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)

 

Federal Court in Maryland Upholds Law Precluding Licensed Professionals from Practicing “Conversion” Therapy on Minors

Doyle, et al.  v. Hogan, et al., No. 19-cv-00190 (D. Md.) Motion to Dismiss Granted September 20, 2019.


A Maryland statute governing the provision of mental health services precludes provision of “conversion” therapy to minors.  Violation of the statute carries the risk of professional censure. 

“Conversion” therapy is the name applied to interventions intended to reorient an individual’s sexual identity, presumably from same sex or other preferences to heterosexual interest.  “Conversion” therapy has received substantial disapprobation from professional groups, and some professionals advocate that even if there were evidence to support the efficacy of conversion therapy, it should not be offered to minors.

Plaintiff Doyle asserted in federal court that the preclusion of delivery of conversion therapy to minors unconstitutionally impaired his speech rights and his religious liberty. 

The court disagreed, finding that while the conversion therapy involved speech, the administration of therapy was in fact conduct outside the realm of constitutional concern.  

Moreover, the court observed, the therapist’s freedom to speak of or about conversion therapy remains untouched by the statute.  A mental health services provider may provide information about or express an opinion about conversion therapy without fear. 

Central to the court’s determination was the inability of minors to provide informed consent for treatment. As the state interest in the health and well being of minors is at least substantial, if not compelling, imposing limitations on professional conduct to which the minor is legally unable to consent is not unreasonable.  In that minor children are not capable of autonomously exercising informed consent and in that others may exercise consent on their behalf, the state is not wrong in protecting minors from treatment to which they could not accede as a matter of law.

The court concluded that as therapist’s speech interests are not within the statute’s purview, neither were free exercise rights abridged, as the prohibition on “conversion” therapy for minors is a law of general applicability which does not substantially interfere with any belief or practice of religion.

The statute applies only to those who are licensed practitioners within Maryland.

Doyle v. Hogan (D. MD.) September 20, 2019

Ninth Circuit Asked to Reverse Dismissal of Complaint Alleging YouTube Is a Modern Public Square Subject to First Amendment Constraints Applicable to Government Entities

Prager University  v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.  


Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.  

Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC,  an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform.  PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”  

As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints.  PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment.  As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.  

PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.  

Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube  is properly exercising its own First Amendment rights as a private corporation.  

YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.  

YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.  

YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.  

YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.

Impact as Envisioned by Industry and Advocacy Leaders.  The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.  

The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums.  Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.  

The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.

Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.  

Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed.  The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers.  The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.

The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency.  Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.

Self-Governance, If Assured, Must be Assiduously Pursued.  The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards:  it must make an effort to do so diligently. 

The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression.  That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.

The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections.  The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums. 

Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.  

Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all. 

This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue.  Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.  

Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public.  Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.  

In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.

Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state. 

Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise.  CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment.  To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.

Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor.  Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now.  User run video sharing has never been a state function.  

Marsh is inapposite:  YouTube is not governing a town.  No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the  government by the First Amendment.  

Upending Application of the Law.  Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest.  Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.  

Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly.  “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues. 

JustLawful Prognostication.  Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found.  The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.  

Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.

Prager University v. Google and YouTube Appellant Brief

Prager University v. Google and YouTube Appellee Brief

Prager University v. Google and YouTube Appellant’s Reply Brief

Prager University v. Google and YouTube EFF Amicus Brief

Prager University v. Google and YouTube Computer and Communications Industry Association Amicus Brief

Prager University v. Google and YouTube Chamber of Commerce Amicus Brief

 

Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019

 

 

 

 

 

Judicial Encroachment on Speech Rights Must Be Articulated with Particularity

Bank of Hope v. Chon, No. 18-1567 (3d Cir.) September 17, 2019.


The trial court in this embezzlement case erred in failing to articulate why speech suppression was necessary to the fair and orderly proceeding of the case.  The Court’s order forbidding defendant from contacting bank shareholders to garner support was entered without the court’s stating its reason for so doing, and failed to consider less restrictive alternatives, all in violation of defendant’s First Amendment rights.

Bank of Hope v. Chon (3rd Cir., 2019)

Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.


A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)