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Civility and Its Discontents: Town Policy Cannot Squelch Assembly and Speech, Massachusetts Supreme Judicial Court Concludes

Barron, et al. v. Kolenda, No. SJC-13284 (March 7, 2023).

Massachusetts highest court recently revisited the Commonwealth’s history without a view toward revisions but with great regard for the ideals of self-governance that gave rise to the state constitution’s guarantees of rights of assembly and speech.  To this day those goals persist, the court found, such that historically raucous and not infrequently personal public gatherings cannot be supplanted by codes of ‘civility’ which would preclude criticism of public officials. 

Massachusetts state law requires its municipalities and towns to conduct business openly, leaving it to the cities and towns to develop rules for public meetings.  The Town of Southborough enacted a policy demanding ‘civility’ in all public speech and forbidding rude criticisms of town officials.

Townsperson Louise Barron, upset with the state level determinations that the town frequently violated the open meeting policies, was open about her feelings before the select board, subsequent to which she was shouted at, called “disgusting,” and threatened with removal by a member of the board.  Exchanges of “Hitler” epithets were observed.

Barron challenged the board’s policy and action, asserting that it violated her rights of assembly and speech.  The Supreme Judicial Court has agreed, finding that both provisions of the state Declaration of Rights ensure public participation in governance free from fear of being silenced or reprisal.  

Those guarantees are steeped in traditions born in the days that the colonies of the new world sought to extricate themselves from the authority of monarchy and install among themselves rights of self governance, such as speech and assembly, which are not lightly to be disturbed absent a compelling state interest and a narrow means of supporting that interest.

Political speech such as that at town meetings is core political speech which cannot be censored — or censured — because it may precipitate discomfort or bad feelings.  As the town’s civility policy directly interfered with the exercise of assembly and petition rights, and as it was so broad and vague as to chill speech, the Supreme Judicial Court found it to be facially unconstitutional.  The policy was both content based — forbidding criticisms of officials — and viewpoint based — forbidding criticism while allowing praise, and, as such, wholly defective.

In addition to striking down the ‘civility’ policy, the Supreme Judicial Court stripped the town officials of qualified immunity, observing that the rights in question were well established and had been interfered with by threats and coercion.  

The case was remanded for further proceedings.  

Barron v. Kolenda, SJC-13284 (March 7, 2023)

 

 

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Pro-Life Cries of “Murder” Are Core Political Speech, Texas Supreme Court Holds

The Lilith Fund for Reproductive Equity v. Dickson and Right to Life East Texas, No. 21-0978 and Dickson and Right to Life East Texas v. Afiya Center and East Texas Access Fund, No. 21-1039. 

Two Texas Courts of Appeals held divergent views of whether incendiary exchanges between pro-life and pro-choice groups could be actionable in defamation.  The Supreme Court of Texas has held that these advocates’ statements are not allegations of fact, but of opinion concerning matters of law and policy, making the rhetoric core political speech, protected by both the Texas and U.S. Constitutions.  As such, they are not actionable in defamation, as permitting such claims to go forward would chill protected speech.

The court noted that the term “murder” is freely employed in several social justice arenas, such as war, capital punishment, and animal rights.  

With this question resolved, post-Dobbs‘ ‘debates’ will no doubt rage on, in Texas and likely elsewhere, with no apparent end in sight.

Lilith Fund for Reproductive Equity v. Dickson, et al.

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First Amendment Protection Not Lost in Michigan “Hate Speech” Case, Michigan Appellate Court Opines

CNN v. SEB, No. 359007 (Mich. App.)  January 12, 2023.  

Michigan’s Court of Appeals has vacated a personal protection order seen to have been supported by “hate speech.”

The parties are embattled neighbors who routinely feud over a shared driveway.  One such ruckus included a racial taunt between the parties referring to the race of a neighbor who was an observer and a stranger to the fight.  

The Michigan Court of Appeals has held that notwithstanding the distasteful remark, no threat was present which  would exempt the speaker from First Amendment protections, and as such, it would not support the issuance of a personal protective order.  

CNN V SEB Michigan Court of Appeals No. 359007 Opinion January 11, 2023

 

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Eleventh Circuit Court of Appeals to (Trump-Requested) Special Master: “You’re Fired!”

Trump v. United States of America, No. 22-13005 (11th Cir.) Opinion and Order entered on December 1, 2022, reversing and vacating order of United States District Court granting plaintiff Trump equitable relief in a September 5, 2022 order authorizing the appointment of a Special Master to oversee review of documents and things seized from the former President’s residence in August, 2022.

