Non-Theists Haven’t Got a (Legislative) Prayer, Third Circuit Holds

Fields, et al. v. Speaker of the House of Pennsylvania Representatives, No. 18-2974 (August 23, 2019).  Mandate issued September 16, 2019.


The Pennsylvania legislature invites only theists as guest chaplains to open sessions with prayer.  The Third Circuit found no constitutional infirmity in this practice.

The federal appellate court observed that prayer presupposes a higher power and that only theistic prayer is consonant with the historic tradition of invoking divine guidance in lawmaking.  

Legislative prayer is government speech, particularly where the government is both speaker and listener, and is not susceptible to First Amendment and Equal Protection challenges.  Signage and the speaker’s request that guests stand during prayer is not coercive.

Looking to History and Tradition. Supreme Court precedent looks to historic tradition to evaluate Establishment Clause challenges, whether with respect to public prayer or public monuments.  As legislative prayer has been a traditional practice, having both religious and secular significance, it works no constitutional harm.  

Prayer Definitionally Involves Divinity. Because by its very nature prayer presupposes a divine power, only theists prayer can achieve all the purposes of legislative prayer.  To confine prayer traditions to theistic prayer does not, notwithstanding prayer’s inherently religious nature, institute religious orthodoxy.

Religious Status Not Compelling. The non-theists’ challenge is not improved because of their recognition as religions, for that status does not change the nature of the prayer’s permissibility.  

Historic Conformity, Contemporary Neutrality. Because the Pennsylvania legislature has conformed to history in its choice of chaplains, because non-theists cannot offer the sort of prayer tradition contemplates, and because the legislature does not direct the content of prayer, Pennsylvania has not impermissibly preferenced one religion over another.  

A non discriminatory and inclusive practice of selecting theistic chaplains to lead prayer is acceptable under Town of Greece v. Galloway, 512, U.S. 565 (2014) under the Third Circuit’s view that prayer invokes divine guidance and presupposes a higher power.  Pennsylvania’s invitation program lends itself to greater constitutional acceptability than is a practice of selecting a single permanent chaplain from one denomination.

Not Must, But May. The Third Circuit noted that the Pennsylvania legislature need not exclude nontheists from legislative prayer, only that it is not impermissible to exclude non theists.  

Inclusiveness Has Limits. The court continued that an unbounded focus on “non-discrimination” could wreak havoc with selections, essentially creating a “heckler’s veto” on fringe groups.  

Another Voice Raised in Dissent.  A dissenting justice questioned the congruence with history that the other two members of the panel handily found.  Even if history were satisfied, the dissent perceived that the legislature has established a religious orthodoxy that violates the Establishment Clause. 

Where Judges Fear to Tread. The dissent criticized the majority for venturing into the very areas that the Establishment Clause forbids: courts are not to address questions such as the nature of prayer, what is divine, and so forth.

Consider the Outcome, Not Its Rationale. The dissent perceived the permissible “theistic” limitation to be so much obfuscation:  the real practice of the legislature is to exclude from guest chaplaincy certain religious groups and certain religious beliefs.

Tradition As It Was, Not As It Is Imagined to Have Been. The tradition embraced by the Founders is not one of exclusion but of inclusion. Early debate on the appointment of a chaplain ended in favor of doing so, and no faith was excluded and no faith was favored.  The notion that the Framers would not understand atheism as a faith distorts the historical inclusiveness that is central to the examination of history and would preclude inclusion of all manner of established traditions.

Tradition Has Its Limits. The dissent cautioned against finding too great a constitutional comfort in history, as history offers no justification for contemporary violation of constitutional guarantees.

Guarantees Not Honored. The promises of the Establishment Clause are governmental neutrality and non-discrimination.  The Pennsylvania practice falls short of the mark, demanding that guest chaplains assert a belief in God and permitting only those who do believe to serve.

