Constitutional Cake Wars Continue in Colorado: Baker Found to Have Discriminated Against Transgender Customer

Scardina v. Masterpiece Cakeshop and Jack Phillips, No. 21CA1142 (Colo. App.). Opinion January 26, 2023.


On the day that the U.S. Supreme Court granted certiorari in a case involving Masterpiece Cakeshop and Jack Phillips, petitioner Scardina telephoned the bakery to request a pink cake with blue frosting.  Having secured Phillips’ spouse’s agreement to provide the cake, Scardina stated that the cake was inteded to celebrarte gender transition.

The cake shop and its proprietor then declined to provide the cake. Expressive and religious reasons were cited.

Scardina sued, citing violation of the Colorado Civil Rights Act.

The Colorado Civil Rights Commission settled with Masterpiece Cakeshop and Phillips.  After procedural maneuvers of note only to attorneys, Scardina prevailed in court, and the Colorado Court of Appeals has upheld the trial court’s conclusions.

The Court of Appeals observed Masterpiece Cakeshop’s and Phillips’ refusal to provide the pink cake with blue frosting, because it bore no written message, could not fall within the “offensiveness rule,” a loosely constructed, somewhat doubtful, secular corollary to religious objections.  

The court rejected the compelled speech challenge, observing that not all expressive conduct is protected.  Here, where the cake that admittedly have been provided to others but for the customer’s wants, the court found it impossible to conclude that protected expression was in issue.

The bakery’s and the baker’s objection to being tied to an expression also failed, as the court likened the provision of the cake, even if it could be seen as carrying a message, carried no more connection to a message than would attach to a person who provided balloons for a birthday party.  

While recognizing the Phillips’ deep religious convictions, the Colorado Court of Appeals found that those convictions must yield where a neutral statute of general applicability, like the anti-discrimination law, is involved, and where no additional constitutional right, as intimated in Employment Division v. 0 Smith, 494 U.S. 872 (1990) could be found, no more heightened analysis would be needed.

The appellate court refused to hear concerns about bias in the proceedings below.  Although there were some minor issues concerning pronouns, the appellate court could find no way in which the bakery or the baker had been treated less than civilly.

Scardina v Masterpiece Cakeshop Inc 2023 COA 8 Colo App 2023

 

“Doctor! Doctor! Give me the news!” Federal court in California says doctors can give patients news without threat of state sanctions for “misinformation,” at least for now.


Hoeg, et al. v. Newsom, 22-cv-1980 (E.D. Cal.); Hoang, et al. v. Attorney General, 22-cv-0214 (E.D. Cal). Order and opinion issued January 25, 2023.


California doctors have alleged that California elected and appointed officials may violate rights protected through 42 U.S.C. Section 1983 by threatening enforcement of a California statute prohibiting the provision of ‘misinformation’ or ‘disinformation’ relating to scientific knowledge and standards, particularly where terms are vague and standards are susceptible of rapid change.

California enacted legislation prohibiting physician dissemination of “misinformation,” defined as false information contrary to scientific consensus.  The statute also prohibits intentional dissemination of misinformation, characterized as “disinformation.”  Both such offenses must occur in the context of the patient-physician relationship.  Violations re considered unprofessional conduct subject to disciplinary action.

The federal district court for the Eastern District of California has observed that plaintiffs’ claims implicate First Amendment “chilling effect” concerns, favoring standing, particularly where self-censorship is implicated.

Standing is liberally construed where statutory vagueness implicates First Amendment interests, as the Supreme Court has held that “the Constitution protects the right to receive information and ideas…”  (citation omitted).

This means that even if a statute does not apply to a person, if the statute interfrers with a right to receive information, standing to challenge that law exists.

Because the members of the associational plaintiffs would have standing to sue individually, the associations have standing.

Unconstitutional vagueness may be found where a statute leaves a speaker in doubt as to what is prohibited, thereby inhibiting speech.

The California statutory scheme provides that violation of the dissemination of misinformation/disinformation standards could be found where the information in issue could be outside “contemporary scientific consensus,” but the court found those terms to be vague as lacking in established meaning, leaving providers to guess what is prohibited.  This is especially so, the court observed, where “scientific consensus” is not fixed but is rapidly changing, subjecting providers to all the more heightened guesswork.

