A Grand Old (Private) Flag at Boston City Hall: Supreme Court Clarifies Establishment and Speech Clause Interests


Shurtleff v. City of Boston, No. 20-1800, 595 U.S.      (May 2, 2022)


Private Flag Permitting at Boston’s City Hall Plaza.  Three flagpoles are situated on the public plaza surrounding Boston City Hall.  These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts.  At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.

Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.  

A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution.  Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained. 

Constitutional Purposes and Constraints.  Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States.   The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors.  The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”   

Clauses on a Collision Course, or So It Sometimes Seems.  Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error.  However, the Establishment Clause applies only to government action.  Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted. 

Justice Breyer’s Judicial Opening Farewell.  Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed.  Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.  

Government speech and government created forums must be distinguished, he wrote.  A government created forum must be open to all without restriction based on viewpoint.  Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.  

This is all very clear until it is not.  In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment.  On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination. 

Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech. 

Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.”  Slip. Op. at 6.  Introducing its approach, the Court offered:

Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Slip Op. at 2. 

In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion.  The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case. 

Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future. 

A brief reiteration:  Justice Kavanaugh concurs.  This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity.  All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities. 

The end may be all right, but the means, not so much.  Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion.   Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion.  Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity. 

Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers.  The critical question is who the speaker is.  The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis.  No such test can be found.  The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.  

Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship.   Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.  

…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application. 

Alito concurrence in judgment, Slip. Op. 4

While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter.  An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional. 

A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation,  who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own. 

The issue is not simply one of fashioning an analysis, Justice Alito stresses.  Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship. 

Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.

Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech.  There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech. 

The Unbearable Persistence of Lemon.  Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.

Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:

“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.   

Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)

20-1800_Shurtleff v. Boston, 595 U.S. (May 2, 2022)

The Times they are not a-changin’: awkward closing of Palin libel suit fails to provide path forward for standards governing publication of false statements about public figures

 

Palin v. The New York Times, No. 17-04853. 

Judgment for defendant entered February 15, 2022. 

Teleconference scheduled for February 23 at 4:00 p.m.  Public access at 888-363-4735 Access Code 1086415


In issue:  In 2017, Congressman Steve Scalise was shot while practicing with colleagues for an annual Congressional baseball game, causing news media to  echo concerns about gun violence that arose in 2011 when Arizona Senator Gabrielle Giffords sustained a gunshot wound to the head in a supermarket parking lot.

The New York Times opined that a perceived escalation of gun violence was traceable, in the Giffords case, of  incitement induced by a campaign document produced by Governor Palin which featured drawings of gun sight cross hairs on a map to indicate campaign targets.

The New York Times corrected itself but this did not, in Palin’s view, suffice to relieve the publication of liability for defamation.

While jurors were deliberating whether The New York Times ought to respond in damages to former Alaska Governor Sarah Palin for its publication of  an admittedly inaccurate, promptly removed,  statement in an opinion piece, the court granted judgment in favor of The New York Times.

Although jurors had been cautioned against accessing media while deliberating, jurors reported that they learned of the entry of judgment through telephone notifications received prior to the jurors’ verdict for the New York Times.

The court was of the mind that entry of judgment for The New York Times could provide efficiencies after appeal:  If the jurors found in favor of plaintiff Palin, and the Second Circuit reversed the trial court, judgment for Palin in accordance with the juror’s findings could be entered, obviating the need for another trial.

It seemed like a good idea at the time.  

Civil procedure thumbnail.  Judges may dismiss cases before trial, after trial, and after jury determinations in the court’s discretion if the court is of the view that a litigant cannot and, if after trial, has not, as a matter of law, established a case.  Rule 50, Fed.R.Civ.P.  Entry of judgment as a matter of law in accordance with Rule 50  modernizes the common law judgment non obstante verdicto (judgment notwithstanding the verdict), permitting courts the flexibility of entering judgment at almost any time.

The court has augmented the record to include statements to the jurors about avoiding media as well as cases relied on by the parties concerning the motion for judgment by the court, and has invited the parties to discuss any issues presented by the court’s and the jurors’ conclusions by telephone conference.

By entering judgment for the New York Times, the court indicated that the former governor had not produced evidence meeting the heightened standard for defamation of public figures announced more than a half-century ago in New York Times v. Sullivan, 376 U.S. 254 (1964).

Law thumbnail. To prevail in a  defamation claim, a public figure must prove that the publication of a defamatory statement was done with “actual malice”, defined as knowledge of its falsity or reckless disregard of whether the statement was false or not.  “Actual malice” does not mean subjective ill will but refers to publishing, as stated, with knowledge that a statement is false or with reckless disregard — more than negligence — with respect to truth or falsity.

This rarely met standard has provided insulation for publishers which some, including two justices of the U.S. Supreme Court, now sense merits revisiting.  Berisha v. Lawson, No. 20-1063, 594 U.S.  ____ (2021) (Justices Thomas and Gorsuch, writing separately, dissent from denial of certiorari).

At this writing there is no opinion concerning the final judgment on the docket for the U.S. District Court for the Southern District of New York, and it is not known whether the court will issue one.

