Junk in the Trunk? Officers’ Search Based on Car Rental Agreement Violates the Fourth Amendment, Supreme Court Concludes

Byrd v. United States, No. 16-1371 (S. Ct.) (May 14, 2018).

Something seemed amiss in petitioner Byrd’s driving, according to Pennsylvania State Troopers who stopped him and, on discovering that he was not an authorized driver of the rental vehicle he occupied, searched the trunk, where 49 bricks of heroin and body armor were found.  The federal district court in Pennsylvania and the Third Circuit Court of Appeals denied Byrd’s motion to suppress the fruits of an unlawful search, observing that Byrd’s failure to be shown on the contract as an authorized driver of the rental car negated any expectation of privacy.

The Supreme Court has disagreed, holding that the expectation of privacy that is central to determinations of whether searches comport with the Fourth Amendment cannot be destroyed by tangential questions such as the insurance consequences of permitting an unauthorized driver to operate a rental car.

Freedom from unreasonable searches and seizures is essential to liberty, the Court observed, reflecting on the Framers’ concern with the indignities of general warrants that, among other matters, precipitated rebellion against the Crown.  

While privacy expectations in an automobile may be diminished, the more salient question is whether any search violates a Fourth Amendment interest, which requires examination of privacy interests, which need not, but certainly may be, grounded in common law property concepts.  While an individual need not have a common law property interest in a place to be searched to claim an expectation of privacy, it does not follow that legitimate presence alone confers Fourth Amendment rights. While not susceptible of precise and exhaustive definition, the Court observed that privacy expectations must come from outside the Fourth Amendment, either through property concepts or through societal recognition.  

Thus where rights of exclusion attach to possession or control, reasonable expectations of privacy flow from those rights of exclusion, and this principle controls the outcome for Byrd.

The Court declined to indulge either party’s “always” or “never” arguments concerning the rights of unauthorized drivers, finding the parties’ positions to be too broad or too restrictive.

A legitimate presence in an automobile will not of necessity confer a legitimate interest in prohibiting a search of a glove compartment, the Court has previously held, but from this it does not follow that Byrd had only the interests of a passenger, which he would have been had the authorized driver been behind the wheel.   In the Court’s earlier case, the Court recognized an interest in mere presence but the accused in that case did not argue that presence included an interest in freedom from search of the connects of the vehicle.

The exercise of dominion and control, and the right to exclude, are critical determinants that exist without respect to restrictions in the rental agreement, which has little bearing on the driver’s expectation of privacy, a point agreed to by the government.

Although the Court’s property and contract analysis might have provided some comfort to Byrd, the victory of recognition of his privacy interests at the Supreme Court does not conclude the matter.  Notwithstanding dominion and control, and rights of exclusion, was Byrd’s status, because of potential subterfuge in arranging the rental, no better than that of a thief, which would vitiate all expectations of privacy?  Were the officers in possession of sufficient information to believe that at the car contained evidence of a crime, thereby legitimizing a warrantless search under established automobile exceptions case law?

Both questions remain for future development on remand.

One concurring justice noted that the majority would have done well to be more definite in determining when an automobile might fairly be said to be an “effect” for Fourth Amendment purposes, to which privacy expectations might attach.    Another would not disregard the rental agreement nor the circumstances obtaining the rental as sources of information bearing on the availability of a Fourth Amendment claim.

Byrd v. United States, No. 16-1371. S.Ct. May 14, 2018

Gimme Shelter! Not in Texas, Fifth Circuit Concludes, Vacating Injunction That Would Have Precluded Anti-Sanctuary Cities Measures

City of El Cenizo v. Texas (5th Cir., 2018)City of El Cezino, et al. v. Texas, et al., No. 17-50762 (5th Cir.) May 8, 2018.

The Texas legislature sought to nip in the bud local “sanctuary city” self-selection measures through which Texas localities promised not to cooperate with federal officials in enforcing immigration detention and cooperation policies.  Texas passed legislation which now forbids such avoidance of federal law.  Localities rebelled, asserting violations of the U.S. Constitution: all but one of the harms alleged was found to lack merit.