The court noted that precedent indicates that “the changing nature of a medical term’s meaning is evidence of vagueness.” Slip op. at 24. Forbes v. Napolitano, 236 F.3d 1009, 1012 (9th Cir. 2000).  

While no objective meaning of a statute’s term can be found, as is observed of “misinformation,” it is likely that a vagueness challenge will prove successful.

The inclusion of reference to a “standard of care” compounds confusion rather then providing clarification that might save the statute from a vagueness challenge.  Slip op. 15 26, n. 9.  Even if plausibly comprehensible, the statute improperly conflates advice, information and treatment.  Id.

The falsity required to find a disinformation violation is likewise constitutionally defective, the court observed, where what is “settled” is rarely so.

This separate ‘falsity’ element of the statute, even if it were to offer truthfulness as a defense, fails where “drawing a line between what is true and what is settled by scientific consensus is difficult, if not impossible,” the court has opined.  This is particularly so, the court noted, where evidence and inquiry is rapidly changing, as in pandemic conditions.  Slip op. at 27.

Any limiting construction proffered fails to save the statute, the court has observed, as the proffered construction would require rewriting the statute.

In granting a preliminary inunction against enforcement of the statute pending resolution on the merits, the court cautioned that its ruling was confined only to the Section 1983 vagueness challenge, and was not intended to reach the merits of the First Amendment claims.

Justlawful note:  If the court did not reach the First Amendment issues here, it is not unfair to say the court came fairly close to so doing.  The court may have its own reasons for guardedness: perhaps it was to dissuade an interlocutory appeal.

Justlawful Copyright NoteJustlawful very much hopes that Robert Palmer, if he were alive, would consider a citation to his 1978 recording, written by Moon Martin, to be a compliment rather than an infringement,.  Should that hope fail, Justlawful would argue that this limited reference to a well known lyric would be fair use.

Hoeg, et al. v. Newsom and Hoang, et al. v. Attorney General Opinion January 25, 2023

California’s Public Access Law Requires Access to Professor’s Emails About Articles Later Withdrawn or Corrected


Iloh v. Regents of the University of California and The Center for Scientific Integrity, No. G060856.  Opinion January 13, 2023.


A science watchdog entity submitted a public records request to the University of California after the departure of a professor whose work had been retracted or corrected after publication.  The departed professor failed to obtain injunctive relief, having argued that the records were not public records subject to disclosure, notwithstanding that a university email address was used in discussions about publication. 

The California Court of Appeals has affirmed the denial of injunctive relief.

Ms. Iloh argued that she acted on her own behalf in subjecting material for publication.  

The appellate court observed that California’s Public Records Act compels disclosure of public records unless exempted.  Parties may bring challenges under the act to compel disclosure but parties seeking to prevent disclosure, as here, must initiate an independent investigation to demonstrate that the government lacks discretion to disclose the records in issue.  

The first inquiry is whether the documents in issue are public records, for if they are not, statutory claims do not apply.

To be a public record, a document must be related to the conduct of public business and be prepared, owned, used or retained by the government.

The use of a public entity’s email system makes the correspondence in issue owned, used or retained by a public entity.

In this case, the professor’s publications were related to and in furtherance of her position at a public university, making them part of the “public’s business.”  

Although the appellate court acknowledged Iloh’s ‘catchall” interest in research integrity and freedom, the post-publication documents in issue do not merit the protections afforded pre-publication exchanges, particularly where public interest in academic integrity would favor disclosure.  

The appellate court declined to transform the catchall exemption into one which would create a pre- and post- publication bright line rule:  each case must be evaluated independently.

The Court of Appeals, like the trial court, could not find the personnel records exemption applicable, particularly where correspondence was in issue and where, even if some documents made their wa to Iloh’s personnel file, the public interest in disclosure outweighs any claim to privacy Iloh asserts with respect to public records.

The appellate court declined to reverse the trial court order because the trial court relied on CPRA and not “reverse” CPRA cases, reasoning that the trial court’s conclusion may be sustained if it can be seen as correct on any theory.  As the court’s reasons for denial of injunctive relief were sound, there is no abuse of discretion, and the trial court’s order is upheld. 