Recent case materials:

Order February 16, 2022

Order to Supplement Record February 16, 2022

Final Judgment February 15, 2022

Earlier case materials:

Palin v. New York Times (2nd Cir.) August 6, 2019

Palin v. New York Times, Opinion S.D.N.Y. August 29, 2017

Supreme Court Opinions:

Berisha v. Lawson, No. 20-1063, 594 U.S.___ (2021)

New York Times Company v Sullivan 376 US 254 11 L Ed 2d 686 84 S Ct 710 95 ALR2d 1412 1964

The New York Times, March 10, 1964

 

 

 

 

Absent Administrative Notice and Comment, Amici Affected by the OSHA Vaccine Mandate Present Submissions to the U.S. Supreme Court Explaining Their Views


National Federation of Independent Businesses v. Department of Labor, No. 21A244,  consolidated with Ohio v. U.S. Department of Labor, No. 21A247. Oral Argument on  Applications for Emergency Stay of OSHA Vaccine Mandate set for Friday, January 7, 2022.

Biden v. Missouri, No. 21A240, consolidated with Becerra v. Louisiana, No. 21A241.  Oral Argument on Challenges to Stays of CMS Vaccine Mandate set for Friday, January 7, 2022. 


The principal parties will be heard on Friday, January 7, 2022 concerning whether the U.S. Supreme Court ought to intervene to stop the implementation of the U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating vaccination against the Covid-19 virus or testing/masking for all employers with more than one hundred employees.  Immediately thereafter, the Court will hear arguments concerning whether to dissolve stays imposed to halt the effect of a Centers for Medicare and Medicaid Services (CMS) Rule requiring vaccination of health care workers in federally supported settings.

The parties are also seeking certiorari before judgment in their respective cases.  Whether the Court will reach that issue at the same time that it addresses preliminary relief is not known.

What is known is that just as vaccination has engendered controversy nationally, interest groups, advocates, elected leaders, former officials, and professional associations have seized the occasion to submit their views to the U.S. Supreme Court in amicus briefs.

In broad brush, proponents of a stay of the OSHA vaccine mandate argue that OSHA does not have the authority to implement such a measure.  In the absence of explicit Congressional delegation of authority, OSHA cannot act outside known statutory parameters without clearly articulated guidance.  In addition, proponents of a stay assert that OSHA has no public health authority, as that is a police power reserved to the states.  OSHA has no authority to act on an emergency basiss where no emergency exists.  To like effect, OSHA erred in failing to permit notice and comment concerning its proposed vaccine mandate, as no actual emergency presenting a grave danger that requires intervention and excuses notice and comment exist.  

Proponents of a stay of the OSHA vaccine mandate argue that vaccination is ineffective concerning transmission of the Covid-19 virus and that the ‘vaccination’ itself is actually a gene-modifying medical treatment. 

In addition to the sweep of the OSHA measure, the federal intrusion on constitutionally protected individual interests in both bodily integrity and consent to medical treatment are implicated, requiring a hard look in advance of implementation.  

Finally, and not insignificantly, one amicus suggests that the imposition of vaccination or testing and masking measures within workplaces will precipitate medical segregation, an adverse social consequence. 

Those who applaud the arrival of the OSHA mandate assert that the Covid-19 pandemic is the most deadly viral infection event in U.S. history and that the workplace is a petri dish for contamination, making vaccination or masking and testing a valid first line of defense.  Some amici fear that if the mandate is not implemented, the consequences will spill over to their businesses to dismal effect. 

Presented below are thumbnails of the various amicus submissions concerning the OSHA vaccine mandate.  While the CMS Rule requiring health care provider vaccination is of great importance, limitations of time and space prevent development of those arguments here. 

 


 

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

These advocates for traditional values oppose the encroachment of the federal judgment and the administrative state.  There are grave dangers inherent in governmental invocation of emergency measures, particularly where, as here, the vaccine mandate does not address an emergency but presents a “work around” to avoid the necessity of Congressional action and/or administrative notice and comment.  OSHA’s emergency powers are to be used sparingly, and even as such, only one survived judicial challenge.  


 

America’s Frontline Doctors as Amicus Curiae in Support of Applicant

America’s Frontline Doctors as Amicus Curiae in Support of Applicants

Member physicians do not believe the vaccines prevent the spread of Covid-19, and, as result, there exists no basis for segregation of the vaccinated and the unvaccinated.  

The current vaccines are mischaracterized as such.  They are gene-modifying treatments that may reduce symptoms. 

The proper legal analysis should be derived from the strict scrutiny considerations of personal rights to refuse medical treatment.  The OSHA mandate would not survive such analysis, as it is not narrowly tailored to serve a compelling state interest.  They do not inhibit contagion, and thus do not serve the arguably compelling state interest in public health.  And the vaccine mandate is not narrowly tailored as the treatments do not consider risk factors or natural immunity.  There is evidence that natural immunity confers a long term benefit and there are also newly developed treatments to assist in addressing the virus.  


 

American Medical Association, et al.as Amici in Opposition to Applications for Stay 

American Medical Association, et al. as Amici in Opposition to Applications for Stay

These established medical professional associations perceive a severe risk to public health through higher workplace transmissions.  Vaccination can reduce the risk of contraction of the virus, result in less severe cases of illness, and less contagion. 

