not only as housing, but also as a gathering place for religious study and management of outreach works.

While acknowledging that state law permits tax exemption of a minister’s residence, the City of Fredericksburg denied the church this exemption. The city reviewed church governing documents and concluded that the church did not understand its own qualifications for “ministry”, and that, therefore, exemption must be denied.

The church rejected the city’s interpretation of the church’s views who might serve as a minister, relying on the church’s views of its governing structures.

A state court in Virginia agreed with the city. After the Virginia Supreme Court denied review, review in the U.S. Supreme Court was sought.

Justice Gorsuch is of the view that the First Amendment precludes the sort of deep dive into church governance that the City of Fredericksburg conducted in this case, finding the City’s claim that it may ‘verify’ church rules antithetical to established law rendering ecclesial considerations, which include church governance, outside the purview of civil authorities, including the courts.

History is clear that the United States was formed with escape from government oppression of religion firmly in mind, Justice Gorsuch opines. Thus, in the absence of fraud of deceit, civil authorities and the courts may not serve as interpreters of church law, but rater, church positions on ‘purely ecclesial’ matters are to be accepted as conclusive.

To the extent that this dispute appears to stand established law on its head, summary reversal would have been preferred, Justice Gorsuch concluded. Even if such an “obvious” error in what may be seen as a small case may be promptly corrected, Justice Gorsuch is of the view that permitting the error to stand is not the best way to proceed because “[b]ureaucratic efforts to “subject” religious beliefs to “verification” have no place in a free country.” Dissent, Slip. op. at 4.

Trustees of New Life in Christ Church v. Fredericksburg, Order dated January 18, 2020

Secular Semaphore:  Boston’s Sole Exclusion of Christian Flag in Otherwise Open Participation Program Faces Supreme Court Challenge


Shurtleff, et al. v. City of Boston, et al., No. 20-1800 (S. Ct.). Oral argument set for January 18, 2022 at 10:00 a.m.


Upon application, the City of Boston permits groups to utilize spaces owned or managed by the city for commemorative purposes.  Administered in conjunction with those spaces is a three flagpole display at Government Center, Boston’s City Hall.  

Applications appear to have been freely granted up until 2017, when a group called “Camp Constitution” applied to the city property manager for permission to raise a “Christian flag” at Government Center to commemorate the role of the Judeo-Christian tradition in Massachusetts history.  

Boston had never before denied an application for use of the flagpoles, but Camp Constitution’s application was denied not on the basis of the appearance of the flag proposed to be raised, identical in material respects to the Bunker Hill flag, but on the basis of its name, “Christian.”

The city property manager feared that the brief display of the flag raised Establishment Clause concerns.  The city’s law department concurred, as did the United States Court of Appeals, following judgment on an agreed upon statement of facts in the United States District Court.

The First Circuit perceived the flagpoles and the flags displayed upon them to be government speech exempted from the First Amendment speech clause.  

Camp Constitution, by its leader, Harold Shurtleff, argues before the Supreme Court that the government speech construction offered by the First Circuit was in error.  The city spaces available for private use, open to all but Camp Constitution, are forums governed by the rules applicable to such spaces, which preclude the government from excluding views concerning religion. 

Boston argues that Shurtleff is wrong on the facts, notwithstanding that the case was presented on an agreed-upon statement of facts before the trial court.  The flagpoles are exclusively government property, Boston asserts, such that any use of the flagpoles is or becomes government speech excluded from First Amendment speech constraints.

The Solicitor General of the United States has joined the proceedings as amicus supporting reversal of the First Circuit decision, asserting that the questions raised in the case affect federally managed lands and federal agencies, such as the U.S. Park Service, upon which properties many groups frequently seek to hold events.

Oral argument will be held at 10:00 a.m. today.

Shurtleff v. Boston, No. 20-1800 Brief of Petitioners

Shurtleff v. Boston, No. 20-1800 Brief of Respondents

Shurtleff v. Boston, No. 20-1800 Reply Brief of Petitioners

Shurtleff v. Boston, No. 20-1800 Brief of the United States as Amicus Curiae

Supreme Court Stays Stays of Healthcare Workers’ Vaccine Mandate, Finding Federal Authority Within Regulation of Medicare and Medicaid Programs


Biden, et al. v. Missouri, et al., No. 21A240.

Secretary of the Department of Health and Human Services, et al. v. Louisiana, et al., No. 21A241.

Order and Opinion issued January 13, 2021.