Iloh v. Univerity of California, No. G060856. California Court of Appeal, January 13, 2023.

Dismissal of Claim Arising from Allegedly Racially Based Student Harassment Affirmed by Fifth Circuit

B.W., a minor, by next friends v. Austin Independent School District, No. 22-50158 (5th Cir.) January 9, 2023.


Plaintiff sued the school district for race based discrimination and retaliation under Title VI of the Civil Rights Act of 1964, as amended, asserting that the school district was indifferent to mistreatment suffered when plaintiff appeared in school wearing clothing or carrying signs identified with conservative figures.  Incidents included a locker room encounter in which students from one ethnic group taunted students from another ethnic group, including plaintiff, and an individual student’s lunchroom threat to kill all who support those identified with plaintiff’s clothes.

 

Plaintiff withdrew from school and initiated claims under 42 U.S.C. Section 1983 premised on the school district’s alleged violations of the First and Fourteenth Amendments, Title Vi, and Texas law.

 

Plaintiff alleged that with knowledge of the harassment plaintiff was suffering, the school district acted with deliberate indifference to his rights, and failed to provide him with a safe environment.

 

The Fifth Circuit affirmed dismissal premised on insufficient evidence, as there were only infrequent race based remarks which were not seen as sufficient to support a Title VI claim.  Title VI concerns only intentional discrimination which can be found if there is deliberate indifference to known harassment.  No such evidence existed on the plaintiff’s record, the court concluded, as plaintiff was tainted for ideological, not racial views.  In particular, no inference could be drawn by identifying the plaintiff’s race with that of a conservative political party, as no evidence indicated any race is precluded from participating in the conservative group.

 

The Fifth Circuit panel noted that plaintiff failed to develop any argument that the school district could be liable for deliberate indifference to student on student harassment, and therefore that this otherwise potentially compelling argument would not be addressed. Slip. op. P. 14, n.1.

 

The plaintiff’s retaliation claim was properly dismissed, as the complaint did not reveal any action taken because plaintiff opposed any unlawful practice or in response to any protected activity in reporting harassment.

 

The Fifth Circuit observed that nothing in the opinion indicates that the appellate court has looked away from the bullying plaintiff described, only that the law cited “does not support a claim for bullying generally.”  Slip. op. At 16.  


B.W. v. Austin Independent School District, No. 22-50158.0 (5th Cri.) January 9, 2023

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

 

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.)

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

Redacted Affidavit in Support of Warrant to Search Former President’s Residence Reveals Background Information and Theory Concerning Alleged Presence of Classified Materials But Conceals Details


 

In re: Sealed Search Warrant, No. 22-mj-8332 (BER). Redacted Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize docketed August 26, 2022.


The Department of Justice has complied with the U.S. District Court’s order to file a public copy of the affidavit supporting a search and seizure of former President Donald J. Trump’s residence, which occurred on August 8, 2022.  

 

The Department of Justice has outlined the reasons for the redactions made to the documents, which were reviewed by the court before the affidavit was released.  The federal government sought redactions to protect: 1) witness identities; 2) investigative plans or “roadmaps”; 3) Rule 6(e)[grand jury] materials; 4) law enforcement safety; 5) privacy of involved individuals.

 

The redacted affidavit recites that in January, 2022, the National Archives and Records Administration (NARA) received fifteen boxes of documents transferred from the former president’s Florida residence.  NARA became concerned because documents bearing classification markings were included in the transmittal, and was also concerned about the organization and presentation of those materials.  

 

NARA contacted the Department of Justice about these concerns, which prompted the Federal Bureau of Investigation to open a criminal investigation to explore how documents bearing classification markings were removed from the White House, the nature of any storage at the former president’s Florida residence, whether additional materials were stored there, and who was involved in the removal and storage of classified informative in an unauthorized space. 

 

Investigation confirmed the presence of documents marked classified within the transmittal to NARA.  Review prompted the observation that National Defense Information (NDI) was likely within those documents, and that the storage of the fifteen boxes sent to NARA had been at an unauthorized location. 

 

A section of the affidavit provides the caption “There is Probable Cause to Believe that Documents Containing Classified NDI and Presidential Records Remain at the Premises,” but the section is otherwise entirely redacted, with the exception of a recital concerning the location of documents in unauthorized spaces, a reference to ‘violations,’ and a description of the area to be searched.  Concern about the presence of third parties is expressed.  