Testing offers no greater protection than nothing at all.  Masking may be helpful, but is not as good as vaccination. 


 

American Public Health Association, et al. as Amici in Support of Respondents

American Public Health Association, et al. as Amici in Support of Respondents

Public health associations observe that airborne viruses make the workplace particularly hazardous.  Covid-19 mortality is higher for in-person workers.  

Vaccination provides some insulation against transmission.  Moreover, vaccination diminishes transmission and therefore, mutation. 


 

Center for Medical Freedom, et al. as Amici in Support of Applicants

Center for Medical Freedom, et al. as Amici in Support of Applicants

Conservative groups opine that the vaccine mandate is”exactly what the Framers most feared when they established the federal government:  a raw exercise of arbitrary power.”  (Amicus Brief, p. 3).  

OSHA is a child of the commerce clause. There is no authority to regulate anything i the absence of commerce, and the impact of inaction on commerce is not a valid premise for commerce clause legislation.  

Reliance on Jacobson is misplaced, a statue measure was in issue there and as more than a century of subsequent law has been amassed, placing Jacobson’s vitality in question, and this is particularly so where Jacobson was conceived during the ascendancy of the eugenics movement. 

Justice Gorsuch has already rejected Jacobson as a premise for emergency extra-constitutional federal health measures.  

There is no federal police power that would support a vaccine mandate.  

Moreover, the premics of the mandate is flawed, as it is false to say the unvaccinated cause the pandemic.

Death attributable to the Covid-19 vaccines, which are ene therapy, suggest the vaccines themselves present substantial hazards.  

Separation of powers principles caution against implementation of the sort the OSHA vaccine mandate contemplates. 


 

Constitutional Accountability Center as Amicus Curiae in Opposition to Applications for Stay or Injunction Pending Review

Constitutional Accountability Center as Amicus Curaie in Opposition to Applications for Stay 

This progressive think tank and advocacy center submits that delegation with intelligible, principled guidance is appropriate, and that here that intelligible and principled guidance is found in the directive that OSHA may issue emergency orders where necessary to address a grave danger.  

Just because a measure is broad, this does not mean it is unintelligible.  Where such guidance has been provided, there should be no second-guessing agency action. 


 

Defending the Republic in Support of Emergency Applications for Stay or Injunction Pending Certiorari

Defending the Republic as Amicus Support Applications for Stay

Defending the Republic is engaged in challenging the vaccine mandate applicable to the Department of Defense, arguing that the mandate presents unconstitutional infringements on religious freedoms and the right to refuse medical treatment. 

The vaccine mandates represent unprecedented federal usurpations of power.  Nearly the entirety of the adult federal workforce is being conscripted to receive an experimental and irreversible medical treatment.  


 

Former OSHA Administrators Charles Jeffress, David Michaels, and Gerard Scannell as Amici in Opposition to Emergency Applications for Stay(or Injunction) Pending Certiorari Review

Former OSHA Administrators in Opposition to Applications for Stay

Three former Occupational Safety and Health Administration officials oppose a stay of the OSHA vaccine mandate, as it would impede implementation of measures intended to stop Covid-19.  

OSHA may regulate exposure to workplace hazards, including communicable disease, and may develop measures for immunization with religious exemptions.  OSHA can include the impact of workplace hazards on families, and has responded to concerns with bloodborne illnesses, hazardous waste, and respiratory conditions.  

Where the Secretary acts within statutory authorization, Chevon deference should be the norm.  

Simply because a condition exists outside the workplace does not mean that OSHA cannot address the condition within the workplace.  


 

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

An Indiana university coalition advocates for medical autonomy within the university community.  The group supports freedom of choice and opposes medical segregation or discrimination regarding access to education, employment, housing and community events.  

Covid-19 vaccines do not prevent infection and transmission.  The vaccines are better considered to be medical treatments ameliorating more serious aspects of Covid-19, but they are not a public health measure.  

OSHA does not have the authority to require unwanted medical treatment.  It is noteworthy that the Centers for Disease Control changed the definition of”vaccine” to conform to Covid-19 therapeutics. 

The OSHA Emergency Temporary Standard violates principles of bioethics concerning autonomy and choice in medical treatment.  

OSHA does not have police powers.  The states, not federal agencies, have police powers and those police powers are bound by the Constitution.  

OSHA cannot force the test/vaccine choice on the employee and pre-enforcement review requires a ‘harder look’ at such a measure.  Rigorous scrutiny is required where medical autonomy and consent are in issue.

Jacobson does not apply here because the OSHA mandate concerns a medical treatment, not a public health measure.  

A personal decision to refuse a medical treatment does not create a risk to others to whom disease might spread.  Refusal only impacts the person who refuses. 

The presupposition that vaccines would slow the spread of disease is in error.  


 

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

The individual and organizational amici provide credentialing for chaplains in the military.  The organization exists to promote religious free exercise.  

Amicus objects to the OSHA vaccine mandate as it is not a true vaccine, as the overwhelming survival rate of persons with Covid-19 infections suggests that there is no grave hazard, and as the mandate fails to consider religious concerns. OSHA does not have authority to impose measures where there is no hazard.  This is particularly problematic where the proposed measure does not inhibit transmission or contraction of the Covid-19 virus and associated illness.  Moreover, the fact that the Centers for Disease Control changed the definition of ‘vaccine’ to include the current injections is problematic.  