Fields v. Speaker of Pa. House of Representatives (3rd Cir., 2019)

Ill Gotten? No Problem! First Amendment Protects Publication of Purloined Democratic National Committee Information, Southern District of New York Concludes

Democratic National Committee v. Russian Federation, et al, No. 18-cv-3501 (JGK) (S.D.N.Y. July 30, 2019).


There are few — if any — freedoms more deeply cherished in the United States than that of the press to publish, as the New York Times has avowed since 1897, “All the News That’s Fit to Print.” In matters of public interest, unless a publisher has knowingly participated in theft of information, no criminal or civil liability may attach.  To hold otherwise, the Supreme Court has held, would be an unconstitutional prior restraint upon the press. This is so, the Court has held, even if the publisher is aware that the material provided to it was not come by honestly.  Bartnicki v Vopper, 532 U.S. 514 (2001); The Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Company., 443 U.S. 97 (1979); New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

Settled law in unsettling times.  The recent reiteration of these principles by the United States District Court for the Southern District of New York was occasioned by a suit by the Democratic National Committee (DNC) against Donald J. Trump For President, Inc. ; Donald J. Trump, Jr.; Paul J. Manafort, Jr.; Jared C. Kushner; George Papadopoulos; and Richard W. Gates, III; Roger J. Stone, Jr.; the Russian Federation; Aras Iskenerovich Agalarov; Emin Araz Agalarov; Joseph Mifsud; WikiLeaks; and Julian Assange.

The DNC alleged, and the court on motion to dismiss assumed to be true, that the Russian Federation hacked into the computers of the DNC, siphoned substantial numbers of significant documents.  The Russian Federation next engaged in a minuet with the Trump campaign and its various principals as well as with Wikileaks and Assange, which resulted in disclosures of the DNC’s theretofore private information. 

The DNC alleged that the Trump campaign welcomed and was benefited by the Russian Federation’s actions and that publication of DNC’s stolen information was unlawful. 

The Southern District of New York rejected the DNC’s contentions because the Russian Federation, as sovereign, cannot be sued in the United States courts by private entities, because the First Amendment protects publishers of unlawfully obtained information, and because the defendants could not be civilly liable for  conspiracy, if one were found to exist, to achieve the lawful end of the election of a presidential candidate.  

The court observed that the Supreme Court has been plain in its view that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co.,, 443 U.S. 97, 102 (1979).  (Opinion, p. 33-34). The law distinguishes the publication of stolen information from the act of theft. Bartnicki v Vopper, 532 U.S. 514 (2001) (Opinion, p. 34) . 

The federal court was aided in its determination by amicus submissions by The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union.  

The upshot: getting to the truth may involve some discomfort, and may not always be pristine. Leaving aside for a moment the catnip of campaign hi-jinx, it may strike some as far from reasonable to extend the insulation afforded by the First Amendment as far as it has been here, and perhaps as far as it has been historically.  Others would argue that the occasional publication of tainted information is but a small price to pay to ensure the continuous flow of information about matters of public concern that is held to be central to a free society.  

The future. Whether appeal will ensue is not known at this writing. 

Source Material. The opinion of the Southern District of New York, the principal Supreme Court cases relied upon, and the amicus submission presented to the court are provided below.  

Democratic Nat’l Comm. v. Russian Fed’n (S.D. N.Y., 2019)

Bartnicki v Vopper, 532 U.S. 514 (2001)

The Florida Star v. B.J.F., 491 U.S. 524 (1989)

Smith v. Daily Mail Pub. Co.. 443 U.S. 97 (1979)

New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

DNC v. Russian Federation et al Amici Curaie Brief

 

 

 

 

 

 

A Matter of Opinion: Federal Court in Kentucky Dismisses High School Student’s Defamation Case Against the Washington Post Stemming from Reporting of Charged Encounter on the National Mall

Nicholas Sandmann v. WP Company, LLC, d/b/a The Washington Post, No. 2-019-00019 (WOB-CJS).  Opinion and Order of Dismissal with Prejudice, July 26, 2019 (E.D. Ky.)