 

Much of the affidavit recites what the Federal Bureau of Investigation proffers as support in the law for issuance of a warrant to search the former president’s residence and to seize any responsive materials found there, which would include materials believed to be subject to the Presidential Records Act.  

 

The affidavit mentions a published report describing the presence of moving vans at the former president’s Florida residence in January, 2021, and discloses that NARA was advised in May, 2021 that Presidential Records Act materials had been found and were ready to be retrieved. 

 

The affiant reiterates that inventory of the documents transferred to NARA in January, 2022 bore classification markings at high levels of restriction and that those documents were likely to contain National Defense Information (NDI).  

 

Because of believed violations of laws addressing the management of classified information and the belief that materials illegally possess would be found at the former president’s residence, a warrant was sought, with procedural assurances to ensure proper management of seized materials proffered.  

 

Notice of Filing by United States August 26 2022

[Redacted] Affidavit in Support of Application for Warrant Unsealed August 26 2022

[Redacted] Memorandum of Law Supporting Redactions Unsealed August 26 2022

[Redacted] Attachment Itemizing Redactions Unsealed August 26, 2022

 

 

Former President Challenges FBI Raid on Residence, While Magistrate Holds Affidavit in Support of Warrant Must be Disclosed


In the Matter of Search of Mar-a-Lago, 22-cv-81294 (S.D. Fl.).  Motion for Judicial Oversight and Additional Relief, August 22, 2022

In re: Sealed Search Warrant, 22-8332 (BER).  Order on Motions to Unseal, August 22, 2022.


Pursuant to a federal warrant, on August 8, 2022, Federal Bureau of Investigation agents searched for and removed materials from former President Donald Trump’s Florida residence.  Subsequently the former president was presented with a list of materials removed.  

Much speculation and discussion has attended this historic use of law enforcement personnel.  

The former president has raised Fourth Amendment challenges to the search of Mar-a-Lago.  Stressing that at all times documents relating to presidential records he was cooperative with federal authorities, he argues that the warrant itself was so nonspecific and overly broad as to offend the Fourth Amendment.

Moreover, the former president has moved for appointment of a Special Master to oversee the review of seized materials, arguing that a “clean team” of federal agents ought not be permitted to unilaterally conduct the review, and further arguing that the ‘receipt’ from the government is deficient in that it fails to describe fairly what was seized, precluding fair challenge to any review or disposition of seized materials. 

Although the scaffolding of the warrant has been disclosed, the affidavit has been withheld by the government, which has cited the personal safety of informants or witnesses and to potential disruption of ongoing investigations and proceedings.  Multiple media defendants have challenged that position, arguing that the public interest in this matter is sufficient to overcome the government’s interest in protecting sources and materials.

The magistrate judge who issued the warrant has agreed with the media intervenors, subject to any appropriate redactions, proposals for which he has invited the Department of Justice to submit by August 25.  

In re Matter of Search of Mar-a-Lago 22cv81294 (S.D. Fla.) Motion for Judicial Oversight and Additional Relief, August 22 2022.

In re Sealed Search Warrant 22mj08332 (BER) Order on Motions to Unseal August 22 2022.

Gadflies Allowed:  Maine School Board Cannot Banish Parent Whose Speech Causes Them Discomfort


McBreairty v. School Board of RSU22, et al., No. 1:22-cv-00206-NT (D. Maine).  Order granting temporary restraining order entered July 20, 2022. 


Public Schools, Public Participation.  Public schools in Maine are managed through town participation in Regional School Units, here RSU22.  The public is invited to participate in school decision making through time set aside for public comment at town school board meetings.  That public participation is governed by guidance requiring common etiquette and forbidding speech in excess of three minutes, gossip, complaints about individuals, defamation, and vulgarity.

Violation of these policies may result in removal from the meeting. 

Trouble in RSU22. Beginning in the autumn of 2021, and continuing until early May, 2022, parent and Hamden town resident Shawn McBreairty spoke at meetings about his concern that school library materials included sexual material not appropriate for students.

At times McBreairty was said to exceed three minutes’ speech, on one occasion he made a brash accusation, and he was criticized for playing a recording describing a sexual act that gave rise to his concerns.

