Antonyuk v. Superintendent of New York State Police, No. 22A557, 598 U.S. ___(2023). January 11, 2023.
Justice Alito and Justice Thomas warn the Second Circuit that its practice of summarily affirming trial court injunctions – even if leavened by issuing expedited briefing orders – must stop: if it does not, the next petition for Supreme Court review will be granted.
22A557 Antonyuk v. Nigrelli (01_11_2023)
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 Note: Justlawful 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
The Religious Sisters of Mercy, et al. v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-11174 (8th Cir.) Opinion December 9, 2022.
Franciscan Alliance, et al., v. Becerra, Secretary of the Department of Health and Human Services, et al., No. 21-1890 (8th Cir.) Opinion August 26, 2022
The Affordable Care Act (ACA) references and incorporates provisions found in civil rights laws which preclude discrimination on the basis of sex. Throughout regulatory iterations issued by the Department of Health and Human Services (HHS), and in light of the Supreme Court’s interpretation of the scope of prohibitions in the civil rights laws in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and further in the light of the absence of religious exemptions in some regulatory provisions, plaintiffs have presented objections to federal courts, stating that any requirement that they provide gender transition treatment would unduly burden sincerely held religious beliefs, all in violations of the Religious Freedom Restoration Act (RFRA).
In the most recently decided case, a federal district court awarded summary judgment to plaintiffs, finding that the government’s acts and regulations substantially burdened the Catholic entities’ practice of religion and finding that less restrictive means existed that would allow the government to meet its legislative goals, e.g., through cost assumption or the awarding of subsidies to other providers for the benefit of transgender individuals seeking transition care.
Observation: This litigation encompasses actions by all coordinate branches of the federal government and their agencies. Additionally, the Department of Health and Human Services and the Equal Employment Opportunity Commission have agreed to join forces to pursue enforcement of laws pertaining to discrimination in transitional health care. It may be wondered whether both obfuscation through repeated regulation and the joining of forces has been intended to deter challenges to the federal government’s positions.
The federal government has presented multiple jurisdictional challenges to plaintiffs’ complaints, asserting that plaintiffs lack standing and the issues lack ripeness.
The Eighth Circuit has concluded that plaintiffs face a credible threat of enforcement action. The appellate panel rejected the idea that the matter is not ripe where plaintiffs’ stance concerning transgender services is in clear violation of federal law. Judicial review is apt where plaintiffs face an “impossible choice:” plaintiffs must choose to violate federal law or to violate their religious beliefs, an untenable burden. Slip Op. at 38.
The Eighth Circuit has established an expansive view of what is required to establish irreparable harm. All that is required is that plaintiffs establish a likely violation of RFRA: “…irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA.” Slip Op. at 39 (citations omitted).
The appellate panel affirmed the award of permanent injunctive relief to plaintiffs with the exception of certain parties found not to have established associational standing.
The Religious Sisters of Mercy, et al. v. Becerra, et al., No. 21-1890 (8th Cir.) December 9, 2022
Franciscan Alliance, et al. v. Becerra, et al., No. 21-11174 (8th Cir.) August 26, 2022
Trump v. United States of America, No. 22-13005 (11th Cir.) Opinion and Order entered on December 1, 2022, reversing and vacating order of United States District Court granting plaintiff Trump equitable relief in a September 5, 2022 order authorizing the appointment of a Special Master to oversee review of documents and things seized from the former President’s residence in August, 2022.
The United States Court of Appeals for the Eleventh Circuit has concluded that the trial court hearing former President Trump’s request for judicial oversight of the review of materials seized from his residence was in error in granting the relief sought. As courts of limited jurisdiction, federal courts cannot exercise equitable jurisdiction absent “callous disregard” of the constitutional rights of an individual to whom a warrant is directed. Such circumstances are not present in this case notwithstanding that a former President is involved. Were the courts to permit challenges to warrants duly authorized and executed in non-extreme circumstances, challenges to searches and seizures would be routinely challenged, impeding, if not crippling, the work of federal investigators. An urgent need for specific items, denial of which would precipitate grave and irreparable harm, might be grounds for relief, but the general assertions presented in this case do not demonstrate such a need. Recitals of statutory possessory interests are not availing where all seizures involve items of possessory interest.
Trump v. USA, No. 22-13005 (11th Cir.) Order and Opinion December 1, 2022
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.
Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.
Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order. The lower court’s order precluded the use of documents with classification markings in a criminal investigation while the documents were under review by a Special Master appointed by the court. The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.
The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling. Such rulings are not permitted except in limited circumstances.
At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.
Application to Vacate Eleventh Circuit Order October 4, 2022
Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022
Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued September 22, 2022 (Not For Publication).
In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago. Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue. The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.
The United States sought interlocutory review in the Eleventh Circuit Court of Appeals. The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed. The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.
Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202
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.
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
Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.
Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law.
Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent. Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.
The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.
Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.
Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs.
The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.
Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch. Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.
Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022
Just Lawful 