Those who resist vaccination are subject to punishment, either in the form of loss of their livelihoods, or, if masking and testing is chosen, in the form of fines, as the individual employee must bear the not insignificant costs of testing.  Further, testing does not provide valid information about contagion and thus is not helpful in curbing disease transmission, and a distinction between testing unvaccinated versus vaccinated individuals makes no sense, as both unvaccinated and vaccinated persons can transmit the Covid-19 virus.

Finally, the social costs of the vaccine mandate are difficult to calculate, as the mandate may usher in an era of medical segregation in which the vaccinated obtain a status superior to those who are not vaccinated.  


 

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Concerned with constitutional liberties in the context of expanding federal powers, amicus foundation asserts that Jacobson was not a blank check.  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Congress must use especially clear language where, as here, Congress intends to upset the balance between federal and state powers.

Emergencies cannot be pretexts for denials of civil liberties and usurpation of powers.  The measures in issue raise concerns about bodily integrity, informed consent, and refusal of medical treatment.  

Jacobson was a narrow ruling which recognized the potential for government overreach.  Current analysis should require a compelling government interest.  Even if a compelling government interest could be found, the government has not chosen the least intrusive means of serving that interest.  


 

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review  

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review 

The electrical workers’ unions think that unvaccinated members should not be forced to choose between vaccination and supporting their families.  The vaccine mandate is well outside OSHA’s traditional bailiwick.

Unions can work with management quite effectively to develop Covid-19 policy.  Particularly as the virus and infections will change over time, it is preferable to allow for hands on negotiation rather than to accept top-down demands. 

Traditionally, OSHA does not regulate employers and employees.  Here, there are significant personal cost consequences to employees and a demand that employees subite to an irreversible medical procedure that affects the individual both when working and when not working. 

Although it is true that a hazard need not be solely a workplace hazard for regulation to be proper, the federal government does not routinely impose costs on employees.  


 

Members of Congress as Amici Curiae in Support of Applicants

Members of Congress as Amici Curiae in Support of Applicants

One hundred eighty three members of both houses of Congress fer the disregard of separation of powers principles that th eOSHA vaccine mandate represents.  Congress has not authorized OSHA’s action:  theser exist no deletion of power nor an intelligible principle to support delegation of power to OSHA.  Public health care does not fall within OSHA”s emergency powers, yet OSHA wants to expand those powers outside the workplace.  There is no grave danger that OSHA might address nor is a virus a toxic or hazardous agent as contemplated in the OSHA act.  

The vaccine mandate lacks the ‘necessity’ the OSHA statute requires and the measure itself does not inhibit contagion and contamination.  A rule that does nothing to address a (non-extant) grave danger is not a measure that is “necessary,” as the OSHA statute contemplates.

Equally problematic is the absence of any limiting principles application to ASHA’s actions, which gives rise to non-delegation concerns.  The purpose of reducing the number of unvaccinated individuals on its face exceeds OSHA”s jurisdiction to regulate some workplace safety concerns.  And even if there were authority to act, the failure of Congress to state clearly the principles to guide OSHA causes ‘major questions’ doctrine problems as the vaccine mandate upsets the federal – state power balance. 


 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

Advocates for the physically and mentally disabled support the OSHA Emergency Temporary Standard because, they assert, the physically and mentally disapbled are particularly vulnerable to Covid-19 workplace infection, and face higher mortality rates if they are infected.  Those who refuse vaccination or refusing masking and testing present a new workplace hazard.   Studies suggest that the Emergency Temporary Standard is a necessary measure in mitigation.  Enjoying the Emergency Temporary Standard would disproportionately affect medically vulnerable and disabled persons. 


 

National Employment Lawyers Association and Jobs with Justice Education Fund in Opposition to Emergency Applications for a Stay or Injunction Pending Review

National Employment Lawyers Association and Jobs with Justice Education Foundation Amicus Brief

Acceptance of petitioners’ arguments would open many existing workplace regulations to challenge.

If workers are given a liberty interest superseding federal regulatory powers, then workers may refuse to work. 

The federal government has regulated workplaces in the past, i.e., with drug testing, permitting physical qualifications for work, mandating retirement, and regulating the use of hard hats or the advisability of beards.

With respect to major questions, judicial line drawing between major and minor issues is not committed to the judicial branch.

Petitioners’ Commerce Clause argument would invalidate all federal employment legislation.  It is well established that federal regulation may be applied to noneconomic activity with economic consequences.  


 

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small businesses fear that a stay will cause them to lose the protections that would flow from large businesses’ compliance with the OSHA vaccine mandate.  As some states have interfered with eemployers’ efforts to require vaccination, federal intervention is needed.  


 

Standard Process, Inc. in Support of Emergency Application for Administrative Stay, Stay, and Alternative Petition for Stay Certiorari Before Judgment

Standard Process Inc. as Amicus in Support of Stay and Certiorari Before Judgment

This whole food nutritional supplementation manufacturer fears that the OSHA vaccine mandate will precipitate mass employee resignations,and that, owing to Standard Process’s rural location, those employees will not be replaced.

