PrawfsBlawg

Fighting universality

Jeffrey Sutton of the Sixth Circuit has been a leading critic of universal injunctions. He returned to that in an order staying the injunction barring enforcement of Tennessee's prohibition on gender-affirming medical care. The majority held that the plaintiffs were unlikely to succeed on appeal on their equal protection or due process claims. The "fraught task of justifying" universal relief reenforced the need for the stay:

District courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A “rising chorus” suggests not. Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); see also Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017). Article III confines the “judicial power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Federal courts may not issue advisory opinions or address statutes “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). They instead must operate in a party-specific and injury-focused manner. Id.; Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.

The scope issue has arisen in other district court decisions declaring invalid these care bans. District courts have issued broad injunctions despite obvious opportunity for narrower relief. The order universally prohibiting enforcement of Kentucky's ban is in obvious trouble for this and for substantive reasons.

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

303 and SB8 (Update)

I have not gotten around to reading 303 Creative or commenting on the First Amendment analysis. I want to address the standing issues not addressed in the case but which have entered the conversation.

Liberal critics have decried this as a "fake" case because no same-sex couple asked Lorie Smith to design a web site for their wedding. The record includes a declaration about one same-sex couple that did request a wedding page, but that story appears false--one of the men is married to a woman and played no role in the case. Thus, the argument goes, Smith and 303 lacked standing, but the Court (as its liberal conservative (interesting mistake) majority is wont to do) ignored that to reach out on an issue and hand a victory to a religious-conservative cause.

Apart from my usual views about standing, this should be a non-issue. Smith brought an offensive pre-enforcement challenge, so she need not show actual violations of the law or actual enforcement of the law against her--the whole point is to be able to challenge the law without violating it or risking legal sanction. She had opened a web design business and intended to do wedding sites; state law proscribed her desired conduct (decline business from same-sex couples and announce that intent); and the state was likely to enforce the law against her if she announced and followed that practice. That should be enough for a pre-enforcement action, especially in a free speech case (where courts apply standing in a more-forgiving way). Moreover, this looser approach benefits minors challenging state prohibitions on gender-affirming care--I do not want courts hanging those cases up on "this plaintiff alleges that she wants gender-affirming care, but has not yet seen a doctor or has not yet been prescribed puberty blockers."

Some link 303 and SB8 and find political motivations in the Court's differential treatment--303 dramatically expanded a species of free-speech right through an expansive approach to pre-enforcement litigation, while the Court's restrictive approach as to SB8 eliminated all pre-enforcement challenges to an abortion restriction. But the cases are not comparable. 303's supposed standing problem involves injury--because Smith had never been asked to make a wedding web site for a same-sex couple, she incurred no injury (no genuine risk the state would enforce the law against her). The standing problem in SB8 went to traceability and redressability--the lack of public enforcement meant no public official caused that injury and the court could not enjoin anyone to stop enforcement. 303 does not reflect a distinct approach to pre-enforcement litigation. Had Colorado adopted purely private enforcement for its public-accommodations laws,* there is no reason to believe the Court would not have rejected the case for the same reasons it rejected Whole Women's Health.

[*] Perhaps Blue states seeking to mimic SB8 for liberal causes and against disfavored constitutionally protected activity should consider this issue, rather than obsessing about guns. I wonder what Jonathan Mitchell, Texas officials, and conservative commentators would say.

Update: I do not intend to minimize the issue of the false evidence. If that turns out to be the case, Smith and her lawyer should be on the hook for sanctions. It does not change the appropriateness of the case, because the case was sufficiently real and live without that further evidence.

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

Mootness and jurisdiction in Moore

I am late to the conversation about Moore v. Harper, where the Court found the case alive (over the dissent of Thomas, Alito, and Gorsuch) and (mostly) rejected the independent state legislature doctrine. Three thoughts on the jurisdictional issues. (Long post ahead).

