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

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

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

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

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

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

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

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

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

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

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

21-592 Arizona v. Mayorkas (05_08_2023)

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

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

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

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

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

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

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

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

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

The case was remanded for further proceedings.  

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

imageedit_13_4186924744

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

22A557 Antonyuk v. Nigrelli (01_11_2023)

 

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

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

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

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

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

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

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

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

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

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

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

Scardina v Masterpiece Cakeshop Inc 2023 COA 8 Colo App 2023

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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