Testing is not accessible in the way that the government would like to believe.  Equally importantly, employer compliance costs are extraordinary and are neither private nor self-contained.  

In all, the vaccine mandate needlessly undermines both private and public interests. 


 

Texas Values, et al. as Amici n Support of Applicants

Texas Values, et al. as Amici in Support of Applicants

States’ ‘family values” policy advocates object to widespread regulation of employees without notice and comment and without proper concern for religious exercise.  The administrative state is particularly prone to disregarding religious liberty. OSHA has taken the position that employees’ religious interests are outside OSHA’s purview, but even with their ‘proper’ administrative nice, those concerns do not receive fair treatment, as employers may disregard religious concerns where addressing them would require more than de minimis costs.  The public has been denied a voice in the development of this sweeping measure, a measure which lies outside OSHA’s statutory authority.  


 

Tore Says LLC in Support of Petitioners

Tore Says LLC as Amicus in Support of Petitioners

This multimedia news outlet focuses on the thinking of the founding fathers with particular concern for the Ninth and Tenth Amendments to the U.S. Constitution.

Corporations have constitutional rights, and ought to be free from government intrusion, as the government has only those rights which are granted to it by the people.  The Ninth Amendment guarantees against federal intrusion and the Fourteenth Amendment guarantees against state intrusion. 

Because of the Ninth Amendment, there is no authority for the government intrusion that the vaccine mandate represents, but even if there were such a power to intrude, that power would be reserved to the states.  

Public health traditionally is entrusted to the states.  No federal police power exist to support the board exercise of federal powers in issue here.  


 

Washington Legal Foundation in Support of Applicants 

Washington Legal Foundation in Support of Applicants

This foundation supports free enterprise, individual rights, limited government, and the rule of law.  The vaccine mandates are causing supply chain issues and rising prices.  The vaccine mandate is not within OSHA’s authority but if it were notice and comment would be needed, not an emergency measure implemented outside ordinary procedure.  

The mandate presente employees with a forced choice between vaccination,testing, or losing employment.  

The emergency measure is odd in that in June, 2020, the U.S. Court of Appeals for the District of Columbia Circuit observed that OSHA need not issue a mandate.  This is all the more curious because the nation is more than one year, and closer to two years, beyond the inception of the pandemic, and the government wants to use an ‘emergency’ measure.

This is a fitting case for granting certiorari before judgment, given the time constraints presented by the Emergency Temporary Standard, which will expire by its terms in six months.  


 

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

This group defines itself as promoting constitutional rights and offers that the vaccine mandate represents the largest disruption of personal choice and bodily integrity in history.  

Since Jacobson, substantive due process rights have developed in recognition of individual fundamental unenumerated rights under the Fourteenth Amendment.  

Tiers of tests for unenumerated rights have been inconsistently applied, sometimes utilizing strict scrutiny, and sometimes not, depending on whether bodily integrity or self-determination is in issue.  Abortion is recognized as a fundamental right, while refusal of medical treatment requires balancing of personal and state interests, with the scales favoring the state.  This uneven treatment of similar questions needs to be addressed.  

The vaccination or testing/masking alternatives are not true alternatives because the costs of testing, which must be borne by employees, are so prohibitive that the average employee is forced to submit to vaccination.  

The Commerce Clause concerns economic issues only and is not concerned with non-economic public health activity, which belongs to the states.  

It is not proper to characterize any skepticism concerning the vaccines as an “anti-vax” position.  The reliance on inconsistent statements of “experts” about Covid-19 is of great concern.  

The OSHA vaccine mandate is a major question because mandatory medical treatment for vast portions of the population is a major political and economic question.

State power to administer public health measures should be retained.  The regulation of containment and remediation of viral transmission is a state matter, but in any case the regulation of a virus is not a regulation of activity within the Commerce Clause.

Upholding the vaccine mandate would open the door to unprecedented federal regulation of public health questions.  

Stay of OSHA Covid-19 Private Employer Vaccine Mandate Dissolved:  Sixth Circuit Panel Finds Employers Failed to Meet Standard for Granting Stay


In re:  MCP No. 165, Occupational Safety and Health Administration, Interim Final Rule; Covid-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 61402. No. 21-7000 (6th Cir.). Order dissolving Fifth Circuit stay entered December 17, 2021.


The United States Court of Appeals for the Sixth Circuit is now administering consolidated litigation from all federal circuits relating to the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS)  issued November 5, 2021.

The Emergency Temporary Standard  mandates that employers with more than one hundred employees require that employees be vaccinated against Covid-19 or be tested frequently and masked.  

On December 17, a three-member panel of judges of the Sixth Circuit dissolved the stay of the ETS entered by the Fifth Circuit Court of Appeals prior to multi-district litigation consolidation.  

Two of the three judges have published an opinion providing  a point-by-point refutation of the Fifth Circuit’s views  One judge has written a separate concurrence.  A third has dissented.  

No stealing bases. It appears that the courts may be experiencing ’emergency’ fatigue, and even if this is not so, skipping procedural steps has been discouraged. Earlier in the week the Sixth Circuit denied motions for initial review en banc.  This will serve to inhibit the litigants in seeking immediate review in the U.S. Supreme Court prior to seeking rehearing en banc and could aid the Supreme Court, if such immediate review is nonetheless sought, in remanding the case to the federal appellate court for further proceedings.  