An encounter between a high school student and a Native American activist on the National Mall in January, 2019, was videotaped and widely distributed on the internet.

The day having been one of several groups’ gathering to exercise First Amendment freedoms, the appearance of conflict between an adolescent wearing a MAGA (“Make America Great Again”) hat and a drumming Native American was undoubtedly newsworthy and of public interest.

Interaction among students from a Catholic High School who had traveled to Washington to engage in pro-life activity and a Native American participating in an Indigenous Peoples’ March could only be catnip to those inclined to perceive any encounter between persons of differing demographic groups as a manifestation of one form of social ill or another.

Upon posting of the video, the internet blew up, and the commentariat raged apace, in general denouncing the adolescent Sandmann and applauding the Native American Nathan Phillips.

Some days hence, questions arose as to the bona fides of the initial accounts of the exchange, which questions were buttressed by disclosure of additional video.

Religious superiors affiliated with Sandmann’s high school condemned the incident, a position from which retrenchment was necessitated upon disclosure of additional information.

Interviews and talk show appearances ensued.  Sandmann was interviewed, as was Phillips.  Pundits weighed in and editorialists opined. The public shared its views and the Twitterverse was alive with chatter about this alleged confrontation between individuals presumed to be from different worlds.

Counsel volunteered to help Sandmann, who had been thrust into the public spotlight at an early age, to address the consequences of perceptions of his activity.  As a result, multiple lawsuits have been filed against major media.

On July 26, 2019, the United States District Court for the Eastern District of Kentucky dismissed Nicholas Sandmann’s complaint against the Washington Post with prejudice.

The federal district court has concluded that, as a matter of law, Sandmann had not stated a claim of defamation under Kentucky law.

The court enumerated the elements of defamation under state law and referred to Supreme Court precedent establishing that opinions on matters of public concern are not actionable without provably false factual statements.  Opinion is fully constitutionally protected,  and there can be no legal remedy for statements  that cannot reasonably be seen to be stating facts.  Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).

The court found that some statements in the seven articles published by the Washington Post were not specific to Sandmann, and were not identifiable to Sandmann, and thus were not actionable.

The court also found that statements made by Phillips that Sandmann “blocked” him from moving and that Phillips felt fear were statements of opinion which, n the absence of demonstrable underlying factual falsity, were not actionable.

Additionally, the court found the statements challenged were not defamatory.  It is not enough,the court observed, that an allegedly defamatory statement is “annoying, offensive, or embarrassing.”  (Op. at 11).  The statements must expose the claimant to “public hatred, ridicule, contempt or disgrace,” or induce in others a bad opinion (Id.)

The court turned to the defamatory nature of the statements published, which Sanamann alleged indicated that he assaulted or intimidated Phillips, uttered taunts, or engaged in racist conduct.   The court concluded that the published articles said no such things.

The court offered that, it analyzing the case as one of libel per se, the court was precluded from venturing beyond the plain meaning of what was actually published or to engage in explanation, enlargement or innuendo to add to the words allegedly libelous effect (Op. at 20-21).

Any consequences allegedly suffered by Sandmann– such as social media scorn — were without significance to the court, as extrinsic evidence would make the case one of libel per quod, which was not, in the court’s view, the claim before the court, which was one of libel per se.

A published account indicating that  a public encounter was heated or tense would not be sufficient to meet the elements of defamation, nor would rhetorical headline hyperbole be found defamatory.

Phillips’ subjective account of his experience of fear was not defamatory nor could assigning political affiliation to Sandmann subject Sandmann to the sort of social contempt required for statements to be libelous per se.  Neither Sandmann’s statement of his subjective intent nor Phillips’ description of his subjective emotional state are  susceptible to objective verification.  As such, these accounts cannot be actionable in defamation.

The court observed that shielding opinion from civil liability serves to protect First Amendment speech and press interests.

