Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.

Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  


A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio

 

 

 

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95

 

 

The Right to Tell the State It Is Wrong: Ninth Circuit Recognizes Parent May Have a Claim Against Social Workers for Retaliation for Exercising First Amendment Rights in Connection with Child Protection Laws

Capp, et al. v. County of San Diego, et al., No. 18-55119 (9th Cir.) October 4,2019.


Jonathan Capp, going it alone in the judicial labyrinth, twice failed to persuade a trial court that he had been drawn into parental rights proceedings because he railed against the allegations made against him. The trial court twice dismissed his claim, first as insufficiently plead and again as barred by qualified immunity.

The Ninth Circuit has concluded that Capp in fact may assert a claim for violation of his First Amendment rights.  

During divorce proceedings, Capp became the object of San Diego Health and Human Services Agency inquiry. 

A county social worker contacted Capp to discuss his children and alleged substance abuse.  The children were interviewed without his consent.

Capp states that the social worker refused to answer his questions and terminated the interview.  Capp protested in writing to the social services agency. 

The San Diego family court dismissed a custody proceeding said to have been initiated by Capp’s wife at the social worker’s behest.  The family court denied the relief sought and chastised the agency.

A volley of correspondence and corrections ensued.  Capp was told allegations against him had been substantiated, then not, then told he was listed on a state registry concerning child abuse, then not.

Capp sued the social worker, social work supervisors, and the Health and Human Services Agency, claiming violations of his constitutional rights, in particular his right to be free from retaliation for exercising his First Amendment right to speak out against the proceedings initiated against him.

The Ninth Circuit reiterated the well established principle that speech protesting government action is constitutionally protection.  Retaliation for exercising that right is actionable. If an official act would inhibit an ordinary person from exercising First Amendment rights, the wrong may be reviewed in court. Thus, an injured person may succeed if it can be established that retaliation was a substantial or motivating factor in encouraging initiation of custody proceedings.  

Relief by means of a retaliation claim may be pursued even if it is recognized that the state and its social work are obliged to investigate claims of child abuse.  The presence of a legitimate motive will not, by itself, defeat the retaliation claim.

Where an individual can show that there was no substantiated concern for safety and that the individual was treated differently from others in similar circumstances, that evidence will permit an inference that retaliation prompted official action.

Even if Capp were able to show that retaliation for asserting his First Amendment rights to speak in protest of the child protective services agency’s actions, and that this was a motivating or substantial factor in encouraging Capp’s wife’s ex parte custody proceedings, the social workers would enjoy qualified immunity from suit unless they were found to have violated a clearly established constitutional right.

The Ninth Circuit recognized that a clearly established precedent recognized that the government cannot take action that would chill protected speech out of retaliatory animus for that speech.  Opinion, p. 22. Any government official would recognize that threatening legal sanctions or coercive action would violate the First Amendment and, as such, the social workers were not entitled to qualified immunity as a matter of law on appeal, although it could be explored further on remand.

The Ninth Circuit upheld dismissal of Fourth and Fourteenth Amendment claims as the question whether children are entitled to be free from unreasonable searches has not been clearly established and because, while the termination of parental rights could be seen as a violation of substantive due process rights, there is no right to be free from investigation.  As the Fourth Amendment claim failed, so too would the municipal liability claim, particularly where only a conclusory allegation was articulated.

JustLawful Observation:  The Ninth Circuit noted that its articulation of a potential claim in this case was quite close.  Nonetheless it would be unwise to read the decision as anything other than a cautionary tale for those charged with the administration of child protective services. 

Capp v. Cnty. of San Diego (9th Cir., 2019)

Federal Court Enjoins Enforcement of New Jersey’s Mandated Donor Disclosures of Dissemination of Political Speech

American for Prosperity v. Attorney General of New Jersey, No. 3:19-cv-14228 (D. N.J.) October 2, 2019.


New Jersey enacted a statute intended to render transparent the expenditure of money on political causes, requiring disclosure of donors’ identities where $3000 or more annually was given for “political communications.” 

The New Jersey governor refused to sign the bill as initially proposed.  While praising the goal of bringing “dark money” to light, the governor feared that the statute as drafted would infringe on First Amendment rights.

The New Jersey legislature then enacted an essentially identical but renumbered bill which the governor signed on the condition that changes be made to ensure conformity with the constitution and election laws.

No changes were made.

Americans for Prosperity, a group that speaks on diverse issues of public concern, sought and obtained an injunction against enforcement of the act.

Americans for Prosperity argued that the statute reached far beyond matters more appropriately reserved for electioneering.  The court agreed. The statutory mandate of disclosure of donor identify where speech is intended to influence elections goes too far and is too uncertain to be tolerated under the constitution and case law.

The perceived ills evoked the court’s pointed conference:  “Most constitutionally troubling to the Court is the way in which…the Act brings communications of purely factual political information into a disclosure and financial reporting regime historical limited to electioneering communications.”  Opinion, p. 38. 

Although the court confined its ruling to the facial challenge to the statute, the court opined that where politics as practiced can be observed to have invited threats, harassment, and loss of employment, it is not likely that the statuteuroy scheme would survive as-applied review.

Ams. for Prosperity v. Grewal (D. N.J.) October 2, 2019)

 

Badmouthing Police Officer Online, Absent Malice, May Not Demonstrate Bad Character Disqualifying Applicant from Licensure as Private Investigator

Gray v. State, No. 18-AP-65 (Kennebec Sup. Ct.) July 18, 2019.


Maine requires proof of character for licensure as a private investigator, as demonstrated through review by the state police.  In Gray’s case, the police were not well pleased with Gray’s online statements about a police officer, and disqualified him from licensure because he was seen as being unable to provide accurate accounts of matters. 

The Maine Superior Court applied the brakes to this position, observing that offering an opinion online is speech protected by the First Amendment.  In remanding for further administrative proceedings, the court concluded that If the posting were made with knowledge of its falsity or otherwise evinced actual malice, then consideration would be appropriate in the applicant’s character evaluation.  

Justlawful observation:  The judge sidestepped the quagmire that open season on online posting as character could invite while providing some guidance on evaluating troubling online behavior, while simultaneously avoiding what might very well turn out to be an epic feud between the police and the applicant for licensure. 

Gray v. State (Kennebec Sup. Ct.) July 18, 2019

Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)