          In procedurally unrelated but topically similar litigation, the United States Supreme Court has denied a petition to stay New York’s vaccine mandate pending review of a petition for certiorari which argues that New York’s failure to provide for religious exemption from vaccination violates the First Amendment.

The Opinion in the Multidistrict Litigation.  The Sixth Circuit perceives the Covid-19 virus to be an ongoing causative agent, one which has killed people and shut down the economy, which prompted employers to seek guidance from the Department of Labor Occupational Health and Safety Administration (OSHA), which in turn, on November 5, 2021, issued an Emergency Temporary Standard requiring certain employers to require employee vaccination or face covering and frequent testing.

          The Fifth Circuit enjoined implementation of the ETS the day after it was issued.  The court affirmed its decision a week later.

          The Sixth Circuit now observes that OSHA may issue emergency orders bypassing public notice and comment proceedings where grave danger requires employee protection.

          The OSHA emergency measure does not require employee vaccination, the court has found, as employees may be masked and tested or work from home, but employers must maintain vaccination records or face penalties. 

The Sixth Circuit panel has examined the four established evaluative factors to be considered in staying any measure before litigation.

Petitioners’ Likelihood of Success on the Merits.

          Authority for OSHA’s Action Exists.  Contrary to the Fifth Circuit’s determination, the Sixth Circuit perceives that OSHA may regulate infectious diseases within its statutory authority. 

          The “major questions” doctrine cited by the Fifth Circuit is an interpretive tool permitting exception from deference to agency authority, but it is vague and it is in any case inapplicable where agency authority has not been expanded, the court has explained.  

          Same emergency, different authority. The OSHA Covid-19 employer mandate can be distinguished from the eviction moratorium declared unconstitutional earlier this year by the U.S. Supreme Court.  The Centers for Disease Control lacks authority to regulate landlord-tenant relations, as the Supreme Court has found, but here, the Sixth Circuit panel has concluded, OSHA has established authority to regulate workplace safety.

          Moreover, OSHA gathered evidence substantiating its conclusion that an emergency exists.  The Sixth Circuit declined to find that any necessity permitting emergency intervention by OSHA be universal or absolute, but rather found that the persistence of workplace issues prompted issuance of the emergency temporary standard as the last arrow in the Secretary of Labor’s quiver. 

          The federal appellate judges dismissed attacks on the OSHA measure as over or under inclusive, finding that the efficacy of a measure, particularly an emergency measure, need not be perfectly calibrated or accompanied by a cost-benefit analysis.

          The panel dismissed the notion embraced by the Fifth Circuit that the OSHA mandate is in violation of the Commerce Clause, and impact on interstate commerce, such as viral contagion, is sufficient to establish a basis for federal law and federal preemption. 

          The Sixth Circuit judges found the non-delegation doctrine to be somewhat musty and in any case inapposite where it is well established that Congress may delegate to executive branch powers to act in the public interest or to protect public health. 

Whether Irreparable Harm Will Befall Petitioners in the Absence of a Stay. 

The Sixth Circuit explored the irreparable harm issue notwithstanding its view that its analysis of the petitioners’ assertions and arguments fail to demonstrate the likelihood of success on the merits, which could have ended the inquiry because the public interest analysis merges with the likelihood of success on the merits analysis where the government is a party.

The judges dismissed as “speculative” employers’ views of compliance cost, including loss of workers, and noted that if cited for non-compliance, an employer can always assert the impossibility of compliance as a defense.  The potential harm to the public of failure to implement Covid-19 contagion mitigation measures such as the OSHA employer mandate, in light of the harms already incurred by the nation, are staggering, and the risks to the public are only underscored where petitioners have not shown that they are likely to prevail on  the merits.  

Note well:  this panel’s opinion may not be within the judiciary’s bailiwick.

In a separate concurrence, Circuit Judge Gibbons has written to emphasize his view that the judicial branch ought not be as active in policy questions as this litigation has demanded.  The judge notes that questions of what the other branches might have done differently or “sweeping pronouncements” about constitutional law, themselves “untethered” to the present case, invite the judicial branch to exceed its limits.  Separation of powers principles preclude judicial second-guessing of coordinate branches.  Where a court concludes that an agency has acted within its authority and within constitutional bounds, the judge opined, the court ought not press further into realms committed to other branches’ expertise.  

Au Contraire:  Dissenting Judge Opines that Panel Analysis is Wrong

The dissenting member of the panel thinks the question of constitutional and statutory authority is squarely within the power of the judiciary.

The dissent wholly disagrees with the view that the OSHA emergency measure permits employers to decide how to manage workplace Covid-19 risks.  Employers must adopt written policies, demand that employees be vaccinated unless exempt, and pay employees who need time off to get vaccinated.  The mask and testing alternative was, by OSHA’s own admission, designed to be unpalatable as by its operation it imposes costs of testing on employers.

The dissent observes that it is not necessary that petitioners demonstrate a likelihood of success on each and every one of its theories in order to substantiate the need for a stay:  the potential to prevail on one theory would suffice.

Petitioners can demonstrate a likelihood of success, the dissent has concluded, because OSHA has exceeded its authority, which limits the promulgation of emergency measures to circumstances in which employees face grave danger and the emergency intervention is necessary to protect employees.

