Are Funny Things Happening on the Way to Publicly Created Non-Public Forums? Judicial Reviews of Transit Advertising Policies Invite Further Consideration

Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority, No. 18-1839 (E.D. Pa.), Final Judgment and Decree entered December 20th, 2018.  

Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 17-7171 (D.C. Cir.). Order entered December 21, 2018 denying petition for rehearing en banc.   

The United States District Court for the Eastern District of Pennsylvania recently entered a final judgment ordering the Southeastern Pennsylvania Transportation Authority (SEPTA) to revise its advertising guidelines to eliminate the “unfettered discretion” theretofore vested in SEPTA to make advertising decisions that the court found to be unconstitutionally overbroad in its November 28, 2018 Memorandum Opinion.           

Nonetheless the federal district court found SEPTA had acted reasonably in its application of its standards to the Center for investigative Reporting.  The court found SEPTA did not err in rejecting the advertisement proposed by the Center for Investigative Reporting, which sought to publicize its review of bias in housing lending

The court took it upon itself to revise SEPTA’s advertising policies to forbid political advertisements and all advertisements offering an “opinion, position, or viewpoint about “economic, political, religious, historical or social issues.” Upon rejecting an advertisement, SEPTA has been ordered to provide, on request, some form of conference with the entity proposing the advertisement deemed unsuitable.

The ability of government entities to regulate speech on transit vehicles simmers not only in the Pennsylvania district court case but also in the United States Court of Appeals for the District of Columbia Circuit, which recently rejected, with dissent, a petition for rehearing en banc of a July 31, 2018 per curiam judgment upholding rejection of a Catholic Christmas message.  

The elephant(s) in the rooms of forum analyses that undergird these decisions invite further review.  The government exclusively holds the power to regulate speech by defining places as non-public forums.  The power to regulate speech by defining the sort of forum in issue merits questioning. While this power may not be wholly unchecked, some may perceive it to be “pretty darn close.”

Less foundational but worrisome is the contemporary notion that the public must not be exposed to messages which may, in the views of government authorities, induce distress. Political or religious messages, the authorities have concluded, are exceptionally apt to cause riders to become disquieted.

As the decisions here demonstrate, speech regulation inhibiting sources of public discomfort has been endorsed by the courts.  At the same time, there exists and evolving advocacy for a ‘right’ to not meet with disfavored images: this is at the heart of litigation before the United States Supreme Court seeking to dismantle religious historic public monuments. The American Legion v. American Humanist Association, No. 17-1717, consolidated with Maryland-National Capital Parks and Planning Commission v. American Humanist Association, No. 18-18.  Oral argument scheduled for February 27, 2019.

The demand that colleges and universities shied students from exposure to unsettling ideas has been reported widely.  Lukianoff and Haidt, The Coddling of the American Mind (Penguin 2018)  When observed through the lens of current judicial consideration of the acceptability of speech restrictions, the apparent acceptability of government intrusion in determining which messages the public may see, and which they must be spared, may itself be disquieting.

2018 12 20 Center Investigative Reporting v SEPTA

2018 11 28 Ctr. for Investigative Reporting v. Se. Pa. Transp. Auth. (E.D. Pa., 2018)

2018 12 21 ADW v. WMATA denial rehearing en banc

2018 07 31 ADW v. WMATA Opinion

SCOTUSblog Case File American Legion v. American Humanist Association

SCOTUSblog Case Files Maryland-National Capital Parks and Planning v. American Humanist Association





Docket Peek-a-Boo Round Two: Reporters’ Committee for Freedom of the Press and Federal Government Submit Supplemental Briefs Addressing Disclosure of Reported Assange Indictment

In Re Application of  Reporters’ Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange,  No. 2:18-cv-00037 (LMB/JFA).

 Julian Assange, Wikileaks founder and ostensible figure of interest in investigations into interference with the 2016 presidential election, was disclosed, by reported inadvertence, as the subject of criminal processes in a November court filing.  The Reporters’ Committee for Freedom of the Press has moved the federal court in the Eastern District of Virginia to unseal the criminal records

At oral argument on November 27, 2018, the government resisted unsealing vociferously, arguing that there is no right to unsealing prior to arrest.  The Reporters’ Committee, by contrast, maintains that the ‘right’ is one of access, either under the constitution or common law, making it the government’s responsibility to demonstrate with specificity any reason requiring sealing court records.  

