Thursday, January 27, 2022

Israel, Jewish teaching, and a strange law

A teacher at a Jewish school in Westchester County, N.Y. has sued the Temple and Temple leaders, alleging that she was fired for writing statements critical of Israel on her personal blog (the post at issue was written after she was hired, before she started, and on my birthday, which may not be a material fact). The suit is brought under a provision of New York law that prohibits adverse employment action based on a person's "legal recreational activities," which the plaintiff alleges includes blogging (no comment). The story has garnered s attention, in the Jewish press because it exposes possible fault lines within the Jewish community over Israel and how anti-Zionism fits into Jewish teaching. A number of Jewish academics and leaders issued an open letter to the Temple supporting the woman.

The claim seems to me doomed under the ministerial exemption. Our Lady of Guadalupe says teachers are ministers (for FMLA and ADA purposes, but the First Amendment idea should carry), at least if their duties touch minimally on the religious. Paragraph 11 of the complaint says:

The job was secular rather than religious, and no religious ordination or training was required. The teaching responsibilities were essentially limited to the teaching and tutoring of the Hebrew language to WRT’s learners and students. The other job responsibilities involved assisting and supporting the development of social, cultural and community service programs for the teenagers in the WRT community. 

I doubt that is sufficient to get around the First Amendment. She is teaching Hebrew at least in part because it is necessary for students to learn prayers and "social, cultural, and community service programs" are part of the core of what a Temple does.

But I am wondering if we even reach the First Amendment. Does this law preclude an employer from taking action against someone who expresses or reveals objectionable views, views the employer believes inconsistent with its mission, if done as part of a lawful recreational activity? Can a kosher deli fire a waiter who attended the Unite the Right Rally? What if the Temple fired a custodian or security guard who attends a rally in support of Holocaust denial? If the law prohibits these actions, does that raise First Amendment problems as to the employer, who must employ someone with objectionable political views? If the employer could fire those employees, how does it get around this law? Can the employer fire a person not for their recreational activities (blogging, attending a rally) but for their expressed views, using the lawful recreational activities as evidence of those views?

Employment lawyers, please help.

Posted by Howard Wasserman on January 27, 2022 at 10:09 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 26, 2022

Iowa Law Faculty Fellowship - 2022-2023

From the University of Iowa College of Law:

The University of Iowa College of Law seeks applicants for the Iowa Law Faculty Fellowship.  This program provides research and teaching opportunities, faculty mentoring, and career development for promising legal scholars and teachers aiming to launch new careers in legal academia.  The program also aims to further the College of Law’s and the University of Iowa’s longstanding goals of increasing diversity in the legal profession and recruiting and retaining a more diverse campus community of faculty, staff, and students.  (For information on the College’s DEI commitments and activities, see Diversity, Equity & Inclusion | College of Law - The University of Iowa (uiowa.edu). For information on the University’s DEI commitments and activities, see Diversity, Equity, and Inclusion | The University of Iowa (uiowa.edu).) 

Continue reading "Iowa Law Faculty Fellowship - 2022-2023"

Posted by Sarah Lawsky on January 26, 2022 at 05:32 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Breyer to retire

Story here. I presume Ketanji Jackson will be the nominee, which was part of the point of her elevation to the D.C. Circuit. Any chance Sinema or Manchin will throw a fit on this one?

Posted by Howard Wasserman on January 26, 2022 at 12:38 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, January 25, 2022

Partying Like It's 1937

I've often wondered what teaching Constitutional Law was like in 1937. Now I have an idea. I'm teaching Con Law this semester. Normally I would teach Roe and Casey, but now it's unclear where to take the discussion of those cases with Dobbs pending. We also do Grutter, but now that decision is on the chopping block. That's a lot to unpack without any prospect of a resolution during the course. My empathy goes out to my fellow Con Law teachers right now.

Posted by Gerard Magliocca on January 25, 2022 at 10:08 AM | Permalink | Comments (0)

Monday, January 24, 2022

Which parts of NYT v. Sullivan?