Prognostication: Impossible.  As noted above, Sandmann’s case against the Washington Post is but one of several cases in which he seeks to recover for alleged harm suffered as a result of the media firestorm that ensued from his encounter with Phillips.  If the decision here is any indication, subsequent cases may be intensively fact driven.  Whether the breadth of construction of statements of perception such as “blocked,” which is arguably a verifiable and measurable matter, will be accorded in other cases remains to be seen.  Of equal significance is whether other cases will be limited to consideration of libel per se.

Sandmann v. Washington Post, Opinion and Order of Dismissal July 26, 2019

 

 

 

 

 

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.


Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

1🖼️ = 1K 🕮? Courts Adapt to the Language of Emoticons

Although the yellow smiley face (  😀 ) has had a decades long presence in popular culture, instant communication technologies have precipitated a explosion in the use of multiple pictorial symbols, collectively called emoticons or emojis.  Some decry use of emojis as a perceived regression to hieroglyph, signifying burgeoning illiteracy. Others applaud the utility of the often playful symbols as shorthand expressions of feelings as well as words.

All would be well (even if controversial) but for the tendency of the human animal toward misunderstanding in any form of communication.  This presents courts with novel opportunities to consider the admissibility and meaning of the discourse of emoticons.

While the utility of a symbol is grounded in its ability to prompt instant recognition, symbols themselves are not entirely uniform and may differ in appearance depending on the platform employing the emoticon’s underlying code.  Cosmetic differences are but one facet of the introduction of symbolic speech in the judicial lexicon. Emoticons, like words, have secondary meanings and nuance. Given that multiple meanings may attach to a single, superficially innocuous icon, cavalier use may be incautious.  

Law Professor Eric Goldman of Santa Clara Law School, proprietor of the Technology & Marketing Law Blog, has tracked the presence of emoticons in judicial records, observing remarkable growth.  

A recent overview of case law from the beginning of 2019 to the present provides some indication that the courts are not shrinking from the task of recognizing and interpreting emoji.  While in one case a criminal court obtained the testimony of detectives expert in pandering, pimping, and prostitution to interpret emojis said to represent an invitation to participation in those activities, most of the cases mention emojis as if they were commonplace, or omit them and note that omission as with any other editorial intervention.

While this may be some indication of a willing judicial adoption of this emerging form of communication, in light of ongoing and often charged controversies over the use and meaning of language, it is unlikely that issues attending the emergence and widespread use of emoticons have as yet been explored in full.

What follows gathers from online resources, scholarship, journalism and  case law to illustrate the emerging discourse concerning emoticons. A bit of leaven is included at the end.

References

Emojopedia   A dictionary of emoticons with articles about the development, usage and meaning of emoticons, called emojiology (after etymology),  and current news.

Legal Cheek:  Twelve Famous Cases in Emoticons

Netlingo   A dictionary of internet terms and symbols, including news and usage data. Some entries merit the acronym NSFW (not safe for work).

The Smiley Company  History and development of an array of smileys, from a global licensing  company.

The Smiley Dictionary  An apparent user created contribution to the resources of Computer Science House, a special interest group of Rochester Institute of Technology.

Twitter:  @emoticoncaselaw

Wikipedia:  List of Emoticons    Provides an overview of types of emoticons and the underlying coding languages in use in producing them.  

Scholarship

Goldman, Eric.  Emojis and the Law. 93 Wash. L. Rev. 1227 (2018)

Goldman, Emojis and the Law Worksheet, 2019.

Kirley and McMahan:  The Emoji Factor: Humanizing the Emerging Law of Digital Speech (2018 SSRN Advance Copy of Tennessee Law Review)

Media Discussion

2015 01 29 New York Times:  At Silk Road Trial, Lawyers Fight to Include Evidence they Call Vital: Emoji.