1) I still am not sure where I land on mootness. I do not believe--contra Justice Thomas and Josh Blackman-- that the Chief fell into the writ-of-erasure fallacy. Thomas fills Part I of his dissent with (correct) descriptions of how courts enjoin actors from taking action, do not act against laws themselves, and "do not render 'judgments' that toggle statutes from 'operative' to 'inoperative' and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts."

Here is the procedural history: The state trial court held that partisan gerrymandering is a political question under the state constitution. The North Carolina Supreme Court reversed; it made three legal determinations--1) partisan gerrymandering is justiciable; 2) ISL is nonsense; and 3) the 2021 electoral maps were invalid partisan gerrymanders--and entered a judgment prohibiting use of those maps. The state legislators appealed that decision to SCOTUS. Following SCOTUS' cert grant, NCSCt affirmed the trial court's decision rejecting a remedial map. On rehearing (and following a change of court personnel), NCSCt withdrew its opinion affirming rejection of the remedial maps, "overruled" its original decision (the one sitting before SCOTUS), and dismissed the action with prejudice. But, the majority says, the state court never reinstated the original maps; its decision started everything over, allowing the NC legislature to enact whatever maps it chose. That includes enacting a new law adopting the 2021 maps.

Despite some loose language in the Chief's opinion about "presently operative statutes," I do not believe he made the mistakes Thomas accuses him of making. Rather, I think the point of departure is what happens to a preliminary injunction when the action is later dismissed. NCSCt issued an order--do not use the 2021 maps; that order was on review to SCOTUS. The court overruled the basis for that order in concluding that partisan gerrymandering is a political question and allowing the legislature to do what it wants going forward. But it did not authorize use of the 2021 maps authorized by the 2021 law.

Does that matter?

2) While I agree with Thomas' explanations for the role of courts (while remaining unsure of his conclusion), I question this:

[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded . . . must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).

That works for defensive litigation. When the state prosecutes Johnson for burning a flag, the court disregards the law of prosecution and refuses to allow it to govern the case, thereby requiring dismissal of the prosecution. It does not work for offensive pre-enforcement litigation, in which the federal plaintiff seeks to avoid the case in which the challenged law would govern, by enjoining an official from enforcing that law in the future. A federal court in an offensive action does not disregard the challenged law; it prevents future conduct by a government official with that law. And that conduct may occur outside of court--such as administering elections under particular maps.

3) Mootness aside, Moore also presented issues of SCOTUS jurisdiction under § 1257(a), which is limited to "final" judgments or decrees. Although the state court had decided that ISL does not apply (a federal issue), the case remained ongoing in state court as the parties worked to create new maps consistent with the state constitution.  Cox Broadcasting v. Cohn treats as final cases in which the "highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox identified four circumstances in which a state supreme court order is final despite ongoing state-court proceedings. The majority relied on the second category--"the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings."

This is the wrong category. Cox defined this category by citing to Radio Station WOW and Brady v. Maryland. In WOW, the state supreme court ordered the transfer of property from a federal license holder and ordered an accounting; the ongoing accounting did not affect the federal issue (interference with the license), which was tied to the transfer. In Brady, Maryland's highest court* upheld Brady's conviction but ordered a new sentencing hearing; that proceeding did not affect the federal due process rights that Brady argued were violated by a conviction without disclosure of evidence. The key to this category is that the remaining state-law proceedings do not affect the federal issue; nothing that happens eliminates the federal issue, regardless of who wins or how the state courts resolve those future issue. Brady believes his conviction violates due process; that remains alive regardless of the ultimate sentence. The radio station believes the loss of property affects its federal license; that remains alive regardless of the outcome of the accounting.

[*] Then called the Maryland Court of Appeals, changed to Maryland Supreme Court in 2023.

