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No Precedent, No Problem: NY Judge Finds Former President in Criminal Contempt of ‘Gag Order’

State of New York v. Trump, SMZ 71762-24 71764-24 Order April 30, 2024

At the commencement of criminal proceedings against former President Donald J.  Trump in Manhattan, the trial judge issued an order restricting the defendant from commentary about several subjects, including witnesses expected to be called in the proceedings, but excluding commentary about political matters.  The order was later revised to be more restrictive. 

Yesterday the court examined its own earlier order and found it to be sound.  The court declared, however, in what the court characterized as an unprecedented issue of law, that the defendant was in criminal Contempt of the court’s order, as defendant had retweeted others’ tweets.  The court found that of necessity retweeting represented the defendant’s adoption of the retweeted material, in violation of the order concerning out-of-court statements.  A $9000 fine was imposed with intimations that confinement would not be outside the court’s contemplation should further violations be found.

Whether the court has been disingenuous, an observation not lightly undertaken, or simply wrong cannot be known.  However, the order can be criticized for its facile approval of its own earlier order, as any examination of the alleged violations would need to be had in the context of appropriate speech restrictions during trial.  In general, restrictions must be narrowly tailored, such that only that speech that would interfere with the administration of the trial.  While the defendant was unsuccessful in obtaining a stay of the trial pending an appellate challenge to the initial orders, the appellate court’s refusal to stay proceedings does not of itself indicate that the trial court’s order is sound.

However, the question whether the exemption from political speech in the order would embrace statements by witnesses was dismissed out of hand by the judge, who opined that such an exception to the order would be one that swallowed the rule.  Perhaps so. Should that not have been made plain at the outset? 

Most interesting is the court’s perception that the issue of retweeting is unprecedented.  The law of retweeting is far from settled but the court was not writing on a blank slate.  Courts that have given the matter serious thought in civil proceedings have observed that context will be necessary to determine the intent and impact of republication of a tweet violates rights of others or unduly impacts securities markets.  In re. Genius Brands International Inc. Securities Litigation, No.22-55760 (9th Cir.) April 5, 2024

It is not difficult to imagine that greater attention to these matters might be paid where the outcome is seen as one step removed from incarceration.

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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. 

 

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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.

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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

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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)

 

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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

 

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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

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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

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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

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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