2015 12 07 ABC (Australia)  Emoji and The Law: Threatening Violence

2016 03 18 Wall Street Journal Law Blog:  The Supreme Court Emoji Challenge (Paywall)

2016 10 16 Yahoo Finance:  Your Silly Emojis are Going to Court

2018 01 30 9to5Mac: Court Ruled Emoji Constituted Rental Contract

2018 05 03 Lawyers Mutual Byte of Prevention Blog:  How an Emoji Can Land You in Court

2018 06 27 Wired:  Academics Gathered to Share Emoji Research, and it was Hot

2019 01 31 Technology and Marketing Blog:  Emoji Law 2018 Year in Review

2019 02 07 Recorder:  Getting Ready for the Emoji Law Revolution

2019 02 11 Technology and Marketing Blog:  What’s New in Emoji Law? An Interview

2019 02 18 The Verge:  Emojis are Showing Up in Court Cases Exponentially, and Courts are Not Prepared

2019 02 19 Legal Cheek:  Why Courts Need to Become Fluent in Emoji    

2019 02 19 9to5Mac: More and More Cases Require Courts to Interpret the Meaning of Emoji  

2019 02 19 Gizmodo:  How Would You Like Having Your Emoji Messages Read Out Loud in Court?

2019 02 19 Mystal, Above The Law:  Is Emoji Law Going to be a Thing2019 02 19 Geek.com:  Number of Emoji References in U.S. Court Cases Growing Exponentially

2019 02 19 Futurism:  The Byte: Judges Are Struggling to Interpret Emoji in Court Cases

2019 02 20 EDiscovery Daily Blog:  Emoji are Showing Up in Court Cases More and More

2019 02 22 Washington Post:  Your Honor It Is an Eggplant: Lawyers Call for Guidance on Interpreting Emoji

2019 02 24 The Tartan:  Courts are Unprepared for the Appearance of Emojis in Cases

2019 02 25 CNBC (Mystal) Emojis Can Now Be Used as Court Evidence:  Here’s What to Expect

Recent Case Law

Blount v. State, NO. 14-17-00988-CR (Tex. App.).  April 22, 2019.       Text emojis noted in brackets without description, in the same fashion as deleted expletives.

Cannon v. Southern University Board of Supervisors, No. 17-527 – SDD – RLB (M.D. La. April 12, 2019)  Use of emoji in response to request for admissions as well as threatening language part of evidence indicating sanctions appropriate.

DeLucia v. Castillo, CASE NO. 3:19-CV-7 (CDL) (D. Ga.) April 23, 2019.  Emojis included in evidence of communications with child in abduction case.

Commonwealth of Pennsylvania v. Hackenberger, J-S72014-18 No. 120 MDA 2018 (Superior Court) April 16, 2019.   Unpublished opinion.  Text messages using emoticons relevant in child sexual exploitation case.

Commonwealth v. Hunt, 18-P-106 (Mass. App.) February 22, 2019.  (Unprecedential.) Discussion of evidence suggesting witness bias in domestic assault case includes texts, including emojis.

Doe v. University of Kentucky, 5:17-cv-00345-JMH (E.D. Ky.) January 18, 2019.  Post-encounter text, including emoji, part of evidence in case alleging university negligence in investigation and presentation of Title IX complaint.

Gonzalez v. State, 3-CRNo. 08-14-0029  (Tex. App. 2019). April 9, 2019.  Court omits emojis and editorial remarks concerning language where the parties have placed no emphasis on the emojis.  

People v. Jamerson  A153218 (Cal. App. 2019).  February 6, 2019. (Unpublished.) Detectives offer expert testimony concerning the meaning of crown and other emojis in pimping and pandering case.

State v. Bey,  2019 Ohio 423 (2019)  Gun emojis posted on Facebook page part of evidence in criminal trial.

State v. Polchert, Appeal No. 2018AP849-CR  (Wis. App., 2019) March 26, 2019.  Emoji showing ‘broken heart’ included in evidence of online exchanges in case charging use of computer to commit sex crime.

State v. Berrios, AC 40043 (Conn. App. 2019).  February 5, 2019. Emojis noted as redacted in transcript of text exchange in witness intimidation case.