The United States Supreme Court has granted the relief from stays entered in two United States District Courts enjoining the effectiveness of a Centers for Medicare and Medicaid Services (CMS) rule requiring Covid-19 vaccination of staff of facilities and providers receiving or participating in Medicare of Medicaid programs.

The Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), administers Medicare insurance for the elderly and Medicaid insurance for low income persons.

A core feature of both programs, the Supreme Court has observed, is that participation in those programs is contingent upon compliance with HHS patient health and safety regulations.

Medicare and Medicaid regulation is extensive and longstanding and include measures to guard against transmission of infectious diseases, the Court has found.

In November, 2021, HHS added Covid-19 staff vaccine compliance to regulations governing those receiving federal reimbursement or funding (“covered” facilities or entities), attaching penalties for failure to comply as well as potential termination of participation in federal financing.

In demanding that all persons working in covered facilities be vaccinated, the Secretary of HHS made findings concerning viral contagion and the likelihood that contagion would be inhibited by requiring vaccination.

In addition, the Secretary found that fear of contracting Covid-19 has inhibited people from seeking needed health care.

The Covid-19 vaccine mandate was promulgated as Interim Final Rule without notice and comment.

The Supreme Court has concluded that the Secretary of Health and Human Services has the authority to condition receipt of federal funding upon compliance with health and safety regulations.

Although the Covid-19 vaccine mandate for healthcare workers goes farther than other healthcare health and safety requirements, vaccination as a condition of employment is routine.  As vaccination is ordinarily administered by the states, prior to the Covid-19 pandemic there has been no need for the federal government to step in to the process.

The Supreme Court rejected arguments that the Secretary failed to consider alternatives to vaccination or to support departure from previous ‘encouragement’ — but not requirement — of vaccination.

Even if the Secretary’s considerations and findings could be seen to be flawed, the Supreme Court observed, courts are not to disturb the Secretary’s determinations as arbitrary and capricious where the Secretary has proceeded “within a zone of reasonableness.”  Slip op. (per curiam) at 8 (citation omitted).

Objections to the Secretary’s excusing notice and comment are ill founded, the Court opined, because the arrival of the “flu season” has sufficient specificity to justify haste in implementing the Covid-19 vaccine rule  The Court found it unnecessary for HHS to confer with the states or to develop impact assessments before enacting its rule.

Finally, the vaccine mandate does not prohibit HHS involvement in the supervision or control of participants’ provision of services or the termination of employees, the Court concluded.  If the reading urged were adopted, almost all prior conditions of participation would fail.

A federal agency cannot act outside the power conferred upon it in an emergency, the Court reiterated.  This does not mean, however, that an agency is precluded from exercising authority that the agency has long been recognized to possess when  emergency conditions exist.

We disagree. Justices Thomas, Alito, Gorsuch and Barrett dissent.  The dissenting justices have been unable to locate within the provisions cited by the government the authority to require an estimated ten million workers to submit to an irreversible medical procedure.  Rule-making powers that may be exercised for the administration of Medicare and Medicaid programs have not been shown to have a nexus with vaccination.  Adding to such general management authorities scattered references to ‘health and safety’ in order local such a nexus fares no better.

Bits of this and that. The ‘hodgepodge’ approach, as the dissent characterizes the majority’s analysis,  is not sufficient to support the majority’s finding that authorization for the Covid-19 mandate for healthcare workers exists.  References to health and safety measures found here and there will not suffice to support the kind of global regulatory power exercised here, nor can authority for exercise of such power be implied through ‘catchall’ language referring to undefined “other requirements” relating to health and safety.

Residual authority cannot be creatively implied, for it is a basic rule of statutory construction that where specific terms precede general terms, the general terms must consider matters similar to the specific terms.

General administrative requirements such as the provision of 24-hour services or record keeping cannot support a finding of authority for vaccination of all healthcare workers associated with covered facilities.

The one regulation that the dissent concedes might be relevant concerns infection control in long term care facilities but this relates to general sanitation, not vaccination.

The majority’s reliance on general regulatory powers granted to CMS does not provide evidence that authority to require healthcare employee vaccination exists.  The existence of some regulations does not support the majority’s finding that authority to issue the regulations in issue here has been granted.  Even the infectious disease control provisions concern sterilization and housekeeping and discuss vaccination only in the context of patient request for and consent to vaccination, and have nothing to do with the requirement imposed on employees through the Covid-19 rule.