Sherry Colb writes about the cert petition in Coral Ridge Ministries, a series of defamation actions against the Southern Poverty Law Center for labeling it a hate group. The petition, on which the Court called for a response, asks the Court to overrule New York Times or limit it to public officials and not public figures.

I have argued before that the talk of overruling NYT is non-specific to the point of inaccuracy. What do people want to eliminate--the actual malice requirement or the larger edifice created in later cases? Coral Ridge seems an inappropriate case for this issue, because this case should not fail on actual malice but because "hate group" is opinion based on subject criteria rather than a provable assertion of fact.

Posted by Howard Wasserman on January 24, 2022 at 01:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Amnesty and Pardons

One question that could arise under Section Three of the Fourteenth Amendment is whether someone can refuse congressional amnesty. A person can (and some people do) refuse a presidential pardon. Maybe they don't want the imputation of guilt, or maybe they don't want to accept any conditions attached to the pardon.

Section Three amnesty is analogous to a presidential pardon. Only Congress can relieve someone of a Section Three disability and, in effect, grant them forgiveness for their prior misconduct. Granted, pardons involve criminal cases and Section Three is a civil disability, but for purposes of whether someone can refuse amnesty I don't think that this matters. The same rationale that might lead someone to refuse a pardon--imputation of guilt--might lead someone to refuse an offer of amnesty, especially prior to a determination of ineligibility.

Are there any examples of someone refusing amnesty? Not that I can find. The only item of note is that Jefferson Davis (shortly before he died) indicated in a letter that he would not accept amnesty if offered. In 1979, Congress gave him amnesty and he was unable to refuse.

Posted by Gerard Magliocca on January 24, 2022 at 11:34 AM | Permalink | Comments (0)

Which Jews? (Updated)

This Wall Street Journal essay by Mark Oppenheimer on rising antisemitism has generated some heat. The basic argument is that modern antisemitism in America targets the "shrinking minority of Jews who regularly do Jewish things in Jewish spaces"--attend synagogue or Jewish schools, shop at kosher markets, wear Jewish clothing, etc. But "for people who are Jewish but don’t do Jewish things, the U.S. is less oppressive than ever," as "gentlemen's agreement" antisemitism excluding Jews from neighborhoods, schools, clubs, etc., are "artifacts pf the past."

1) Some accuse Oppenheimer of victim-blaming, of telling that minority to stop doing Jewish things in Jewish spaces so as to avoid being targeted. That is not a fair reading. He is not telling anyone to stop attending these spaces. Quite the opposite--he  ends the piece by praising those who regard Jewish education or praying with fellow Jews as worth the risk. He was not blaming the "Jews who Jew it" or telling them to stop. He was making the point that the new American antisemitism is complicated--rather than an across-the-board societal phenomenon affecting all Jews equally, it is isolated and individualized.

2) Oppenheimer's premise is questionable on its terms. Charlottesville targeted all Jews, not only those who wear kippot and shop in kosher markets. Reports of recent antisemitic incidents seem to target Jews because they are Jewish while operating in secular spaces (although many of these overlap with Israel). Over the weekend, fliers were thrown in front of houses in Miami Beach and Surfside linking Jews to COVID and evil vaccinations (listing the Jews in the CDC, HHS, etc.); similar fliers have been distributed other places. No word on how they picked the houses. Was it random homes in two heavily Jewish towns? Did they look for mezzuzot? And is a mezzuzah "Jewing it," akin to wearing a yarmulke or is it akin to walking through life as Josh Goldberg? He may be right that violence seems to target the obviously Jewish. But a lot of antisemitism is non-violent.