State v. Foster, No. E2018-01205-CCA-R3-CD (Tenn. Crim. App.) April 10, 2019.  Emojis noted in transcripts of exchanges in case of aggravated rape of a minor.

State v. Potter,  No. E2015-02261-CCA-R3-CD (Tenn. Crim. App. 2019) February 5, 2019. Smiling emoji noted and redacted in transcript of email exchange in first degree murder case.

…and some comedic observations (NSFW):

2012, Season 37:  Saturday Night Live:  Embarrassing Text Message Evidence Proves a Man’s Innocence

The Electronic Public Square: The President’s Twitter Account Is Public Forum. In Permitting Political Commentary on Twitter, the President May Not Preclude or Banish Authors Offering Criticism

Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al.No. 17 Civ. 5205 (NRB) (May 23, 2018).


The United States District Court for the Southern District of New York required seventy five pages with which to examine the nature of Twitter, Tweets, and Retweets, the nature of the President’s actions in creating and posting to a Twitter account, and the constitutional limits on inhibiting speech in a virtual public forum.  

In short:  a Twitter account operated by the President is a public forum in which protected political speech occurs.  Precluding critical views is unconstitutional viewpoint discrimination.

No doubt the seventy five page exegesis was crafted with an eye toward further review. Whether this will occur is not known, but what is of note is not entirely the federal district court’s primary determination, which has the virtue of appealing to a commonsensical “come one, come all” view of public debate in the new millennium, but rather some of the court’s supporting determinations are somewhat intriguing.

The trial court declined to opine concerning whether the judiciary could enjoin the executive, a matter wisely sidestepped as, the court offered, it is not necessary in declaratory proceedings.  More interesting, however, is the court’s view that even if the President could not be enjoined, his staff could, which some may perceive to be something of a topsy-turvy view of agency. In addition, the court noted that it had at hand recourse to the All Writs Act.  With the person considered to be suitable for induction before the court, and thus subject directly to the court’s orders, it is not easy to apprehend why the All Writs Act would be needed.

Most beguiling is the notion of “readership standing” found to support the claims of the Knight Institute.  The outer limits of such a concept of standing, envisioning injury occasioned by not being able to read a Twitter poster as often or as clearly as wished, remain for exploration, but this does seem to be, at best, quite an expansive view of what sort of interest or injury may support standing.  In this case, however, the Knight Institution’s claim may be worthy of merit by virtue of some semblance of concreteness, there having been alleged an existing relationship with one of the banished readers. However, it is not inconceivable that future cases will test this notion: time will tell.  

Knight Foundation, et al. v. Trump, et al., 2018.05.23 Order on Motions for Summary Judgment

Signs of (Criminal) Times: Relevant Evidence Suggesting Ethnic Hatred Admissible

United States v. Mikhel and Kadomovas, Nos. 07-99008, 07-99009 (9th Circuit) May 9, 2018.


Foreign national defendants tortured and killed five individuals and dumped their bodies in a reservoir near Yosemite National Park.  

Without asserting any identifiable protected belief or association concerning Nazism, defendant Kadamovas claimed error in the introduction in evidence of a weapon bearing symbols of Nazism and in introduction of a disparaging remark about a Jewish murder victim without mentioning the victim’s name.  

The Ninth Circuit found no prejudicial error implicating any First Amendment right.  

Although the Supreme Court has found introduction of irrelevant evidence of association with racially identified groups to be violative of Fifth Amendment rights, the introduction of the weapon had bearing on defendant’s participation in a conspiracy and the introduction of the disparaging statement was relevant to identifying a victim.  Where there was no improper use of evidence to inflame the jury: no Fifth Amendment violation could be found.

United States v. Mikhel (9th Cir., 2018)

(Un)Fair Notice? California’s Reproductive Services Notice Legislation Faces Opposition Before the United States Supreme Court

National Institute of Family and Life Advocates v. Becerra, et al., No. 16-1140 (S. Ct.).  Oral argument scheduled for March 20, 2018.