Texas Government Code 756.053(a-b) forbids local governments from adapting policies or practices inhibiting immigration enforcement.  The Texas Code of Criminal Procedure requires local compliance with federal Department of Homeland Security requests requiring notification of federal authorities before detainees who may be in violation of immigration laws are released.  Civil and criminal penalties attach to failures to conform to these measures.

A federal district court rejected general claims that federal law preempts Texas anti-sanctuary cities measures but granted injunctive relief concerning cooperation measures.  The trial court found requirements forbidding ‘endorsement’ of anti-federal immigration measures fatally overbroad, vague, and viewpoint discriminatory. The trial court found the statutory proscription of “materially” limiting federal immigration provisions defective as vague. Finally, the district court found the detainee mandates violate the Fourth Amendment.

Texas sought stays of the injunctions pending appeal, succeeding in part on the Fourth Amendment and preemption claims.  The “material” limitation survived review, but the “endorsement” provisions did not.

The Fifth Circuit observed that there is no express preemption in federal immigration law.  Here, field and conflict preemption are in issue.

Although field preemption prohibits state or local measures where Congress has manifested an intent to occupy the regulatory landscape, and although an intricate web of federal and state cooperation and compliance measures are already in place, the Fifth Circuit failed to perceive field preemption, emphasizing that federal law controls how local authorities will cooperate but local law controls whether they may do so. Not only would the Tenth Amendment prohibit the sort of compelled action imagined if a federal ‘sanctuary’ measure were enacted, but if preemption were found, much of the extant local cooperation measures would fall away.

Conflict preemption considers whether state or local law thwarts Congressional objectives:  none were found here, the Fifth Circuit held, because the state prohibitions on material limitations of cooperation with federal immigration officials envision cooperation, not conflict. Neither can conflict preemption be found where federal assistance and cooperation agreements are permitted but not required, and where the Tenth Amendment would again prohibit federal compulsion of local enforcement of federal law.  

The state statute’s prohibition on preventing inquiry into immigration status is not infirm where the Supreme Court has held that local officers may inquire about the immigration status of persons  lawfully detained if reasonable grounds exist to believe a detainee is improperly present.

The state prohibition of “endorsement” of prohibiting or materially limiting immigration enforcement may be enjoined, as it impedes core political speech by elected public officials. As non-elected employees were not before the court, the court declined review of their First Amendment interests.

Local officials have standing to challenge the detainee mandates in that their refusal to do what is required would jeopardize their positions. Notwithstanding the real potential for injury, a facial Fourth Amendment challenge must fail, as it is not possible to establish that each and every immigration and customs enforcement request violates the Fourth amendment. Moreover, current administrative warrant practices require attestation to probable cause for removability and the collective knowledge doctrine permits imputing probable cause to local officials.

Finally, probable cause of criminality is not required to support detention. Persons lacking capacity through illness or legal infirmity may be seized without probable cause of criminality.  Where the federal Immigration and Customs Enforcement detainee laws require state officials to carry out federal detention requests, a Massachusetts determination that state officials had no independent immigration enforcement powers is not on point. Significantly, local officials are not bound to overlook an absence of probable cause, particularly where valid identification would excuse continued detention. Imagined subsequent changes in federal law abandoning probable cause requirements cannot control current practice.

The Fifth Circuit rejected a vagueness challenge to the ‘materiality’ qualification for interference with federal law enforcement. Specific examples of ‘material’ interference have been presented and the notion of ‘materiality’ has been well replicated in securities and professional responsibility laws. Any as-applied analysis must await cases with greater concreteness.

The Fifth Circuit concluded that injunctive relief in all but the endorsement claims must be vacated.  

City of El Cenizo v. Texas (5th Cir., 2018)









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)

A Word, Please? Chatting With Jurors Is Not Guaranteed

Benson v. Tyson Foods, Inc., No. 17-40161 (5th Cir.) May 1, 2018.

A jury failed to find for Benson in her Americans with Disabilities Act case against Tyson Foods.  She appealed from the federal district court’s denial of her request for a new trial and from her lawyer’s request to interview jurors.  Both appeals were without merit, the Fifth Circuit has concluded.

Fifth Circuit precedent holds that jurors’ privacy interests outweigh those of litigants’ in conducting juror interviews.  