The United States Court of Appeals for the Eleventh Circuit has concluded that the trial court hearing former President Trump’s request for judicial oversight of the review of materials seized from his residence was in error in granting the relief sought.  As courts of limited jurisdiction, federal courts cannot exercise equitable jurisdiction absent “callous disregard” of the constitutional rights of an individual to whom a warrant is directed. Such circumstances are not present in this case notwithstanding that a former President is involved.  Were the courts to permit challenges to warrants duly authorized and executed in non-extreme circumstances, challenges to searches and seizures would be routinely challenged, impeding, if not crippling, the work of federal investigators.  An urgent need for specific items, denial of which would precipitate grave and irreparable harm, might be grounds for relief, but the general assertions presented in this case do not demonstrate such a need.  Recitals of statutory possessory interests are not availing where all seizures involve items of possessory interest. 

Trump v. USA, No. 22-13005 (11th Cir.) Order and Opinion December 1, 2022

 

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Social Media Providers Resist as Unconstitutional New York’s New Law Requiring Monitoring of Online Activity for “Hate Speech”

Volokh, et al. v. LetitiaJames, Attorney General of the State of New York, No. 22-cv-10195 (S.D.N.Y.)

A legal scholar and blogger and two related internet platforms seek to enjoin enforcement of New York’s new law, effective tomorrow, December 3, 2022, that will require them to monitor content appearing on their site for “hate speech.” The plaintiffs must develop and publish a statement about “hate speech” and must not only monitor for “hate speech,” but also provide mechanisms for submission of complaints and must respond to all complaints.

Failure to comply with the state’s plan for eradication of certain disfavored speech will result in per violation per day penalties. In addition to imposing penalties for perceived non-compliance or violations of the law, the Attorney General may issue subpoenas and investigate the social media entities themselves. Plaintiffs argue that the compliance and non-compliance features of the law are unconstitutional burdens, and that the law in its entirely chills constitutionally protected speech.

Plaintiffs submit that the law unconstitutionally burdens protected speech on the basis of viewpoint and unconstitutionally compels speech. Plaintiffs object to the law as overly broad and vague, offending not only the First but also the Fourteenth Amendment of the U.S. Constitution, as established in controlling Supreme Court precedent. Moreover, plaintiffs argue that New York’s new “online hate speech” law is preempted by Section 230 of the Communications Decency Act. New York cannot compel the social media providers to act as publishers where the federal law precludes doing so.

The law appears to have been hastily cobbled together after a mass murder last summer said to have been racially related. While similar measures have languished in the New York legislature, the undeniably horrible losses of life provided a political moment through which New York might seek to impose speech restrictions online. No legislative findings justifying the law’s enactment were made, and many significant terms are undefined. Similarly problematic is that the law requires no intent in order for the state to impose penalties on the online platforms. The perception of one reading or seeing the online content controls whether “hate speech” exists.

At this writing, the state has not responded to the plaintiffs’ requests for injunctive and declaratory relief. The matter has been referred to a special master. No scheduling order or information concerning a hearing, if any, concerning the request for injunctive relief has been found.

Volokh v. James, No. 22-cv-10195 (S.D.N.Y.)

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Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review

Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).

In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

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Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms

Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.

Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

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A Labor Day of Law: Federal Court Agrees to Appoint Special Master in Challenge to Search at Mar-a-Lago, Enjoins Investigators from Use of Materials Under Review

Donald J. Trump v. United States, No. 22-81294 (MAC).  Order entered September 5, 2022.

Citing the need “to ensure at least the appearance of fairness and integrity,” the federal judge assigned to hear former President Trump’s request for appointment of a Special Master to review materials seized pursuant to an unannounced search of his Florida residence, Mar-a-Lago has granted that request.  

Having concluded that the circumstances warrant the exercise of the court’s equitable jurisdiction and supervisory powers, the court examined the equitable considerations supporting or negating the propriety of the appointment of a Special Master.

The court rejected the government’s argument that the former president could not seek relief because in the government’s view the former president does not own the materials seized.  Not only is this not wholly true, the court observed, but property ownership is no precondition to assertion of Fourth Amendment interests.

The idea that the former president cannot challenge the search fails, in the court’s view, because the issue before the court is not standing on the merits of any claim, but standing to seek equitable relief in the form of a special master, which the court has found to be present.  

The argument that there exists concern only for materials subject to the attorney client privilege but not the executive privilege also fails, the court found, as the government’s assertion that the executive privilege is lost the moment a president vacates the office lacks support in the law.  

The court rejected the notion that the work of a government privilege review team obviates the need for a special master.  While adequate in some cases, the court observed, this is not an ordinary case, and to the extent that there have been instances of some materials not being cabined by the government privilege review team, even if inadvertent, highlights the need for independent review. 

The court has elicited suggestions for appointees to act as Special Master to be filed by the parties by September 9, 2022. 

The government has been ordered not to make use of any of the seized materials under review by the Special Master in any criminal investigation at least during the conduct of the Special Master’s review.  The government may continue its classification and national security review.  