Success in the Future is not Certain. The dissenting justices are of the opinion that the government applicants for relief from the federal district court stays have failed to demonstrate a strong likelihood of success on the merits, for in such vast measures as are in issue here, Congress must speak clearly, and nothing provided to the Court thus far shows that Congress has done so.

We disagree all the more. Justice Alito, joined by Justices Thomas, Gorsuch and Barrett, has provided a separate dissent.  Justice Alito opines that it is not likely that the federal government wil be able to show that there exists Congressional authorization to the Secretary to command that ten million workers submit to vaccination or lose their jobs.

The regulatory “hodgepodge” and scattered provisions as authorization was not forcefully argued by the government until its reply brief.  Stronger medicine than this is needed to cure the absence of any direct evidence to support legislative delegation to HHS to compel employee vaccinations.

Even if vaccination could be perceived to be authorized, the way in which HHS has conducted itself is fatally defective.  Administrative notice and comment, which is essential to ensuring public participation in rule-making, and which guards against lawmaking by unelected officials, has been undermined here.

Justice Alito, while recognizing that the majority has recognized only a likely hood of success on the merits, fears that the scope of the majority’s conclusions is dangerously broad.  The expansive view of regulatory powers embraced by the majority undermines fundamental principles of administrative law.  This in turn may induce extensive changes in executive branch behavior.

No good cause, no excuse. “Good cause” is necessary to excuse compliance with notice and comment provisions.  While no fixed standards supporting foregoing notice and comment exist, conditions excusing notice and comment require narrow construction.

The rationale for failing to comply with notice and commend procedures offered by the government fails to define what harm would ensue from the delay caused by notice and comment.  The ‘importance of vaccination’ will not in itself, define the harm to be avoided by suspending notice and comment.  It is not credible for HHS to argue that exigency excusing notice and comment exists where vaccines had already been in existence for ten months prior to the rule and millions of workers had been vaccinated by the time the CMS mandated issued.

No harm, yet still foul. CMS’ claim that no one was prejudiced by the failure to adhere to notice and comment  procedures obscures the fact that CMS must demonstrate good cause for doing so.  No requirement exists that respondents demonstrate a lack of good cause.  “No harm done” casts a backward glance that does not provide the good cause needed before suspending notice and comment.

Skipping the essentials bodes ill.  Notice and comment procedures are legislative limits on executive authority intended to ensure that executive agencies consider what they are doing “before restricting the liberty of the people they regulate”.  Alito dissent, slip op at 4.  (citation omitted). The majority’s adoption of CMS’ position endorses a regulate first, then listen approach which is especially dangerous where ten million workers must undergo an irreversible medical treatment or lose their jobs.

Biden v. Missouri, No. 21A240 and Becerra v. Louisiana, No. 21241. Order and Opinion January 13, 2022 (S.Ct.)

Supreme Court Stays OSHA Emergency Covid-19 Vaccination Regulation


National Federation of Independent Business, et al.  v. Department of Labor, Occupational Health and Safety Administration, No. 21A244

Ohio, et al. v. Department of Labor, Occupational Health and Safety Administration, No. 21A247

Order and Opinion issued January 13, 2022 (S. Ct.)


The United States Supreme Court has issued an order staying the effect of an Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) requiring larger employers to adopt policies requiring and administer records concerning employees’ Covid-19 vaccination (the “vaccine mandate”).  OSHA’s regulation requires employers of more than 100 employees to require employees to be vaccinated against Covid-19, or face termination.  Employers may offer weekly testing and continuous masking as an alternative to vaccination at the employees’ expense. 

The vaccine mandate is estimated to affect 84 million workers nationally.  Employers who fail to comply face fines.  

Why the Supreme Court intervened to stay the effect of the OSHA vaccine mandate. Applying established legal standards governing issuance of a stay, the majority of the justices have concluded that the employers and the states challenging the vaccine mandate are likely to prevail on the merits of their claims.

No authority to be found. Nothing in the statute creating OSHA or any measures relating to the Covid-19 pandemic reflects Congressional intent to expand OSHA’s powers to regulate and to administer workplace safety to include public health matters in general, the justices observed.  OSHA’s emergency Covid-19 measure purports to preempt public health concerns traditionally reserved to the states.

This is no small measure. The unprecedented scope of the OSHA emergency regulation, undertaken without notice and comment procedures as an emergency measure excusing compliance, indicates the need for clear congressional authorization of a measure which would exercise powers of vast economic and political significance. Slip opinion (per curiam) at 6, citing Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6).