The appellate panel here observed that Fifth Circuit precedent is flawed in its perception that First Amendment press and public rights are distinguishable. However, the Fifth Circuit cautioned that courts ought to consider whether there exists any state interest in inhibiting counsel’s conversations with consenting jurors.  If such an interest is found, it must be clearly articulated to ensure conformity to the Constitution and to facilitate appellate review.

Writing separately, Circuit Judge James E. Graves, Jr. opined that the precedent relied upon need not control.  Current local rules concerning juror communications may be infirm in that any lawyer communication at all with any juror on any case tried by the lawyer would be forbidden without court approval.  That other jurisdictions’ rules are also problematic should serve only to encourage a hard look at the rules’ utility and constitutional propriety.

Judge Graves would have found an abuse of discretion in summarily dismissing the request for jury interviews, but that would not end the matter, for the abuse of discretion would not affect any substantial right Benson might have had in her lawyer’s request for interviews.  She had no right to any such request, as her motion for a new trial had been denied.

Benson v. Tyson Foods, Inc. (5th Cir., 2018)




What’s Done is Done: Adding Post-Judgment Claims and New Defendants Will Not Overcome Res Judicata

Hyman v. Cornell University, No. 17-2631 (2nd Cir.) May 9, 2018.

Hyman was sanctioned by Cornell University for harassing a faculty member.  Her suit alleging violations of her First Amendment and Title IX rights was dismissed in 2011. The suit cannot be revived through addition of post judgment facts that in essence concern the same facts and occurrences in her original suit that do not present new claims.  The addition of two new defendants to the sixteen initially named will not change the result where the university adequately represented all the parties in privity in the original case.

Hyman v. Cornell Univ. (2nd Cir., 2018)

Hyman v. Cornell Univ., 834 F.Supp.2d 77, 280 Ed. Law Rep. 692 (N.D. N.Y., 2011)

Sixth Circuit Rejects as Unconstitutional Ohio’s Imposition of “No Abortion” Conditions on Unrelated Health Care Grantees

PLANNED PARENTHOOD OF GREATER OHIO and PLANNED PARENTHOOD OF SOUTHWEST OHIO REGION v. HIMES, Interim Director of the Ohio Department of HealthNo. 16-4027  (6th Cir.) April 18, 2018.

A 2016 Ohio statute directed its Department of Health to ensure that no federal health care monies were provided to any entity or affiliate that offers elective abortion services. The entities who received notices that their grants would be terminated offered health care services for women exclusive of abortion.

This week the United States Court of Appeals for the Sixth Circuit permanently enjoined enforcement of the Ohio statute, having concluded that the statute imposed unconstitutional conditions on the rights and interests of the grantees.  As the government may not deny, directly or indirectly, rights secured by the constitution, neither may the government require forfeiture of a constitutional right in order to obtain a government benefit. The Ohio scheme burdened federal health care grantees not because of their own activity but because of the activity of affiliates.  This form of “contamination” causing the forfeiture of the grantees’ interests in federal funding is constitutionally impermissible, the Sixth Circuit opined. The court observed that the United States Supreme Court has found constitutionally impermissible a government mandate that funded entities adopt anti-prostitution and anti-sex trafficking policies. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013).  

The government is not forbidden from preferring some policies over others, and it has long been established that the government need not pay for elective abortions.  This has at times resulted in some accounting ingenuity involving the walling off some funds from others so that a truce, however uneasy, might be struck between the competing interests of the government and the recipients of its funding.   No such practice would be permitted under Ohio’s scheme, however, which would hobble grantees’ activities globally, precluding participation in activity unrelated to their funded missions because of the statutory strictures.

In the course of declaring the statute fatally defective, the federal appellate court rejected the state’s challenge to plaintiffs’ standing, noting the state offered no case that would contradict longstanding holdings that providers may advocate on behalf of their clients.  Perceiving that it is the imposition of the unconstitutional condition on the recipient that offends, and not its antecedents, the court declined the state’s invitation to narrow the unconstitutional conditions doctrine to apply only where an entitlement is in issue or only where the condition might be said to impose an undue burden on access to abortion services.  

Planned Parenthood Ohio v. Himes (6th Cir., 2018)


Immunity or Impunity? Yelp Resists Take-Down Order in California Defamation Case

Hassell v. Bird, No. S235968, Supreme Court of California.  Oral argument April 4, 2018.