That is not this case. Whether the federal issue remains alive depends on what happens in state court. Imagine (as was the case when SCOTUS granted cert) ongoing state litigation to draw new maps that comply with the state constitution. If the state court approves the legislature's preferred maps, the federal issue (ISL) goes away. The state will not appeal the maps or argue they have unfettered power, because they won and so the scope of their power does not matter; the plaintiffs will appeal the maps on independent-and-adequate state constitutional grounds, but would not argue ISL because it does not help them. if the state court rejects the legislature's preferred maps, the federal issue remains alive--the state will return to NCSCt, NCSCt approves the maps, and the state challenges those maps on ISL grounds. Of course, that takes time and energy, leaving the federal issue unresolved. And that is, in fact, where the case landed: The state won on state-law grounds (partisan gerrymandering is non-justiciable) and any appeal the plaintiffs might have rests on state law, not federal law.

Thus, this case better fits the fourth category, created in Cox:

Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

That is this case. The appealing party (legislators) might prevail on nonfederal grounds (as, in fact, they did), depriving SCOTUS of the opportunity to review the federal issue; immediate reversal on the federal issue precludes further state litigation--had SCOTUS adopted ISL, the state wins without having to do anything more. And the delay or elimination of the ISL issue "seriously erode[s] federal policy" by leaving unresolved whether state legislatures can do whatever the hell they want--sure to be an issue in the coming presidential election.

I am not sure why the Chief went with # 2 rather than # 4.

Why "universality" better captures the scope-of-injunction problem

Everyone will be talking about the death(?) of affirmative action, but I do not have much legal to add to that conversation. So I am going to use and a few other posts to catch up on some things.

First up, Judge Hale of the W.D.Ky. declared invalid that state's ban on puberty blockers and cross-sex hormones for minors, joining district courts in Arkansas, Tennessee, and Florida. These cases trigger anew the scope-of-injunction problem-- and not well. Judge Hale issued what he called a "facial injunction" and said the following:

The Commonwealth suggests that any injunction should be limited in scope to cover only those plaintiffs who are already taking the drugs in question. (D.N. 47, PageID.514-15) But the fact “that some minors experiencing gender dysphoria may choose not to pursue the gender transition procedures covered by the Act and therefore would not be harmed by its enforcement” does not mean that a facial injunction would be overbroad. Brandt, 47 F.4th at 672; see id. (“The proper focus of the [facial] constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 418-19 (2015))). The Commonwealth notably “fail[s] to offer a more narrowly tailored injunction that would remedy Plaintiffs’ injuries,” id., and as Plaintiffs point out, it would be virtually impossible to fashion one. (See D.N. 52, PageID.1678-79) A facial injunction is therefore appropriate.

This is nonsense. An obvious narrower injunction remedies plaintiffs' injuries--the state cannot enforce the law to prevent these seven minors from continuing and/0r begin receiving treatments, as they choose. That remedies their injuries, regardless of what the state can or does do as to any other trans person who seeks or intends to seek treatment.  Protecting these plaintiffs need not help non-plaintiffs (compare an order compelling a school to return a book to the library). Nor is this a case in which the court cannot identify plaintiffs from those similarly situated. Because the trans kids sued on their own behalf (rather than through some organization or a doctor or a state asserting third-party or associational standing), we can easily identify who the injunction protects and who falls outside the injunction.

This and other cases illustrate why it has been a mistake to use "nationwide" to describe beyond-the-plaintiff injunctions. The problem never was confined to challenges to federal laws and regulations. States always could enact broad discriminatory laws and regulations simultaneously affecting large numbers of people, triggering the same issue of who an injunction protects after a court declares those laws constitutionally invalid. But no one would label this injunction "nationwide," while "statewide" adds another term and thus more confusion. That is why universality works best--it captures the idea of an injunction (improperly) extending to everyone who might be subject to enforcement of the challenged law, regardless of the breadth of that universe.

Florida Supreme Court displeased with federal judicial overreach

Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.

The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.

In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.

As to the district court, the state court said:

Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.

I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.

Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.

Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.