OSHA is a  workplace, not a public health, administration. OSHA is authorized to implement measures to address workplace safety, but OSHA has no authority to act as a federal public health agency regulating daily life.

Some room to act may exist notwithstanding the stay.  Vaccination, the majority noted, cannot be undone at the work day’s end.  Although OSHA lacks the vast powers it has attempted to exercise, particular industry working conditions may indicate vaccination would support employee health and safety.  OSHA might develop targeted mandates, but the sweeping mandate before the Court is causally untethered to the workplace, and is without historic precedent that would indicate it to be apt. 

The balance favors the affected employers and employees. Not only is OSHA without authority to regulate vaccination, equity favors a stay, the Court’s majority noted, as billions in unrecoverable compliance costs and fines will be incurred by employers, and many would lose their employment because of the OSHA vaccine mandate.

Three justices concur.  Justices Gorsuch, Thomas and Alito joined in a concurrence outlining the importance of the Constitutional principles governing governance itself as applied to the OSHA vaccine mandate.

Constitutional constraints.  The Constitution cabins legislative powers by requiring any exercise of federal legislative power to be tied to an enumerated Constitutional power, as powers not delegated to the federal government are reserved to the states, as is true of public health regulation. Congress cannot elide its limits by conferring legislative powers on executive agencies.  Thus, when an executive agency undertakes vast new measures, its authority to take such actions must be clear (the “major questions” doctrine) and may not be indirectly assumed (the “nondelegation” doctrine).  

Fie on a burgeoning bureaucracy. These concepts are not mere academic footnotes, the concurrence asserts, but they act as fundamental guards against “government of bureaucracy supplanting government of the people.”  Concurrence Slip Op. at 6, citing Scalia, A. A Note on the Benzene Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980, p. 27. 

The vaccine mandate is not good by any measure. Application of these principles supports the Court’s stay.  OSHA can locate no clear congressional authorization for its actions, and even if one were believed to exist, the vaccine mandate would violate nondelegation principles, as such authority would confer upon OSHA unlimited discretion without any meaningful specific limits.

Three justices dissent. Justices Breyer, Sotomayor and Kagan have dissented, opining that while examining the powers of coordinate branches, the Supreme Court has overstepped its limits as the majority has failed to recognize and to defer to agency expertise supporting the vaccine regulation, which regulation is of the very sort that OSHA exists to undertake.  

Up OSHA’s alley in any event. Workplace regulation is permissible even if similar hazards exist outside the workplace, and such regulation is apt where, as with the Covid-19 virus, workplace contagion is a recognized hazard which gravely threatens workers’ well-being.

The majority checks others’, but should also check itself. Although the majority focuses on the limits of legislative and executive powers, the majority fails to recognize that while executive agencies cannot act without legislative authorization, the Supreme Court may not read in or impose a limitation on agency action where none exists.  The Court has erred in issuing the stay, as the Court lacks the regulatory expertise that OSHA has.  Similarly, and also erroneously, the Court has incorrectly assessed the public interest served by OSHA’s undertaking measures to hinder the sickness and death the Covid-19 pandemic has precipitated. 

National Federation of Independent Business v. OSHA (01_13_2022)

Absent Administrative Notice and Comment, Amici Affected by the OSHA Vaccine Mandate Present Submissions to the U.S. Supreme Court Explaining Their Views


National Federation of Independent Businesses v. Department of Labor, No. 21A244,  consolidated with Ohio v. U.S. Department of Labor, No. 21A247. Oral Argument on  Applications for Emergency Stay of OSHA Vaccine Mandate set for Friday, January 7, 2022.

Biden v. Missouri, No. 21A240, consolidated with Becerra v. Louisiana, No. 21A241.  Oral Argument on Challenges to Stays of CMS Vaccine Mandate set for Friday, January 7, 2022. 


The principal parties will be heard on Friday, January 7, 2022 concerning whether the U.S. Supreme Court ought to intervene to stop the implementation of the U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating vaccination against the Covid-19 virus or testing/masking for all employers with more than one hundred employees.  Immediately thereafter, the Court will hear arguments concerning whether to dissolve stays imposed to halt the effect of a Centers for Medicare and Medicaid Services (CMS) Rule requiring vaccination of health care workers in federally supported settings.

The parties are also seeking certiorari before judgment in their respective cases.  Whether the Court will reach that issue at the same time that it addresses preliminary relief is not known.