In recent post-argument supplemental memorandum, the Reporters’ Committee offers that the government’s position that there is a general “pre-arrest” exception to First Amendment and common law rights of access to the courts has no foundation in law or fact.  The government must demonstrate why any claimed exception to open proceedings is justified on an individualized basis. This has not and cannot be done in this case, where Assange has already been identified, where he is doubtlessly aware of the imminence of proceedings, and where, having sought sanctuary in the Ecuadorian embassy in London for years, his location is well known to United States’ authorities, and his opportunities for flight less than optimal.  

It is the type of record, not custodial status, that controls decisions to seal or to unseal, the Reporters’ Committee asserts.  The constitutional and common law presumption of access cannot be overcome by general assertions, particularly where no case exists supporting the ideas that rights of access either do not exist or ought not apply prior to custody.  The government’s July, 2018 disclosures of indictments against Russian intelligence officers, all prior to arrest, flatly contradicts the government’s current position.

Neither can the government’s desire to preserve the integrity of ongoing investigations be supported by generalities, the Reporters’ Committee submits:  the government must present specific information demonstrating that a particular investigation would be harmed by disclosures. Where interest in Assange and Wikileaks has been widely publicly known for some time, there can be no reason to withhold public records.  

Of central importance are the critical  is the First Amendment principles in issue in any government determination to prosecute Assange because of Wikileaks’ publications. A prosecution for publication will affect both the press and the public, making public proceedings all the more significant.

The government in response reiterates that no case can be found in which disclosures (or denials) of a charging instrument was ordered pre-arrest.  It is immaterial whether the document in question is a docket, a charging instrument, a warrant, or an indictment, for it cannot be argued that the rules permitting sealing by a magistrate judge,  promulgated by the United States Supreme Court, can be disregarded absent a determination of fundamental constitutional or Enabling Act error.

That some documents are unsealed before arrest does not mean all should be, the government asserts, particularly where deference is due the court which made the determination to withhold.  The determination to seal should be respected absent a showing of prejudice or harm to the public interest. There are cases that uphold the adequacy of rights to challenge sealing orders occurring after public disclosure of indictments or the execution of (definitionally) ex parte search warrants.  

Neither does the press’ surmise about who the subject of any court filing may be compel the government to confirm or deny the validity of the press’ guess. There is no government compulsion to disclose whether an individual is not charged or charged under seal.

It is not known how long the court will take to rule.   

Assange – Reporters’ Committee Supplemental Memo of Points and Authorities

Assange – Government’s Response to Reporters’ Committee Supplemental Memorandum


The Right to Petition Does Not Prohibit State Requirement that Unpaid Volunteer Activist Register as a Lobbyist, According to Eighth Circuit

Calzone v. Summers, No 17-2654 (8th Cir.) November 28, 2018.

Petitioner Calzone sought to meet with and to persuade legislators of the need to put “Missouri First,” which was the self-styled name of his organization. While noting that some of Calzone’s arguments may not have been properly raised or preserved, the Eighth Circuit has concluded that Calzone, although operating on his own as an unpaid volunteer, must comply with the state’s lobbyist registration requirements. A singular dissent expresses concerns that the majority’s ruling seems to read petitionary rights out of existence.

Calzone v. Summers (8th Cir., 2018)

Retroactively Reasonable Measures Not Dispositive of Violations of Prisoner’s Right to Unopened Legal Mail

Hairston v. Franklin County Sheriff’s Office, No. 2:17-cv-581 (S.D. Ohio) November 28, 2018.

Prison officials opened mail from the courts addressed to prisoner in the mistaken belief that doing so was permissible. The official in question was tutored about the extension of the prohibition on opening prisoner’s “legal mail” to court documents, but in at least one instance repeated the behavior.

Although the county insists that it had not erroneously instructed its employees and that it took action to correct any misperceptions, its post-offense measures will not defeat the prisoner’s claim that a policy or practice operated to breach his privacy rights in receiving legal mail. Moreover, once the county employee was instructed in the scope of legal mail protections, qualified immunity could not be asserted.