2022 09 05 Trump v US 22-81294 Order

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More Translucent than Transparent, Unsealed Government Inventory and Investigative Status Report Indicate Government’s Quest for Evidence Continues

Donald J. Trump v. United States, No. 22-81294 (AMC).  Minute order entered September 2, 2022.

The federal district court in Florida has heard argument concerning the former president’s request for appointment of a Special Master and for other relief, and has directed that the government’s investigative status report and inventory of items seized at the Mar-a-Lago residence be unsealed, with an order to follow.

The federal investigative team has advised the court that it is reviewing materials seized at Mar-a-Lago, has separated them into items with classified markings and those without, has taken care to conform its work to that of a privilege review team.

The federal investigative team has advised the court that the review of the materials seized is in pursuit of an “ongoing criminal investigation.”  The status report explains that materials are being reviewed for relevance to unstated charges:

The investigative team has reviewed the seized materials in furtherance of its ongoing investigation, evaluating the relevance and character of each item seized, and making preliminary determinations about investigative avenues suggested or warranted by the character and nature of the seized items. The seized materials will continue to be used to further the government’s investigation, and the investigative team will continue to use and evaluate the seized materials as it takes further investigative steps, such as through additional witness interviews and grand jury practice. Additionally, all evidence pertaining to the seized items — including, but not limited to, the nature and manner in which they were stored, as well as any evidence with respect to particular documents of interest — will inform the government’s investigation. Thus, it is important to note, “review” of the seized material is not a single investigative step but an ongoing process in this active criminal investigation.

Notice by Investigative Team of Status of Review, page 2.

The status report is clear that the review of seized materials is not in support of conclusions reached with respect to any violations of criminal or civil law, but in support of investigation of whether any violations of criminal or civil law may have occurred.  The review team is clear that such materials may be used in grand jury proceedings.

Should materials become part of grand jury proceedings, disclosure of the nature of any such materials would become highly restricted in accordance with Federal Rules of Criminal Procedure 6(e).

The status report notes that a federal agency is also reviewing the materials seized to determine the threat to national security should such documents be released.

The government investigators have assured the court that due care has been and will be exercised to consider whether any materials are subject to the attorney client privilege.

The newly unsealed inventory provides information about the place from which materials were seized, the number of items in each container, and the nature of the items, such as “magazines” or “newspapers”, clothing, gift items, books, photographs, or items with classification markings.

2022 08 30 Notice by Investigative Team of Status of Review unsealed 2022 09 02

2022 08 30 Detailed Property Inventory Pursuant to Court’s Preliminary Order unsealed 2022 09 02

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Counsel for Former President Urge Court to Reject Any Notion that Ownership is a Prerequisite to Challenge to Search and Seizure at Mar-a-Lago Residence

Donald J. Trump v. United States, No. 22-81294 (AMC).  Movant’s Reply to United States’ Response to Motion for Judicial Oversight and Additional Relief, filed August 31, 2022.  Hearing September 1, 2022 at U.S. District Court in Florida at 1 p.m. 

Counsel for former president Donald J. Trump argue that no precedent exists for the government’s argument that in the absence of a property interest –that interest to be determined by the government — an individual seeking to challenge a search and seizure of his residence has no recourse because, in the absence of a property interest — that interest to be determined by the government — the individual who lacks an ownership interest in materials seized lacks standing to seek review.  In the absence of standing, the court has no power to hear the case.  

The government’s argument, counsel have submitted, has no support in extant Fourth Amendment jurisprudence, which recognizes that it is governmental intrusion that is central to the Fourth Amendment’s restrictions on governmental power.  What is necessary is “a legitimate expectation of privacy in the premises searched or the items seized.” Reply Memorandum at 5, quoting United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984).   The government’s position is not only in error as a matter of constitutional law, but the government fails to recognize that the question before the court is the propriety of appointment of a Special Master, which is directed to the power of the court to grant equitable relief. 

Counsel for the former president observe that any authority to conduct privilege review presented within the application for the warrant issued prior to the search and seizure at Mar-a-Lago was narrowly constrained a a certain portion of the property, yet as the government insists that its review is complete, it would appear that the government exceeded those bounds. 

The government’s argument that the court ought not insert itself into what has been styled a ‘national security’ review by a government entity cannot succeed.  Power to adjudicate matters relating to governmental exercise of powers is at the core of the need for a federal judiciary.  

Counsel note that the government has not conducted itself with the high standards which it purports to uphold, as evidence by the dramatic — and apparently staged — submission to the court of a photograph showing documents bearing “classified” cover sheets.

The former president is in need of an inventory of items seized in order to assert his interests in materials gathered through use of criminal process in a matter that ought to have been a routine discussion of items sought for a presidential library under the Presidential Records Act.  

Movant’s Reply to United States, No. 22-81294 August 31, 2022