Where OSHA never made a finding that its rule was necessary, the rule cannot be upheld:  the insufficiency of extant measures, which is the justification offered by the Secretary of Labor, will.not meet the “necessary” standard. 

Moreover, effectiveness is a separate question that cannot be bootstrapped into a determination of necessity.

The dissenting justice rejects the notion that emergency measures, by their very nature, need not be as carefully crafted or supported as normative acts, and this is particularly so where OSHA has had nearly two years to consider protections and to evaluate alternatives.  Where no showing of necessity can be made, the emergency measure cannot be sustained.

Of similar concern is that the Secretary failed to locate a “grave danger” that would support the private employer vaccine mandate.  Although viral infection can be dangerous, there is no evidence showing that contracting the disease is a grave threat, as available data show varying levels of risk among different demographics.

There is no evidence linking contraction of Covid-19 to the workplace.  Those who are already vaccinated are not, by and large, imperiled.  Where a mortality rate of one in two hundred and two cases of infection is said to exist among the unvaccinated, OSHA has not met the “grave danger” requirement, particularly where no link to workplace harm has been shown.  

The dissent questions the panel’s minimization of the substance of the “major questions” concerns petitioners raise where OSHA has never issued an emergency measure of the scope of the Covid-19 employer mandate and, the dissent observes, the question is not simply one of the kind of measure OSHA may implement, but also its scope or degree (emphasis in text). 

Given the Supreme Court’s discussion of the “major questions” doctrine in declaring the CDC eviction moratorium to be invalid, it is not accurate to say, as this panel has, that the “major questions” doctrine is an arcane exception to deference to agency expertise.  

Finally, OSHA’s circumspection in other contexts supports similar caution here, and does not support promulgation of an expensive and unparalleled emergency measure.

Employers will be hamstrung by the costs of compliance and by the potential loss of employees that may ensue.  Similarly problematic is the loss that will result to individuals who submit to vaccination only to learn later, as they may,  that the command to do so was not supported in law. 

The dissent points out that OSHA cannot complain that petitioners have not substantiated their claims where by invoking emergency authority OSHA foreclosed the opportunity for notice and comment that would permit submission of evidence for agency consideration.  


Opinion of the U.S. Court of Appeals for the Sixth Circuit Dissolving Stay of OSHA Mandate

In re. MCP No. 165. Sixth Circuit Order December 17, 2021

Correspondence and Opinion of the U.S. Court of Appeals for the Sixth Circuit Denying Initial Hearing En Banc

In re. MCP No. 165, Sixth Circuit Order December 15, 2021

Order of the U.S. Supreme Court Denying Injunctive Relief with Dissenting Opinion

21A145 Dr. A v. Hochul, No. 21A 145 Order and Dissenting Opinion December 13, 2021

Federal Court Enjoins Enforcement of Mandated COVID-19 Vaccination of Healthcare Workers, Observing Not Only Authoritative and Procedural Deficiencies in CMS Order But Also Likelihood that Enforcement Would Exacerbate Crisis in Healthcare Access


Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.)  Order and Opinion entered November 29, 2021.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Defendants’ Notice of Appeal filed November 30, 2021.


The United States District Court for the Eastern District of Missouri has enjoined the federal government from implementing mandated COVID-19 vaccination for healthcare providers and other workers associated with facilities receiving Medicare or Medicaid support.  The United States has filed a notice of appeal from the injunction ordered on November 29th.

The federal trial court observes that the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), lacks Congressional authority for the actions it has taken, which because of its sweep would require explicit and clear authority if it authority could be delegated at all in light of the federalism question that the federal intrusion on private citizens’ health care decisions and the disruption of federal-state balance that the vaccine mandate present.  

Moreover, CMS erred in abandoning notice and requirement provisions, as no excuse for having done so, including any alleged emergency, can be found.

Of particular significance to the court is not merely the shift from encouraging to demanding vaccination of healthcare workers and the application of a one-size-fits-all policy without respect to the institution involved but also the threat to access to care that the mandate provides.

Provider institutions already face a shortage in workers that began before but has been compounded by the COVID-19 pandemic. As mandated vaccination may precipitate additional worker shortages, which in turn will impact access to care, the court agrees that the threat of harm to the public because of mandated vaccination merits injunctive relief.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Order and Opinion November 29, 2021

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Notice of Appeal filed November 30, 2021

The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

New CDC Eviction Moratorium Is Defective, But Federal District Court Cannot Vacate Its Earlier Stay Where the Order of the D.C. Circuit Court of Appeals Upholding that Stay Is the Law of the Case

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-0377-DLF.  Opinion and Order issued August 13, 2021.


The federal district court in the District of Columbia has compared the August 3, 2021 Order of the Centers for Disease Control imposing a nationwide stay of evictions until October 31, 2021 and found it to be not materially different from the order preceding it, which has been found to be, and has been admitted to be, constitutionally defective.  

Were it possible to do so, the federal district court said today, the court would enter an order similar to the order of vacatur issued previously.  The court cannot do so, however, because the United States Court of Appeals for the District of Columbia Circuit refused to disturb the district court’s earlier stay of its order of vacatur.  The appellate court’s refusal to grant relief, which left the district court’s stay of its order of vacatur in place, is the law of the case which the district court may not now ignore. 