Hairston v. Franklin Cnty. Sheriff’s Office Ctr. Main Jail 1 (S.D. Ohio, 2018)

Offender’s Privacy and Worship Liberties Diminished During Post-Prison Supervision, Federal Court in Oregon Concludes

Ferry v. Doohan, No. 3:18-cv-01891-HZ (D. Or.) November 28, 2018.

Petitioner cannot succeed in either his claim objecting to release to the state of mental health treatment records, as his rights of privacy are diminished in the post-prison supervision context, nor can he succeed in his demand to attend a particular church at a particular time, as the state’s failure to agree to that term does not materially impair any rights of worship he enjoys.

Ferry v. Doohan (D. Or., 2018)

Construction Commentary Deconstructed: Online Review of Remodeling of Public Interest within Anti-Slapp Law, California Court of Appeals Holds

Noli Construction v. McClendon, No. D072531 (4th Cal. App.) November 29, 2018. Unpublished.

Online accounts of consumer dissatisfaction may be matters of public interest. Even though the housing project here was individualized, consumer information about such matters enhances public knowledge and therefore is within the protections of the anti-SLAPP law. Moreover, it does not matter if the consumer’s statements were fact or opinion: the issue is whether the statements are demonstrably false. 

Noli Constr. v. McClendon (Cal. App., 2018)

Not Entirely Open and Shut: Reporters Committee for Freedom of the Press Seeks an Order Unsealing Documents Relating to Wikileaks Founder Julian Assange

In re the Application of Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-00037-LMB-JFA (E.D. Va._  Hearing on Motion on November 27, 2018.

Just days ago the media reported that Wikileaks founder Julian Assange was the subject of a federal indictment stemming from Special Counsel Robert Mueller’s investigation into Russian interference in the U.S. 2016 presidential election.

The grand jury proceedings leading to the charge, as well as the charge itself, were intended to remain under seal with the court.   The Department of Justice offered that the disclosure was inadvertent, a failure in proofreading.

Nothing piques the curiosity so much as a government gaffe of this magnitude.  A leak about a leaker, inadvertent or, one might speculate, perhaps not, cannot help but excite public interest, particularly where, as here, years have passed and the special counsel proceedings have borne little prosecutorial fruit and even less public disclosure. Add to this the somewhat exotic nature of Assange’s years-long exile in the sanctuary of the Ecuadorian Embassy in London, and the mix is as potent as those fond of intrigue might hope.  

As guardian of and advocate for the right of access to the courts, both under the Federal Constitution and at common law, the Reporters Committee for Freedom of the Press has moved the U.S. District Court for the Eastern District of Virginia to unseal all the records purportedly relating to Assange.  

In its opposing memorandum and at argument on the Reporters Committee motion today, the United States vigorously objected to the request for unsealing, particularly where the government states it has no obligation to confirm or deny the existence of a charge at all at this point, notwithstanding the erroneous disclosure.  

The government has argued that where there has not yet been an arrest, even if there has been an inadvertent disclosure of a name, the court has no obligation to, and should not, open its records.  To announce publicly the pendency of proceedings would serve no policy of public access, the government has suggested. To the contrary, disclosure prior to arrest would confer an unwarranted benefit on a defendant, enabling him or her to order personal affairs and repair to a location well beyond the powers of the court.

The court has taken the matter under advisement.

The parties’ memoranda of law:

2018 11 16 Reporters Committee Memorandum Supporting Unsealing

2018 11 26 Government’s Opposition to Application to Unseal




But, Officer! Was It Something I Said? Supreme Court to Consider Whether Claim of Retaliatory Arrest for Protected Speech Must Demonstrate the Absence of Probable Cause

Nieves, et al. v. Bartlett, No. 17-1174 (S. Ct.). Oral argument scheduled for November 26, 2018.

Amicable encounters between the public and the police are the exception rather than the rule, if the explosive, and sometimes deadly, media reports reflect the current cultural reality. Individuals or groups arrested not infrequently believe that the law enforcement intervened not because of criminal activity but because of protected activity. Suits such as that in Nieves ensue when an arrestee asserts that arrest resulted from speech or expressive activity disfavored by the arresting officer.