Getting particularity right, legally and practically

Chris Geidner reports on a Northern District of Florida decision declaring invalid Florida's prohibition on Medicaid coverage for puberty blockers and cross-sex hormones. Reading the order page (declaring the regs invalid; enjoining the named defendant, Jason Weida; and extending the injunction to other officers per FRCP 65(d)(2)), Chris argues that the decision is not only about the plaintiffs, because the first point applies to the law and regulations. This is wrong as a legal matter, although not as a practical matter. It also illustrates where everyone gets the universality/particularity analysis wrong.

As a legal matter, the court's order affects four named plaintiffs--two adults, two minors. That's it. Yes, the court declared Florida's Medicaid laws and regs invalid. But courts do not make legal declarations in the abstract; they declare the rights and other legal relations of any interested party. SCOTUS reaffirmed last week (as to defendants) in Haaland v. Brackeen that a DJ "conclusively resolves '‘the legal rights of the parties.’'" That is, they declare the law and regs invalid as to the plaintiffs. Declaratory judgments are no more universal than injunctions, absent certification of a 23(b)(2) civil rights class , which plaintiffs did not seek or obtain. The court's order binds the named defendant (the secretary of the state health-care agency) and everyone else who might enforce those Florida laws against them--any attempt to enforce against these four people violates the order.

This order does not prohibit anyone bound by the injunction--Weida or other officers--from enforcing these regulations against anyone other than those four plaintiffs. They could deny to John Smith Medicaid coverage of his prescription for puberty blockers or cross-sex hormones, without violating the current court order or risking contempt. But suppose they did that. Smith would join as a plaintiff in the current action and ask the court to extend the DJ and injunction to him; because he is identically situated to the original plaintiffs, the court would quickly grant the request. Or Smith would file his own lawsuit and quickly obtain a preliminary injunction on the strength of the prior decision. Either approach produces a court order that protects Smth as a named plaintiff, such that enforcement of the regs against him violates the order and risks contempt. But it requires that additional step of making Smith a party to the litigation and bringing him under the court's protection.

As a practical matter, on the other hand, Chris is correct--Florida officials will not enforce these regs against anyone; Florida Medicaid will cover these procedures for all recipients, barring a stay or appellate reversal. But the court order, as framed, does not compel that result as a matter of law. Rather, Florida officials will cover the procedures for non-parties because declining to do so wastes everyone's time and money* by triggering the further litigation--certain to succeed--described in the prior paragraph.

[*] Plaintiffs brought this action under § 1983, so § 1988(b) authorizes attorney's fees for prevailing plaintiffs. And each time a plaintiff obtains a new or extended injunction, the state will pay the fees for that process.

Does this matter, if we end up in the same place? In my view yes, because process matters.

The inanity of "Debate Me"

Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."

As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:

One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.

This is nonsense.

First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.

Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.

Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.

Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.

Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*

[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?

Trump is not a legislator engaged in legislative speech or debate

Republican Rep. Thomas Massie decided that the best way to support Donald Trump was to tweet that "under the Constitution, no member of Congress can be prosecuted for reading aloud on the floor any of the documents Trump allegedly has copies of." Naturally, people jumped on this. So let's be clear:

First, he is correct. The leading Speech or Debate precedent arises from a Senator and his aide reading portions of the Pentagon Papers at a subcommittee meeting and entering 47 volumes into the public record. The Court said "[w]e have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting." That principle applies, even more so, to events on the House floor.

Second, what is Massie's point? The Speech or Debate Clause speaks of Senators and Gravel extends protection to senatorial aides; Trump is neither. And Gravel held that immunity did not protect possession publication of the papers outside of the legislative process--such as in bathrooms at Mar-a-Lago or conversations with reporters in New Jersey. So whatever Massie can do on the House floor is irrelevant to whether Donald Trump mishandled classified documents.

Maybe Massie knows that. He definitely knows that Trump supports do not know that. And that is the point.