What is known is that just as vaccination has engendered controversy nationally, interest groups, advocates, elected leaders, former officials, and professional associations have seized the occasion to submit their views to the U.S. Supreme Court in amicus briefs.

In broad brush, proponents of a stay of the OSHA vaccine mandate argue that OSHA does not have the authority to implement such a measure.  In the absence of explicit Congressional delegation of authority, OSHA cannot act outside known statutory parameters without clearly articulated guidance.  In addition, proponents of a stay assert that OSHA has no public health authority, as that is a police power reserved to the states.  OSHA has no authority to act on an emergency basiss where no emergency exists.  To like effect, OSHA erred in failing to permit notice and comment concerning its proposed vaccine mandate, as no actual emergency presenting a grave danger that requires intervention and excuses notice and comment exist.  

Proponents of a stay of the OSHA vaccine mandate argue that vaccination is ineffective concerning transmission of the Covid-19 virus and that the ‘vaccination’ itself is actually a gene-modifying medical treatment. 

In addition to the sweep of the OSHA measure, the federal intrusion on constitutionally protected individual interests in both bodily integrity and consent to medical treatment are implicated, requiring a hard look in advance of implementation.  

Finally, and not insignificantly, one amicus suggests that the imposition of vaccination or testing and masking measures within workplaces will precipitate medical segregation, an adverse social consequence. 

Those who applaud the arrival of the OSHA mandate assert that the Covid-19 pandemic is the most deadly viral infection event in U.S. history and that the workplace is a petri dish for contamination, making vaccination or masking and testing a valid first line of defense.  Some amici fear that if the mandate is not implemented, the consequences will spill over to their businesses to dismal effect. 

Presented below are thumbnails of the various amicus submissions concerning the OSHA vaccine mandate.  While the CMS Rule requiring health care provider vaccination is of great importance, limitations of time and space prevent development of those arguments here. 

 


 

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

These advocates for traditional values oppose the encroachment of the federal judgment and the administrative state.  There are grave dangers inherent in governmental invocation of emergency measures, particularly where, as here, the vaccine mandate does not address an emergency but presents a “work around” to avoid the necessity of Congressional action and/or administrative notice and comment.  OSHA’s emergency powers are to be used sparingly, and even as such, only one survived judicial challenge.  


 

America’s Frontline Doctors as Amicus Curiae in Support of Applicant

America’s Frontline Doctors as Amicus Curiae in Support of Applicants

Member physicians do not believe the vaccines prevent the spread of Covid-19, and, as result, there exists no basis for segregation of the vaccinated and the unvaccinated.  

The current vaccines are mischaracterized as such.  They are gene-modifying treatments that may reduce symptoms. 

The proper legal analysis should be derived from the strict scrutiny considerations of personal rights to refuse medical treatment.  The OSHA mandate would not survive such analysis, as it is not narrowly tailored to serve a compelling state interest.  They do not inhibit contagion, and thus do not serve the arguably compelling state interest in public health.  And the vaccine mandate is not narrowly tailored as the treatments do not consider risk factors or natural immunity.  There is evidence that natural immunity confers a long term benefit and there are also newly developed treatments to assist in addressing the virus.  


 

American Medical Association, et al.as Amici in Opposition to Applications for Stay 

American Medical Association, et al. as Amici in Opposition to Applications for Stay

These established medical professional associations perceive a severe risk to public health through higher workplace transmissions.  Vaccination can reduce the risk of contraction of the virus, result in less severe cases of illness, and less contagion. 

Testing offers no greater protection than nothing at all.  Masking may be helpful, but is not as good as vaccination. 


 

American Public Health Association, et al. as Amici in Support of Respondents

American Public Health Association, et al. as Amici in Support of Respondents

Public health associations observe that airborne viruses make the workplace particularly hazardous.  Covid-19 mortality is higher for in-person workers.  

Vaccination provides some insulation against transmission.  Moreover, vaccination diminishes transmission and therefore, mutation. 


 

Center for Medical Freedom, et al. as Amici in Support of Applicants

Center for Medical Freedom, et al. as Amici in Support of Applicants

Conservative groups opine that the vaccine mandate is”exactly what the Framers most feared when they established the federal government:  a raw exercise of arbitrary power.”  (Amicus Brief, p. 3).  

OSHA is a child of the commerce clause. There is no authority to regulate anything i the absence of commerce, and the impact of inaction on commerce is not a valid premise for commerce clause legislation.  