Immunity from liability is a legal status to be cherished, enjoyed by the government as an artifact of the notion that the king can do not wrong, and more currently vitally enjoyed by internet sites such as Yelp, which provides information about commercial entities and reviews of products and performance.  Section 230 of the Communications Decency Act of 1996 insulates web hosts from liability for third party content. The legislative notion was that this shield would allow the robust development of the internet unhampered.

More than twenty years later, it is clear that Section 230 does not address in full online reality.  In this case, California attorney Dawn L. Hassell obtained a judgment finding that former client Ava Bird had posted a defamatory review on Yelp.  Hassell obtained an order directing Yelp to remove the defamatory material.

Yelp refused.  

Yelp argues that the take-down order abrogates the immunity granted by Section 230, that the order is an injunctive prior restraint in violation of Yelp’s First Amendment rights, and that Yelp, a stranger with awareness of but non-party status in the defamation litigation, was denied due process in that proceeding.  Yelp alleges error in the entry of the take-down order, requiring vacation, where Yelp was not afforded notice and an opportunity to appear to assert its immunity and any other interests it might have asserted.

Hassell submits that the Supreme Court of California will search in vain for a First Amendment violation, for no constitutional protection attaches to defamation.  Hassell perceives the injury asserted to result from the take-down order to be without foundation in law, as precedent exists to find that those who have furthered others’ wrongdoing may be required to participate in its redress.

This case stimulated tremendous stir when appellate proceedings commenced more than a year ago.  It is not known why the Supreme Court of California permitted the case to languish until last week, when oral argument was held.  There have been rumors of and some legislative action in fact concerning amendment to Section 230 limiting its immunizing sweep, most recently with respect to human trafficking, which in itself has engendered further controversy.  

Whatever the reason for the court’s seeming reluctance to enter the fray, at oral argument the court wrestled with the issues while giving little inclination of its inclinations, although media and others have offered their views.  While not hostile to either party, the court, as chief adjudicative body for the state, cannot be other than concerned about the consequences of an insurgence of defiance of the authority of the courts, as shown by refusal to comply with the take-down order in issue in Hassell v. Bird.

Hassell v. Bird confirms, were there any doubt, that Yelp and others will not lightly relinquish the sweeping immunity extended to private parties, paralleled only by that reserved to the government and limited others, that it enjoys by virtue of Section 230. Nonetheless, the legislative boost to technological advancement that Section 230 provides cannot be said to have eviscerated the common law, yet that will be the perceived result if Hassell is unsuccessful in defending issuance of the take-down order.

Intermediary redress does not seem to have been seriously suggested. Remand to provide Yelp with the due process it states it was denied appears less savory than outright victory (or defeat), yet remand would permit the Supreme Court of California to avoid fashioning precedent that might prove more confounding than curative.  

Neither have somewhat homespun, yet arguably effective, mechanisms been entertained with enthusiasm.  There is no known impediment to Hassell or her firm posting, at the location of Bird’s offending commentary, notice and a copy of the judgment of defamation.  While not offering relief as complete as the erasure promised by removal, in some instances self-help may prove superior to enforcement litigation.

A chorus of technology and First Amendment advocacy, predominantly in support of recognition of Section 230 immunity in Yelp,  has accompanied this litigation on its way to its presentation to the Supreme Court of California. Nightmarish scenarios of judgments and take-down orders obtained through collusion and fraud have been offered for the court’s consideration.  

The April 4th oral argument has not yet been added to the Supreme Court of California archive, but those interested may check for developments here: https://newsroom.courts.ca.gov/news/supreme-court-oral-argument-webcast-archive.

The parties’ submissions, both on the merits and in petition for review, and amicus curiae materials may be reviewed through these links:

Petition for Review:

Petition for Review by Nonparty Yelp

Answer to Petition for Review by Respondent Hassell and Hassell Law Group

Reply to Answer to Petition for Review by Nonparty Yelp

Merits Briefs:

Yelp Opening Merits Brief

Yelp Request for Judicial Notice

Hassell Answering Merits Brief

Yelp Reply Merits Brief

Yelp Motion for Judicial Notice

Amicus Briefs:

In Support of Yelp:

ACLU of Northern California et al. Amicus Brief

AirBnB et al. Amicus Brief

Ava Bird Amicus Brief

Change.org et al. Amicus Brief

Eugene Volokh et al. Amicus Brief

Eugene Volokh et al. Revised Amicus Brief

Eugene Volokh et al. Revised Amicus Brief

First Amendment and Internet Law Scholars Amicus Brief

Glassdoor and Trip Advisor Amicus Brief

Internet Association et al. Amicus Brief

Public Citizen and Floor64 Amicus Brief

Reporters Committee for Freedom of the Press et al. Amicus Brief

Xcentric Amicus Brief

In Support of  Hassell:

Chemerinsky et al. Amicus Brief

In Reply to Amici by Yelp:

Yelp Reply to Amicus Brief

In Reply to Amici by Hassell:

Hassell Brief in Reply to Amici

Sic Transit: Court of Appeals for the District of Columbia Circuit Considers Clash Between Church and Transportation Authority Concerning Religious Advertisements

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 17-7171 (D.C. App.) Oral argument scheduled for March 26 , 2018 at 9:30 a.m.

In December of 2017, a legal scuffle broke out between the Archdiocese of Washington and the Washington Metropolitan Area Transit Authority (WMATA).  The Archdiocese sought to enjoin WMATA’s refusal to publish the Archdiocese’s “Find the Perfect Gift” advertising campaign, which had been published by WMATA on its regional buses prior to its adoption of guidelines forbidding advertisements that support or oppose religion. The United States District Court for the District of Columbia denied injunctive relief, opining that the Archdiocese had little chance of succeeding on the merits of its claim, as no First Amendment violation could be found. This appeal ensued. Presented here are sketches of the four amicus submissions of entities and persons supporting the Archdiocese of Washington.

The Becket Fund for Religious Liberty, United States Senator Jeff Flake, and the International Society for Krishna Consciousness

Amici submit that this is not one of those difficult matters in which care must be taken to scrutinize the record for subtle, yet unlawful, departures from sound First Amendment principles.  To the contrary, WMATA’s guidelines flat out forbid advertising with religious content, thereby establishing without artifice WMATA’s targeting of religion. The Supreme Court has conclusively held that a law which targets religious beliefs because they are religious beliefs is not constitutionally supportable.  

Moreover, there is no public benefit or forum exception to Free Exercise jurisprudence. The government lacks authority to preference secularism over religion. The Free Exercise Clause of the First Amendment is not subservient to geography or purpose.  The notion that there is no constitutional offense because the Guidelines concern a limited public forum is lacking in legal support. Free Speech and Free Exercise guarantees are distinct and require distinct analyses.  The district court’s conflation of Free Exercise concepts with Free Speech precepts is requires reversal.

There is no ordering principle that would permit or require Free Exercise analysis only after Free Speech analysis.  The WMATA guideline is not neutral and cannot be seen as being without burden merely because others are burdened by WMATA.  Furthermore, the WMATA guidelines cannot be said to be generally applicable where clear preferences are accorded non-religious speech and all religious expression is forbidden.

Becket Fund et al Amici

First Liberty Institute and The Ethics and Public Policy Center

Amici First Liberty Institute and The Ethics and Public Policy Center urge the United States Court of Appeals for the District of Columbia Circuit to hold that the United States District Court for the District of Columbia erred in refusing to enjoin the operation of Guideline 12 of the advertising policy of the Washington Metropolitan Area Transit Authority (WMATA).  Amici join the appellants in seeking reversal because the WMATA guidelines manifest unconstitutional viewpoint discrimination. WMATA’s guidance is not the viewpoint neutral, content based restriction envisioned by the trial court. WMATA has published advertisements expressing WMATA’s view of an an acceptably secular, commercial Christmas. Simply stated, the government may not favor one speaker over another, no matter what sort of forum is in question.  The WMATA guidelines facially forbid religious messages. This error cannot be salvaged, by the inclusion of ‘promotion’ or ‘opposition’ to religious language, for this itself sets unacceptable viewpoint parameters. Even if the regulation were seen as subject based it is nonetheless viewpoint discriminatory, because WMATA allows some Christmas messages but not others.