Haaland: Standing, or why didn't the entire case have to come through state court

Haaland v. Brackeen rejected (7-2) a constitutional challenge to the Indian Child Welfare Act. The relevant plaintiffs were the State of Texas and three sets of adoptive, foster, or birth parents; the defendants were the Secretary of the Interior and various federal officials; the lawsuit was filed in federal district court. The Court rejected the challenge to the placement-preference provision for lack of standing, finding that an injunction or DJ as to the validity of that provision would not redress the plaintiffs' injuries; any injuries arose from the action of state judges applying ICWA and state officials enforce state-court orders, none of whom were parties to the case and none of whom were bound by any judgment. That the state officials likely would follow the federal court's opinion does not establish standing; in  music to my ears, Justice Barrett wrote "[i]t is a federal court’s judgment, not its opinion, that remedies an injury."

But the Court reached, and rejected, the merits of challenges to the entire statute under the Indian Commerce Clause and under Tenth Amendment anticommandeering to the requirements in involuntary proceedings; to placement preferences; and to certain record-keeping requirements. At least as to the latter two, the Court relied on anticommandeering's unique non-application to state courts, which must apply federal law in all cases before it as the supreme law of the land.

What I do not understand is how these plaintiffs had standing to bring a federal suit in federal district court to challenge any of these provisions on any grounds. All claims suffer the same redressability problems--the plaintiffs suffer an injury when non-party state judges apply ICWA to decide cases and non-party state officials enforce those judgments. So it seems to me this entire case should have had to come through state court--a state family court decides an adoption/placement case applying ICWA; the parents (and the State, if so inclined) argue that ICWA is constitutionally invalid and cannot be applied; the loser(s) appeal through the state system and ultimately to SCOTUS, which decides these constitutional issues in the course of reviewing a state judgment applying that law.

§ 1983 enforcement survives, for the moment

The Court decided HHC v. Talevski Thursday, seven months to the day after argument. Here is my SCOTUSBlog analysis. The Court held 7-2 (by Jackson) that Spending Clause enactments are enforceable through § 1983 and that Federal Nursing Home Reform Act ("FNHRA") can be enforced through § 1983. I suppose I understand the delay. Thomas wrote a 36-page dissent tracing the history and evolution of the Spending Clause to argue that spending enactments do not "secure" legal statutory rights, only contractual rights, otherwise such rights violate anti-commandeering. Alito (joined by Thomas) dissented to argue that FNHRA is not enforceable because Congress intended to preclude § 1983 enforcement. Gorsuch and Barrett (with the Chief) joined the majority but added short concurrences.

The title of the posts suggests the reprieve to private enforcement may be temporary. Five justices wrote various things suggesting a narrow approach to private enforcement of Spending Clause laws, if not an intent to eliminate it. Thomas made his position clear. Gorsuch's one-paragraph concurrence spoke of "issues lurking" that petitioners failed to develop--namely, the anti-commandeering concerns Thomas discussed. In other words, Gorsuch might agree with Thomas in a different-and-better-litigated case. Barrett and Roberts went out of their way to remind courts to "tread carefully before concluding that Spending Clause statutes may be enforced through §1983." And Alito believes that a combination of state law proceedings and internal grievances sufficient to preclude federal litigation.

Policy and Identity

In an article on cancel culture in the Journal of Free Speech Law, Thomas Kelly illustrates cancel culture by arguing that a

"relevant test for today’s college students would be the extent to which they are willing to tolerate speakers who earnestly argue for propositions such as the following:

1. (1)  That people who are currently in the United States illegally should be deported to their country of origin.

2. (2)  That affirmative action should be abolished because it unjustly discriminates against whites and Asians.

3. (3)  That for any adult person, having been born biologically female is both a necessary and sufficient condition for being a woman.

4. (4)  That the fact that different racial groups are incarcerated at different rates does not primarily reflect racial injustice in the criminal justice system but rather that the groups commit serious crimes at different rates, something that is not itself due to racial injustice.