Reliance on Jacobson is misplaced, a statue measure was in issue there and as more than a century of subsequent law has been amassed, placing Jacobson’s vitality in question, and this is particularly so where Jacobson was conceived during the ascendancy of the eugenics movement. 

Justice Gorsuch has already rejected Jacobson as a premise for emergency extra-constitutional federal health measures.  

There is no federal police power that would support a vaccine mandate.  

Moreover, the premics of the mandate is flawed, as it is false to say the unvaccinated cause the pandemic.

Death attributable to the Covid-19 vaccines, which are ene therapy, suggest the vaccines themselves present substantial hazards.  

Separation of powers principles caution against implementation of the sort the OSHA vaccine mandate contemplates. 


 

Constitutional Accountability Center as Amicus Curiae in Opposition to Applications for Stay or Injunction Pending Review

Constitutional Accountability Center as Amicus Curaie in Opposition to Applications for Stay 

This progressive think tank and advocacy center submits that delegation with intelligible, principled guidance is appropriate, and that here that intelligible and principled guidance is found in the directive that OSHA may issue emergency orders where necessary to address a grave danger.  

Just because a measure is broad, this does not mean it is unintelligible.  Where such guidance has been provided, there should be no second-guessing agency action. 


 

Defending the Republic in Support of Emergency Applications for Stay or Injunction Pending Certiorari

Defending the Republic as Amicus Support Applications for Stay

Defending the Republic is engaged in challenging the vaccine mandate applicable to the Department of Defense, arguing that the mandate presents unconstitutional infringements on religious freedoms and the right to refuse medical treatment. 

The vaccine mandates represent unprecedented federal usurpations of power.  Nearly the entirety of the adult federal workforce is being conscripted to receive an experimental and irreversible medical treatment.  


 

Former OSHA Administrators Charles Jeffress, David Michaels, and Gerard Scannell as Amici in Opposition to Emergency Applications for Stay(or Injunction) Pending Certiorari Review

Former OSHA Administrators in Opposition to Applications for Stay

Three former Occupational Safety and Health Administration officials oppose a stay of the OSHA vaccine mandate, as it would impede implementation of measures intended to stop Covid-19.  

OSHA may regulate exposure to workplace hazards, including communicable disease, and may develop measures for immunization with religious exemptions.  OSHA can include the impact of workplace hazards on families, and has responded to concerns with bloodborne illnesses, hazardous waste, and respiratory conditions.  

Where the Secretary acts within statutory authorization, Chevon deference should be the norm.  

Simply because a condition exists outside the workplace does not mean that OSHA cannot address the condition within the workplace.  


 

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

An Indiana university coalition advocates for medical autonomy within the university community.  The group supports freedom of choice and opposes medical segregation or discrimination regarding access to education, employment, housing and community events.  

Covid-19 vaccines do not prevent infection and transmission.  The vaccines are better considered to be medical treatments ameliorating more serious aspects of Covid-19, but they are not a public health measure.  

OSHA does not have the authority to require unwanted medical treatment.  It is noteworthy that the Centers for Disease Control changed the definition of”vaccine” to conform to Covid-19 therapeutics. 

The OSHA Emergency Temporary Standard violates principles of bioethics concerning autonomy and choice in medical treatment.  

OSHA does not have police powers.  The states, not federal agencies, have police powers and those police powers are bound by the Constitution.  

OSHA cannot force the test/vaccine choice on the employee and pre-enforcement review requires a ‘harder look’ at such a measure.  Rigorous scrutiny is required where medical autonomy and consent are in issue.

Jacobson does not apply here because the OSHA mandate concerns a medical treatment, not a public health measure.  

A personal decision to refuse a medical treatment does not create a risk to others to whom disease might spread.  Refusal only impacts the person who refuses. 

The presupposition that vaccines would slow the spread of disease is in error.  


 

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

The individual and organizational amici provide credentialing for chaplains in the military.  The organization exists to promote religious free exercise.  

Amicus objects to the OSHA vaccine mandate as it is not a true vaccine, as the overwhelming survival rate of persons with Covid-19 infections suggests that there is no grave hazard, and as the mandate fails to consider religious concerns. OSHA does not have authority to impose measures where there is no hazard.  This is particularly problematic where the proposed measure does not inhibit transmission or contraction of the Covid-19 virus and associated illness.  Moreover, the fact that the Centers for Disease Control changed the definition of ‘vaccine’ to include the current injections is problematic.  