The ban on  religious messages does not restrict subjects,but forbids expression of religious and secular views on the same subjects.  The federal district court’s assessment of permitted advertising illustrates how easy it is to pick and choose among acceptable and unacceptable religious or other messages, which compounds the deficiencies of the regulation.  Characterizing a religious message as non-religious was sufficient to save the Salvation Army’s advertisement, notwithstanding that the Salvation Army is an operating entity within the Christian Church. Mentioning Mormons, as in an advertisement for The Book of Mormon, was seen to be permissible because the topic was not religion but ridicule.  The constitutional instability of the WMATA policy is underscored by awareness that while The Book of Mormon advertisement was acceptable to WMATA, an advertisement inviting inquiry about Mormons (Church of Jesus Christ of Latter Day Saints) would not be permitted.

The government may not define for people what can be said about otherwise permissible topics:  that is the essence of viewpoint discrimination and is amply illustrated here.

First Liberty_Ethics Amici

The Franciscan Monastery

The Franciscan Monastery of the Holy Land in America intended to promote tourism rather than religion in an advertisement rejected by WMATA.  The rejection of this advertisement provides evidence refuting the trial court’s statement that the Salvation Army’s advertisement was acceptable because its message was constitutional within permissible categories of speech.

Franciscan Monastery Amicus

The United States of America

The constitutional infirmity of viewpoint discrimination is not difficult to grasp:  where a government opens a forum to expression, the government may not pick and choose who may speak on the basis of ideology, opinion or perspective.  

Selection among Christmas messages to support commercial but forbid religious expression is exactly what the First Amendment forbids.  The capacity for error in unconstitutional viewpoint discrimination only underscores the importance of its avoidance. The trial court’s error with respect to the nature of the Salvation Army and the court’s need to rationalize as “satirical” the acceptability of The Book of Mormon advertisement illustrates this point.

US Amicus Brief

(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


20180220120759477_16-1140 Brief For Respondent


20180313112437769_2018.03.13 NIFLAvB MERITS Reply Brief

20180316160703572_16-1140 BS Letter

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

No Piece of Cake: State May Not Compel Creation of Cake Contrary to Conscience, California Superior Court Concludes

The Superior Court for Kern County, California has opined concerning the tension between First Amendment protections and state public accommodations laws notwithstanding the pendency of the same question before the United States Supreme Court.  Department of Fair Employment and Housing v. Miller, No. BCV-17-102855.

Bakersfield, California bakeshop Cathy’s Creations, known commercially  as “Tastries,” refused on religious grounds to custom-make a wedding cake for a same sex couple.  The state sought injunctive relief against proprietor Cathy Miller for violation of the state’s public accommodations law.

The California Superior Court for Kern County declined to grant injunctive relief against Miller, stating that while the state goal of ensuring against discrimination in the marketplace is laudable, there is no compelling justification for interfering with Miller’s conscience.

The court reviewed the history of Supreme Court consideration of clashes between conscience, as expressed in speech, and the state’s capacity to compel its citizenry to conform to the state’s interests.  Fear of state intrusion into individual matters of conscience, opinion and attitude makes it unconstitutional for the state to compel a child to salute the flag or face discipline; unconstitutional to compel a newspaper to publish rebuttals by politicians it has criticized; and unconstitutional for the state to force residents to display license plates bearing slogans offensive to conscience.

Public accommodations laws sacrifice their noble and benign purposes — that all be treated fairly in the marketplace — when those laws are used as instruments to compel speech.  It is no answer, the court found, to re-characterize the creation of a custom designed cake as conduct.  Design is expressive; marriage is expressive; a wedding cake that serves as a ceremonial focal point is expressive.  

The state may not compel Cathy’s Creations to violate the proprietor’s conscience absent a compelling interest strong enough to justify that compulsion.  The state cannot satisfy strict scrutiny:  compelling action contrary to conscience is not the least intrusive means of ensuring a marketplace free of discrimination.

The beliefs Miller espouses are reflected in major world religions.  The court stressed that its determination will not provide shelter for the “small minded bigot.”

The same sex couple’s protestation of dignitary harms is not sufficiently compelling to permit the state to compel Miller to act contrary to conscience in violation of her First Amendment rights.  The Supreme Court has observed that discomfort is an unavoidable consequence of protecting speech.

The California court declined to reach the Free Exercise Clause arguments, resting its dismissal on the Free Speech Clause.

2018 02 05 Cathy’s Creations_Sup. Ct. Kern County Cal.