The appellate court and the district court were not of the same analytical minds with respect to the initial stay, but this is of no moment at this time.  Plaintiffs’ recourse is in the appellate court or in the United States Supreme Court.  

There is Need for a Meta Crystal Ball.  It is not known at this time whether the plaintiffs will once again seek relief in the United States Supreme Court prior to seeking relief or continuing its current appeal in the D.C. Circuit Court of Appeals.  Although the United States Supreme Court denied plaintiffs’ earlier petition, Justice Kavanaugh opined that he would have agreed with the justices who would have granted relief but for the imminent expiration of the first Centers for Disease Control Order.   While plaintiffs in this case asserted that Justice Kavanaugh’s opinion in essence created a majority that would grant relief, the United States argued the concurrence in denying relief could not be transformed into one granting relief, as plaintits wished, a position with which the district court has agreed.  As the other justices’ votes are known publicly, but their analyses and opinions are not, assessment of a likely outcome if relief were sought first in the Supreme Court will no doubt provoke much discusson. 

JustLawful Observation: Whether in the present posture of the case plaintiffs will renew their request for relief in the United States Supreme Court rather than in the D.C. Circuit Court of Appeals is, of course,  a matter of speculation.  While much of today’s ruling may have too much of a “yes-but-no” flavor, and seem to rely on jurisprudential concepts pleasing to judges and lawyers but confounding to the public, there may be some comfort in considering that it is likely that not too much time will pass before the next round of litigation begins.  

Alabama Association of Realtors, et al. v. HHS, No. 20-0377Memorandum Opinion and Order dated August 13, 2021

Nixxing Ipse Dixit: U.S. Supreme Court Finds New York’s Covid-Related Tenant Financial Hardship Self-Certification Provisions Deny Landlords Due Process

Chrysafis, et al., v. Marks, No. 21A8.  Order granting injunctive relief pending disposition in Second Circuit or of Petition for Certiorari entered August 12, 2021.  


New York’s pandemic related tenant protections preclude eviction if a tenant self-certifies to financial hardship.  Landlords may not challenge such self-certifications.  This, the U.S. Supreme Court has concluded, impairs landlords’ due process interests, as established law has observed that “no man may be a judge in his own case.”  Order of August 12, 2021, citing In re Murchison, 349 U. S. 133, 136 (1952).  

By order entered August 12, 2021,  the Court has enjoined the preclusive effect of tenant self-certifications pending further judicial activity but has left undisturbed the capacity of courts to make assessments of financial hardship in eviction proceedings.  Such assessments could permit receipt of pandemic-related financial aid and could preclude eviction.

Justice Breyer, with Justices Sotomayor and  Kagan,  has dissented, opining that there is no basis in the law for the U.S. Supreme Court to reach the constitutionality of a state law measure which has not been enjoined by a state court, where there has been no determination in the Second Circuit Court of Appeals, where the emergency eviction measures will lapse of their own accord at the end of August, where there is available $2 billion dollars in federal rental assistance, and where landlords are not denied, but only delayed, a hearing, a circumstance which does not violate constitutional due process principles.  

Justice Breyer’s dissent notes that there is no First Amendment compelled speech issue presented by the state’s requirement that factual information be provided to tenants. 

While it is recognized that emergency measures are not wholly insulated from judicial review, it is Justice Breyer’s sense that in this circumstance, where any right to relief is not clearly established, where tenants may face displacement earlier than anticipated, and where the state must craft and administer many scientifically and medically complex emergency measures, the public interest would favor deference to the state.  

The U.S. Supreme Court’s decision has been presented to the federal court in the District of Columbia for consideration in connection with the court’s anticipated ruling on a challenge to the new federal eviction moratorium.

U.S. Supreme Court docket showing entry of order:

21A8 U.S. Supreme Court Docket

Order entered August 12, 2021

CHRYSAFIS . v. MARKS, U.S. Suprerme Court Order with Dissent August 12 2021

Submission to U.S. District Court for the District of Columbia:

Alabama Association of Realtors v. HHS, 20-03377, Notice of Supplemental Authority

Alabama Association of Realtors v. HHS, 20-03377, Exhbit A.

Funny Things Have Happened on the Way to the Fora: Justice Thomas Proffers Adapting Common Carrier Law to Digital Media to Address Speech Concerns

Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).


Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space.  As such, the former president could not block others’ or their responses without violating the First Amendment. 

 

In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.

 

While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.  

 

Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet. 

 

Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason.  This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are.  It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.

 

If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action.  Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally.  While market power has traditionally been a part of common carrier analyses, it is not a determining factor:  entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.  



This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.  


Supreme Court Determination 

20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04_05_2021)

Second Circuit Decision Regarding Rehearing en banc:

Knight First Amendment Inst at Columbia Univ v Trump 953 F3d 216 Mem 2nd Cir 2020

Second Circuit Decision on Appeal:

Knight First Amendment Inst At Columbia Univ v Trump 928 F3d 226 2nd Cir 2019

Opinion of the United States District Court

Knight First Amendment Inst At Columbia Univ v Trump 302 F Supp 3d 541 SD NY 2018


 



 

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020