California has enacted legislation intended to notify women of the availability of aid in accessing contraception or abortion services.  Article 2.7, Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, 123470 to 123473. California Code (2018 Edition). The statute appears to apply widely. However, through a series of exemptions, the FACT Act actually requires only that pregnancy centers that are not medically licensed by the state provide notice of that status to clients and that pregnancy centers that do not offer abortion provide notice to clients about available services and how to access those services.

Pregnancy centers and their advocates are challenging the FACT Act in the United States Supreme Court, demanding that the Court hold the FACT Act unconstitutional in violation of the First Amendment as it, in their view, compels speech contrary to the purpose of the pregnancy centers..  The pregnancy centers sense that they have been compelled to advertise for that which they find contrary to conscience. California and its supporters demur, arguing, among other matters, that the FACT Act is a neutral generally applicable law deserving of no special constitutional protection even if it imposes a minor burden in compliance with its provisions.  Moreover, this general law does not discriminate on the basis of pregnancy center’s points of view concerning abortion. In the state’s view, petitioners are not hampered in their ability to speak nor does the provision of the notice the state requires constitute an endorsement.

Both parties contest the proper standard of judicial review:  Petitioners argue strict scrutiny is required, while the state argues a more lenient standard ought to apply, as in the state’s view, the act may be analogized to state regulation of commercial speech.  

Petitioners decry what they foresee as adverse consequence if a lesser standard of review is adopted: petitioners see this as opening the door state regulation of speech in unprecedented, and unwelcome, forms.   The state’s supporters argue that the public must know and in particular pregnant women must be made aware, of choices during pregnancy, particularly as, in their view, pregnancy centers are not clear in their purposes, and that the time-sensitive results of not being fully informed about choices can be life altering.

If the instant case were not challenging enough, amici remind the court that similar issues are percolating in lower federal and in state courts.  Whether the Supreme Court will be impressed by a recent Fourth Circuit opinion disfavoring notice requirements similar to those in issue here is impossible to predict.  The Court has no obligation to follow the reasoning of an inferior court yet neither need the Court ignore a determination that does not square with the Ninth Circuit opinion that paved the way for the Supreme Court to grant certiorari in this case.

Contentiousness concerning reproductive issues does not appear to have diminished in the decades following the Supreme Court’s recognition of privacy interests attaching to such decisions in Griswold v. Connecticut  381 U.S. 479 (1965) and Roe v. Wade,  410 U.S. 113 (1973 ).  Time appears only to have amplified such concerns, perhaps not without good cause, as technology has evolved to aid in health choices but with it has come new dimensions of choices to be encountered at the beginning and end of life.  Interstitial legal arguments over enunciated and implied First Amendment guarantees have ensued, and continue. The professionalization of views on reproductive matters is readily apparent upon even a cursory review of the number of advocacy organizations submitting as amici in this case.

There is little doubt that oral argument will be lively.  In anticipation thereof, the merits briefs are linked below.  An overview of amicus submissions is also attached. The principal briefs were obtained through ScotusBlog, a site without which there would be general unawareness of developments at the Supreme Court.  The overview of amicus submissions is Just Lawful Blog’s own.


20180108123359506_2018.01.08 NIFLAvB Brief of Petitioners FINAL

20180108124518914_2018.01.08 NIFLAvB Joint Appendix FINAL

20180116184704477_16-1140npacUnitedStates

20180220120759477_16-1140 Brief For Respondent

20180220155129758_2018.02.20.ussc.16-1140.jak.state_resp_merits_brief

20180313112437769_2018.03.13 NIFLAvB MERITS Reply Brief

20180316160703572_16-1140 BS Letter

NIFLA v. Becerra, No. 11-1160 Amicus Submissions 2018 03 18

Power and Process: Supreme Court Distinguishes Jurisdictional and Statutory Limitations

Hamer v. Neighborhood Legal Services of Chicago, No. 16-658, 583 U.S. ____ (November 8, 2017).


Determining the time for initiating appeal ought to be perfectly clear, such that no party need fear forfeiture of rights because of untimely filing of a notice of appeal.  

