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Saturday, November 16, 2019

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

• The Tenth Circuit held that officials of the University of New Mexico School of Medicine enjoyed qualified immunity from First Amendment claims arising from the school sanctioning a med student for "unprofessional" speech, because it was not clearly established that a professional school could not punish speech in the name of instilling professional values.

The court jumped to the second, "clearly established" prong of the qualified-immunity analysis, as it has discretion to do; but the court went beyond that, insisting that merits-first should be the exception, because of constitutional avoidance. But this seems problematic, generally and in this case. Generally, it will produce fewer opportunities for courts to develop constitutional law. In this case, skipping the merits no sense because the plaintiff also sought injunctive and declaratory relief, which is not subject to immunity and requires consideration of the constitutional merits. The court never explains what happened to those claims or why they do not compel the court to reach the constitutional question.

The case also reveals how courts, despite rhetoric to the contrary, demand factual overlap. As the court put it, the plaintiff “failed to identify a case where [a medical school administrator] acting under similar circumstances as [the defendants in this case] was held to have violated the [First] Amendment.” A" patchwork of cases connected by broad legal principles" is insufficient.

Also, note that the court ignored one factor weighing in favor of reaching the merits--the presence of amicus briefs from several First Amendment advocacy organizations, as well as Eugene Volokh. When the Third Circuit reached the merits and recognized a First Amendment right-to-record (while finding the right not clearly established at the time), it pointed to the presence of amici and the quality of the briefing in the case.

• The Fifth Circuit continues to be the only circuit to categorically reject state-created danger as a basis for substantive due process liability. The case involves  the mishandling of a 911 call--including waiting for officers to volunteer to respond and later refusing to help family members enter the victim's house unless they confirmed with local prisons and hospitals that she was not there, as well as the responding officers stopping at 7-Eleven before proceeding to the scene.

More standing/merits overlap (or confusion) in this Sixth Circuit affirmance of denial of a preliminary injunction. Plaintiffs are parents of a child with autism, who placed him in a private therapy program instead of public school; although he improved in private therapy, the state convicted the parents of truancy. They then enrolled him in a state-approved private school. But they are concerned that he may regress, that they may want to pull him out, and that they again will be prosecuted for truancy. So they sued for an injunction. The court of appeals affirmed the denial, agreeing that the parents could not show irreparable harm without the injunction because the hypothetical threat of enforcement was not "certain and immediate," but "speculative or theoretical," dependent on ifs (if the son regresses, if they pull him out of the current school, if they cannot find a new option, if the state decides to prosecute).

Assuming the court is correct about imminence, why is that not a standing problem--the family is not suffering a concrete and particularized injury because they have not shown "an intention to engage in a course of conduct" proscribed by statute for which there is a credible threat of prosecution. The course of conduct (pulling him entirely out of school) may not occur, depending on too many variables. But that seems to be precisely what the injury-in-fact prong of standing asks. The answer should not be different at the standing analysis than at the injunction analysis--if the injury is sufficiently imminent to establish standing, it should be sufficiently imminent to satisfy the irreparable harm requirement. This is why irreparable harm is often assumed in constitutional cases--the violation of rights (or threatened violation, sufficient for standing) qualifies as irreparable harm unless the injunction issues.

As a normative matter, it is interesting to consider whether the plaintiffs might have fared better had they sought a declaratory judgment rather than an injunction. They would not have had to show irreparable injury (although the court almost certainly would have moved this immediacy analysis up to standing and dumped the case on that basis--see above). This illustrates the type of case Sam Bray argues is appropriate for a declaratory judgment--the plaintiffs need an explication of rights but do not need judicial oversight or supervision going forward. The plaintiffs wanted and needed  guidance and certainty--to know where they stood and what they could (and could not) do as they tried to create the best opportunities for their son; they did not need a court order prohibiting government officials from acting at this time.

Posted by Howard Wasserman on November 16, 2019 at 03:25 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Interesting. Concerning the case of free speech of that student ( in the tenth circuit) just worth to note:

The core of the lack of clearly established law, are two:

First, the distinction between free speech in campus and internet Vs. in online or social media ( and from home also). For the latter, the court has concluded, that there is no clearly established right or law/case. I quote:

" The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that... does not occur on school grounds or at a school-sponsored event.”). Additionally, none of the Court’s cases involved online speech. See Aplt. Opening Br. at 21 (conceding the Court has not “specifically addressed the scope of the [F]irst [A]mendment rights of a university
student’s off-campus social media speech”). The Court held in 1997 that the First Amendment applied to the Internet, see Reno v. ACLU, 521 U.S. 844, 849 (1997), but it only recently addressed its application to social media, see Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). Unsurprisingly, “[a] growing body of scholarship [has] call[ed] for the Supreme Court to take a case applying its school speech doctrine to a student’s online speech.” Elizabeth Nicoll, University Student Speech and the Internet: A Clusterf***, 47 NEW ENG. L. REV. 397, 397 (2012). But as the Court has not taken such a case, “First Amendment doctrine” “[a]t the intersection of university speech and social media” remains “unsettled.” Yeasin v. Durham, 719 F. App’x 844, 852 (10th Cir. 2018) (concluding the law was not clearly. established for a free speech claim by a student expelled for off-campus, online speech that violated the university’s code of conduct and sexual-harassment policy)."


" neither decision would have sent sufficiently clear signals to reasonable medical school administrators that sanctioning a student's off - campus, online speech for the purpose of instilling professional norms is unconstitutional."

So, online or social media. And, narrowly tailored restriction of free speech, for professional education.What has been shown, by the amicus brief and the plaintiff, is indeed patchwork ( and too broad and general), but, not clearly established according to the court.

So, one may disagree or agree, yet, clear and coherent.


Posted by: El roam | Nov 16, 2019 6:05:01 PM

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