Police officers enjoy qualified immunity from suit for conduct in connection with their official duties absent violation of known constitutional rights. Thus claims against the police are, rightly or wrongly, not easily won, but recognition of a right to be free from retaliatory arrest, without the necessity of proving any arrest was without probable cause, would provide one more arrow in the quiver of those seeking redress for violations of constitutional rights under 42 U.S.C. Section 1983.

The Ninth Circuit, where this case originated, is alone among federal courts in holding that a retaliatory arrest claimant need not prove that there was no probable cause for arrest. Given that in other circuits the presence of probable cause will foreclose actions against officers for retaliatory arrest, Nieves presents an opportunity for the Court to weigh in on a position generating no small amount of controversy.

The concerns of all involved are well founded. Police do not want to face time and career consuming litigation. The public does not want to be afraid to speak in the presence of the police or to dispute the police without recourse.

Much more is in issue than a fracas and an arrest at a lively sporting and drinking event in Alaska. Outstanding amicus submissions have grounded the case for and against permitting actions without proof of probable cause in both history and practice.

Principal Parties Merits’ Briefs

Brief of Petitioners Nieves v. Bartlett 17-1174

Brief of Respondent Nieves v. Bartlett 17-1174

Reply Brief of Petitioners Nieves v. Bartlett 17-1174

Amicus Submissions

Amicus Constitutional Accountability Center Nieves v. Bartlett 17-1174

Amicus District of Columbia and Several States Nieves v. Bartlett 17-1174

Amicus First Amendment Foundation Nieves v. Bartlett 17-1174

Amicus Institute for Free Speech Nieves v. Bartlett 17-1174

Amicus Institute for Justice Nieves v. Bartlett 17-1174

Amicus National Police Accountability Project Nieves v. Bartlett 17-1174

Amicus National Press Photographers and Media Nieves v. Bartlett 17-1174

Amicus Rutherford Institute Nieves v. Bartlett 17-1174

Amicus Three Individual Activities Nieves v. Bartlett 17-1174

Amicus United States Nieves v. Bartlett 17-1174



Not All the Same to Meme: Trademark Holder Succeeds in Reversing Summary Judgment Where Unauthorized Use of Protected Catchphrase in Greeting Cards Could Cause Customer Confusion

Gordon v. Drape Creative and Papyrus Recycled Greetings, No. 16-56715 (9th Cir.) November 20, 2018.

Analysis of trademark infringement claims requires balancing of two competing principles, the Ninth Circuit observes. Trademark infringement cannot be so vigorously asserted as to suppress artistic expression. At the same time, trademark protections cannot be so lax as to cause the public to become confused as to the source of a product offered for sale.

Plaintiff Gordon had some success in video and comedy and in subsequent licensing of the catchphrase “Honey Badger Don’t Care.” With knowledge of plaintiff’s interest, defendants adopted the phrase for their own greeting card products. Notwithstanding that the parties had made use of the catchphrase in different media, the panel concluded that it could not be said that the similarity of design and use would not cause customer confusion as to the origin of a product employing the phrase. In such circumstances, summary judgment for defendants must be reversed.

Gordon v. Drape Creative, Inc. (9th Cir., 2018)

Michigan Judge Finds Federal Criminal Legislation Prohibiting Female Genital Mutilation Unconstitutional

United States v. Nagarwala, No. 17-CR-20274 (E.D. Mich.) November 20, 2018.

The federal court has dismissed criminal charges against physicians said to be practicing female genital manipulation. Defendants had been indicted for violation of a federal statute intended to protect adolescent girls from these practices. The district court found error in the federal use of authority in what it perceived to be a matter for state law. The “necessary and proper” clause of the United States Constitution is not an independent grant of power, the court observed. Any power Congress might have respecting effectuating international treaties ensuring equal civil and political rights does not reach the genital mutilation considered by the federal statute, nor does the practice have any relationship to interstate activity, such that criminal sanctions might be justified under the Commerce Clause.

United States v. Nagarwala (E.D. Mich., 2018)