In May, 2022, the school board wrote to McBreairty’s counsel, providing notice that McBreairty was suspended from attending further school board meetings for eight months.  Upon arrival at a June, 2022 board meeting, McBreairty was precluded from attending, and was issued a criminal trespass notice forbidding his attendance at RSU22 school functions, whether in person or online.

McBreairty sued the school board in federal court alleging violation of his First Amendment rights and demanding immediate injunctive relief.

Injunctive Relief and the First Amendment.  Courts cannot compel action or restraint from action before trial unless a complainant can demonstrate a likelihood of success on the merits of his case, that irreparable harm would result if injunctive relief were not granted, that the balance of equities favors relief, and that the public interest would be served by relief.  

Irreparable harm is presumed when speech is restricted.  

Obscene speech is not protected by the First Amendment.  Here, however, the court found that McBreairty’s reference to a sexual act lacked prurience and was not, in the context, without merit.  Thus the speech found objectionable by the school board was nonetheless protected by the First Amendment.

Foraging through Forum Analysis.  The government must establish the constitutionality of any speech restrictions the government imposes.  Review considers the places where speech will occur and the purposes of any gathering.  “Forum analysis,” which proceeds from great liberality in speech to some restrictions upon speech, while superficially appealing, is nonetheless not infrequently something of a bog.

The federal court in Maine has provided a primer describing the degrees and kind of government restrictions that are n .  Traditional public forums, such as parks, streets, or other places historically used for public communications, are free from regulation except where a government can demonstrate that any restriction is neutral and narrowly tailored to a compelling government interest. While time, place and manner restraints may be imposed, alternative communication channels must exist.  

Where a government has designated that a space be open to the public, the same rules as for traditional public forums apply. 

Limited public forums are open to certain groups or for certain topics, and speech may be restricted provided no permissible speech is restricted on the basis of viewpoint and that any restriction is reasonable in light of a forum’s purpose.  

Nonpublic government property not traditionally or by designation used for public conversations may be subjected to speech restrictions provided that the goal of any restriction is not the suppression of disfavored speech.  

Looking to Other Court’s Conclusions in the Absence of Controlling Precedent.  Neither the U.S. Supreme Court of the U.S. Court of Appeals for the First Circuit has decided what sort of forum a school board meeting is, suggesting that the court might look to the determinations of other courts, most of which have found that school meetings are limited public forums.  

The court rejected McBreairty’s argument that school boards are traditional public forums subject to only the most narrow government restrictions.  School boards meet for particular purposes to discuss particular topics:  as such, school boards may reasonably impose order on those proceedings.    

As a limited public forum, a school board may regulate access in light of the forum’s purposes but the state may not unreasonably exclude speech based on viewpoint.  

Distinguishing between content and viewpoint based restrictions allows a governing body to restrict speech as it relates to the purpose of the forum while forbidding excluding points of view on matters that are otherwise related to a forum’s purpose.  

There May Be Some Discomfort.  The court found McBreairty’s public comments concerned the school.  Even if at times unorthodox or provocative, the court perceived that in the main McBreairty did not violate school board policy, although he did do so by referencing school personnel and exceeding time limits in speaking to the board.  

While the warning letter issued to McBreairty might have carried the potential to chill speech, as McBreairty appeared undeterred as a matter of fact, that issue is not central to the decision. 

Having rejected the idea that McBreairty’s speech was obscene, the court pointed with concern toward what appeared to be an ad hoc and cumulative approach to McBreairty’s appearances before the board.  Any discomfort experienced by the board cannot justify restricting protected speech.

This Long is Too Long.  Even if viewpoint discrimination were not conclusively established, an eight month ban on McBreairty’s presence at school board meetings is unreasonable, the court found.  

Injunctive Relief Awarded.  The court found that there is a likelihood that McBreairty will prevail on his as-applied First Amendment challenge and ordered the school to refrain from enforcing the penalties contained in its letter and in the trespass notice.  While the school board has an interest in the orderliness of its meetings, that does not require months-long forfeiture of First Amendment speech rights.

McBreairty v. School Board of RSU22, No. 22-cv-00206 (D. Maine). Order granting TRO July 20, 2022