Not so!  Where both statutory substance and procedural rules provide incongruent time limitations for filing appeals, or for relief from those limitations, legal catastrophe may ensue.  

While there may be some leniency available if a procedural (“mandatory claims processing”) rule is involved, failure to conform to a jurisdictional measure will forfeit appeal.  

The Supreme Court has reiterated in Hamer that only Congress can confer jurisdiction on federal courts.  Accordingly, where Congress has provided by statute a time limitation for filing an appeal, that provision is jurisdictional.  Failure to adhere to jurisdictional statutory limits is fatal to appeal.  Where a court lacks power to adjudicate a matter, no relief can be granted.

In contrast, courts may arrange the order of their affairs through procedural rules for processing claims.  Those rules are not jurisdictional and may, at times, be relaxed as circumstances may require.

Practitioners may find this guidance of some assistance, but no one with any sense would rest easy without scouring both statutes and rules to determine and to document decisions about appellate procedure.

16-658 Hamer v Neighborhood Legal Services 2017 11 08

All Politics Is Global: Federal Court in Northern California Enjoins Enforcement of Canadian Order Directing Google to Complete a Global Take Down of Canadian Enterprise’s Links

Google, LLC v. Equustek Solutions, et al., No. 5:17-cv-04207-EJD (N.D. Cal.).  Order granting injunctive relief entered November 2, 2017.  


Two Canadian computer hardware sales and distribution entities became embroiled in a trade secrets controversy.  Defendant here, Equustek Solutions, was successful as plaintiff in Canada against its rival Datalink, but was not successful in locating Datalink to pursue the remedies it had secured.  

In Canada, Equustek sought an order directing Google to remove website links relating to Datalink.  Google refused.  However, when Equustek obtained injunctive relief against Datalink, Google removed more than three hundred Canadian-based result links regarding Datalink.

Equustek sought and was granted an injunction directing Google to delist globally all links to Datalink.  Google appealed to the highest levels of Canadian courts.  Google lost.  

Google initiated an action for declaratory relief in federal court in the Northern District of California, seeking to enjoin enforcement of the Canadian order.  Google argued that the Canadian order ought to be unenforceable in the United States because it disregards the immunity afforded Google by the Communications Decency Act Section 230, which immunizes interactive service providers from liability for content provided by others.  

The Canadian courts saw Google as the primary source of information provided about Datalink, which would make Google a content provider for Section 230 purposes.  The addition or subtraction of information such as datalinks is an editorial function.  However, as Google is not a content provider but has been treated by Canada as such, the Canadian order directing Google to remove links to Datalink globally may be enjoined, as it is in derogation of the immunities provided by Section 230.  

The federal district court noted that the Ninth Circuit has rejected the characterization of service providers as publishers:  

                   “The Ninth Circuit has held that, regardless of the underlying cause of action, a claim treats an intermediary as a publisher when it requires the intermediary to remove third-party content. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009). The Barnes panel held that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” Id. at 1103. The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.”

                  The federal court was unhesitating in what it perceived to be the perils of the Canadian court’s conclusion, which in its view eviscerates Section 230.  Requiring internet service providers to remove third party content would transform them into content providers and strip them of the protections of Section 230, which protections are intended to foster diverse exchanges of information.  

Not shirking from its perception of danger, the United States District Court concluded that Canada’s order “threatens free speech on the global internet.”

____________________________________________________________________

Some offhand editorializing:  the court appears to have been more than a little feisty, given that Equustek did not submit a brief in opposition to  Google’s motion for injunctive relief.  One defendant wrote to Google’s counsel and to the clerk of the court to stating that there would be no defense to Google’s suit, but also opining that Google’s motion for injunctive relief was unfair.

And a note about what was not reached:  because Google was successful on its Section 230 motion, the court did not find it necessary to consider questions of international comity.  

Google LLC v. Equustek Sols. Inc. (N.D. Cal., 2017)