Those who resist vaccination are subject to punishment, either in the form of loss of their livelihoods, or, if masking and testing is chosen, in the form of fines, as the individual employee must bear the not insignificant costs of testing.  Further, testing does not provide valid information about contagion and thus is not helpful in curbing disease transmission, and a distinction between testing unvaccinated versus vaccinated individuals makes no sense, as both unvaccinated and vaccinated persons can transmit the Covid-19 virus.

Finally, the social costs of the vaccine mandate are difficult to calculate, as the mandate may usher in an era of medical segregation in which the vaccinated obtain a status superior to those who are not vaccinated.  


 

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Concerned with constitutional liberties in the context of expanding federal powers, amicus foundation asserts that Jacobson was not a blank check.  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Congress must use especially clear language where, as here, Congress intends to upset the balance between federal and state powers.

Emergencies cannot be pretexts for denials of civil liberties and usurpation of powers.  The measures in issue raise concerns about bodily integrity, informed consent, and refusal of medical treatment.  

Jacobson was a narrow ruling which recognized the potential for government overreach.  Current analysis should require a compelling government interest.  Even if a compelling government interest could be found, the government has not chosen the least intrusive means of serving that interest.  


 

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review  

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review 

The electrical workers’ unions think that unvaccinated members should not be forced to choose between vaccination and supporting their families.  The vaccine mandate is well outside OSHA’s traditional bailiwick.

Unions can work with management quite effectively to develop Covid-19 policy.  Particularly as the virus and infections will change over time, it is preferable to allow for hands on negotiation rather than to accept top-down demands. 

Traditionally, OSHA does not regulate employers and employees.  Here, there are significant personal cost consequences to employees and a demand that employees subite to an irreversible medical procedure that affects the individual both when working and when not working. 

Although it is true that a hazard need not be solely a workplace hazard for regulation to be proper, the federal government does not routinely impose costs on employees.  


 

Members of Congress as Amici Curiae in Support of Applicants

Members of Congress as Amici Curiae in Support of Applicants

One hundred eighty three members of both houses of Congress fer the disregard of separation of powers principles that th eOSHA vaccine mandate represents.  Congress has not authorized OSHA’s action:  theser exist no deletion of power nor an intelligible principle to support delegation of power to OSHA.  Public health care does not fall within OSHA”s emergency powers, yet OSHA wants to expand those powers outside the workplace.  There is no grave danger that OSHA might address nor is a virus a toxic or hazardous agent as contemplated in the OSHA act.  

The vaccine mandate lacks the ‘necessity’ the OSHA statute requires and the measure itself does not inhibit contagion and contamination.  A rule that does nothing to address a (non-extant) grave danger is not a measure that is “necessary,” as the OSHA statute contemplates.

Equally problematic is the absence of any limiting principles application to ASHA’s actions, which gives rise to non-delegation concerns.  The purpose of reducing the number of unvaccinated individuals on its face exceeds OSHA”s jurisdiction to regulate some workplace safety concerns.  And even if there were authority to act, the failure of Congress to state clearly the principles to guide OSHA causes ‘major questions’ doctrine problems as the vaccine mandate upsets the federal – state power balance. 


 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

Advocates for the physically and mentally disabled support the OSHA Emergency Temporary Standard because, they assert, the physically and mentally disapbled are particularly vulnerable to Covid-19 workplace infection, and face higher mortality rates if they are infected.  Those who refuse vaccination or refusing masking and testing present a new workplace hazard.   Studies suggest that the Emergency Temporary Standard is a necessary measure in mitigation.  Enjoying the Emergency Temporary Standard would disproportionately affect medically vulnerable and disabled persons. 


 

National Employment Lawyers Association and Jobs with Justice Education Fund in Opposition to Emergency Applications for a Stay or Injunction Pending Review

National Employment Lawyers Association and Jobs with Justice Education Foundation Amicus Brief

Acceptance of petitioners’ arguments would open many existing workplace regulations to challenge.

If workers are given a liberty interest superseding federal regulatory powers, then workers may refuse to work. 

The federal government has regulated workplaces in the past, i.e., with drug testing, permitting physical qualifications for work, mandating retirement, and regulating the use of hard hats or the advisability of beards.

With respect to major questions, judicial line drawing between major and minor issues is not committed to the judicial branch.

Petitioners’ Commerce Clause argument would invalidate all federal employment legislation.  It is well established that federal regulation may be applied to noneconomic activity with economic consequences.  