3) The argument conflates institutional (or systemic) and individual antisemitism, so I think the base of his argument is flawed. He compares individual antisemitism, a lot of which is directed at Jewish spaces, with institutional or systemic antisemitism in secular spaces, which he argues no longer exists. But those are unique situations in which regular" Jews and "Jews who Jew it" may not be so different. Gentlemen's-agreement antisemitism in schools, clubs, law firms, and businesses appears to be an artifact of the past for all Jews--universities do not have quotas on Jewish students, regardless of level of observance. Meanwhile, if we focus on individual antisemitism, many Jews of all stripes have been targets  in many spaces. His argument might work if we compare violent antisemitism. High-profile violence appears to have been limited to "obvious" Jews. But that is a narrower and distinct argument.

Posted by Howard Wasserman on January 24, 2022 at 10:41 AM in Howard Wasserman, Religion | Permalink | Comments (0)

Sunday, January 23, 2022

The Invention of Power: Popes, Kings, and the Birth of the West

I wanted to flag a new book by my favorite undergraduate professor, Bruce Bueno de Mesquita. Here is the Abstract: 

In the tradition of Why Nations Fail, this book solves one of the great puzzles of history: Why did the West become the most powerful civilization in the world?

Western exceptionalism—the idea that European civilizations are freer, wealthier, and less violent—is a widespread and powerful political idea. It has been a source of peace and prosperity in some societies, and of ethnic cleansing and havoc in others.

Yet in The Invention of Power, Bruce Bueno de Mesquita draws on his expertise in political maneuvering, deal-making, and game theory to present a revolutionary new theory of Western exceptionalism: that a single, rarely discussed event in the twelfth century changed the course of European and world history. By creating a compromise between churches and nation-states that, in effect, traded money for power and power for money, the 1122 Concordat of Worms incentivized economic growth, facilitated secularization, and improved the lot of the citizenry, all of which set European countries on a course for prosperity. In the centuries since, countries that have had a similar dynamic of competition between church and state have been consistently better off than those that have not.

The Invention of Power upends conventional thinking about European culture, religion, and race and presents a persuasive new vision of world history.

This is a fascinating political science book, but there is also a legal connection. One argument in here is that Magna Carta should be understood in part as a product of the fight between the Pope and King John, not just between King John and the barons. That puts a different twist on that foundational document that merits further thought.

Posted by Gerard Magliocca on January 23, 2022 at 06:47 PM | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Posted by Howard Wasserman on January 22, 2022 at 11:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

Posted by Howard Wasserman on January 22, 2022 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Technology and sports officiating

I oppose and actively dislike replay and most other officiating technology in sports. So why am I happy about the expansion of  the automated strike zone?

The answer is that the ball-strike call is unique in sport. First, the call is difficult for human officials. The umpire must determine whether a ball traveling as extreme speed with outrageous spin passed in the air through an imaginary moving box, simultaneously judging the horizontal and vertical location within that box. And he must make that call between 250 and 300 times each game. Second, the call can be automated in a way other calls cannot be. The call occurs in a confined and stationary space, at which a few cameras can be aimed; it does not require no movement or following the play. Third, it is one of the few technological advances that does not require breaking the flow of the game.

Count me as hoping this works.

Posted by Howard Wasserman on January 21, 2022 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Legislative and Adjudicative Jurisdiction

Kudos to the First Circuit for getting it right in a case involving a federal prosecution for drug trafficking in international waters. The defendants argued, and the court agreed, that extending the Maritime Drug Law Enforcement Act to international waters infringed on international law and thus exceeded congressional authority. The defendants had moved to dismiss for lack of subject matter jurisdiction, but the First Circuit rightly recognized the issue as one of legislative jurisdiction--Congress' power to enact substantive legislation--rather than the subject-matter jurisdiction of the federal courts. Thus the prosecution fails on the merits because the law being enforced was unconstitutional; the prosecution does not fail for lack of judicial jurisdiction.

Posted by Howard Wasserman on January 21, 2022 at 08:32 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink | Comments (0)

Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink | Comments (0)

Drexel University VAP Positions

From Drexel University Thomas R. Kline School of Law:

The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

Continue reading "Drexel University VAP Positions"

Posted by Sarah Lawsky on January 19, 2022 at 03:24 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)