 

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small businesses fear that a stay will cause them to lose the protections that would flow from large businesses’ compliance with the OSHA vaccine mandate.  As some states have interfered with eemployers’ efforts to require vaccination, federal intervention is needed.  


 

Standard Process, Inc. in Support of Emergency Application for Administrative Stay, Stay, and Alternative Petition for Stay Certiorari Before Judgment

Standard Process Inc. as Amicus in Support of Stay and Certiorari Before Judgment

This whole food nutritional supplementation manufacturer fears that the OSHA vaccine mandate will precipitate mass employee resignations,and that, owing to Standard Process’s rural location, those employees will not be replaced.

Testing is not accessible in the way that the government would like to believe.  Equally importantly, employer compliance costs are extraordinary and are neither private nor self-contained.  

In all, the vaccine mandate needlessly undermines both private and public interests. 


 

Texas Values, et al. as Amici n Support of Applicants

Texas Values, et al. as Amici in Support of Applicants

States’ ‘family values” policy advocates object to widespread regulation of employees without notice and comment and without proper concern for religious exercise.  The administrative state is particularly prone to disregarding religious liberty. OSHA has taken the position that employees’ religious interests are outside OSHA’s purview, but even with their ‘proper’ administrative nice, those concerns do not receive fair treatment, as employers may disregard religious concerns where addressing them would require more than de minimis costs.  The public has been denied a voice in the development of this sweeping measure, a measure which lies outside OSHA’s statutory authority.  


 

Tore Says LLC in Support of Petitioners

Tore Says LLC as Amicus in Support of Petitioners

This multimedia news outlet focuses on the thinking of the founding fathers with particular concern for the Ninth and Tenth Amendments to the U.S. Constitution.

Corporations have constitutional rights, and ought to be free from government intrusion, as the government has only those rights which are granted to it by the people.  The Ninth Amendment guarantees against federal intrusion and the Fourteenth Amendment guarantees against state intrusion. 

Because of the Ninth Amendment, there is no authority for the government intrusion that the vaccine mandate represents, but even if there were such a power to intrude, that power would be reserved to the states.  

Public health traditionally is entrusted to the states.  No federal police power exist to support the board exercise of federal powers in issue here.  


 

Washington Legal Foundation in Support of Applicants 

Washington Legal Foundation in Support of Applicants

This foundation supports free enterprise, individual rights, limited government, and the rule of law.  The vaccine mandates are causing supply chain issues and rising prices.  The vaccine mandate is not within OSHA’s authority but if it were notice and comment would be needed, not an emergency measure implemented outside ordinary procedure.  

The mandate presente employees with a forced choice between vaccination,testing, or losing employment.  

The emergency measure is odd in that in June, 2020, the U.S. Court of Appeals for the District of Columbia Circuit observed that OSHA need not issue a mandate.  This is all the more curious because the nation is more than one year, and closer to two years, beyond the inception of the pandemic, and the government wants to use an ‘emergency’ measure.

This is a fitting case for granting certiorari before judgment, given the time constraints presented by the Emergency Temporary Standard, which will expire by its terms in six months.  


 

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

This group defines itself as promoting constitutional rights and offers that the vaccine mandate represents the largest disruption of personal choice and bodily integrity in history.  

Since Jacobson, substantive due process rights have developed in recognition of individual fundamental unenumerated rights under the Fourteenth Amendment.  

Tiers of tests for unenumerated rights have been inconsistently applied, sometimes utilizing strict scrutiny, and sometimes not, depending on whether bodily integrity or self-determination is in issue.  Abortion is recognized as a fundamental right, while refusal of medical treatment requires balancing of personal and state interests, with the scales favoring the state.  This uneven treatment of similar questions needs to be addressed.  

The vaccination or testing/masking alternatives are not true alternatives because the costs of testing, which must be borne by employees, are so prohibitive that the average employee is forced to submit to vaccination.  

The Commerce Clause concerns economic issues only and is not concerned with non-economic public health activity, which belongs to the states.  

It is not proper to characterize any skepticism concerning the vaccines as an “anti-vax” position.  The reliance on inconsistent statements of “experts” about Covid-19 is of great concern.  

The OSHA vaccine mandate is a major question because mandatory medical treatment for vast portions of the population is a major political and economic question.

State power to administer public health measures should be retained.  The regulation of containment and remediation of viral transmission is a state matter, but in any case the regulation of a virus is not a regulation of activity within the Commerce Clause.

Upholding the vaccine mandate would open the door to unprecedented federal regulation of public health questions.