According to Kelly, these reflect four contestable questions. And college students' intolerance for their expression reflects cancel culture--disrespect for free speech and intolerance for competing ideas. Except one of these things is not like the other. Numbers 1, 2, and 4 involve questions of public policy--how government and government institutions should address particular problems (unlawful entry to the country, crime, opportunities to participate in institutions), the best policy choices, and what those choices tell us about those institutions. Number 3 involves a pure question of identity--it denies that trans people exist. A person's existence should not be debatable and should not be a question of policy.

I do not suggest that # 3 enjoys less constitutional protection or that a speaker should be barred from campus for expressing # 3. I do suggest that debating identity cannot be conflated with debating immigration policy or even debating the policy consequences of identity, such as athletic participation. The constant failure to distinguish these--especially as to LGBTQ+ people--is telling.

Kagan on Velazquez and Bacon (and Lain on Cortada)

 Justice Kagan devotes the final ten pages of her Andy Warhol Foundation v. Goldsmith dissent (begin at p. 25) to illustrating the "dramatic" effects of the majority's (narrow?) approach to the first fair use factor. Using examples in literature, music, and art, she discusses historic examples of work building on prior work; her premise is that that the majority's approach would not see the later work as transformative and thus as fair use, because both create something to be sold.

On pp. 32-34, she compares Velazquez's portrait of Pope Innocent X with Bacon's "Study After Velazque's Portrait of Pope Innocent X" (commonly known as "Screaming Pope").

Miami artist Xavier Cortada's May It Please the Court depicts ten SCOTUS cases originating in Florida; the paintings hang on the walls of FIU College of Law. Here is the piece for Proffitt v. Florida, which riffed on Bacon's painting:

In Painting Constitutional Law (edited with my colleague Matthew Mirow), Corinna Lain (Richmond) wrote a wonderful essay on Proffitt and how Bacon's painting and Cortada's painting explore "pain, imprisonment, isolation and obfuscation," which constitute "larger themes of the death penalty as well."

If Kagan is right that Bacon's painting cannot happen, then neither can this.

 

 

Challenging private enforcement

Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.

B8 and other exclusive-private-enforcement (or "vigilante federalism") draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to "act at their peril" as a condition of litigating their rights. And they force rights-holders to litigate in state court.

The second objection arises from two limits on federal jurisdiction--the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder's federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing "any person" to sue cannot be in federal court even absent the WPC, because a random "any person" plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).

Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.

This does not address the first objection--rights-holders should not be forced into defensive litigation. But the question is what is the real objection?

More on write-in ballots

Building on Gerard's post, I wrote this in 2016 and this in 2014 about limitations on write-in voting under Florida law (the later post has some useful reader comments addressing Gerard's question). F0rmer Florida Rep. Ileana Ros-Lehtinen wanted to write-in Jeb Bush for president in 2016; I wanted to avoid voting for Ros-Lehtinen in 2014. Florida law requires "write-in candidates" to qualify in advance (so they are not really write-in candidates in the sense Gerard describes). Florida excludes uncontested elections from the ballot because the voter has no choice but the unopposed candidate. Both reflect a prohibition on "let me write in a random name on election day."

Roberts to Durbin: Drop Dead

Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."

Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.

• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to "invite" Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.

• I do not know how the Court would react if Congress tried to bring back some control--for example, expanding the Court's mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?

• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS's special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts' opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).

• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton's assumed that Congress would destroy a Chief Justice and Court that rejected Congress' constitutional role in this way--Congress acted as an institution to check other institutions. But the introduction of organized--and ideological--parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses' actions as the problem to be investigated and checked; they see their Senate colleagues' actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

Viewpoint discrimination in synagogue protests (Updated)

I have written the past couple years about ongoing anti-Israel (drifting many descending into blatant anti-Semitic) protests outside an Ann Arbor synagogue. Several congregation members brought a tort claim against the protesters. The claim (rightfully) failed in the Sixth Circuit. Ronald Lewin, a veteran religious-liberty litigator, sought cert, arguing that protest (at least the sort of obnoxious protests at issue here) should be prohibited outside houses of worship, as obnoxious protests are prohibited outside reproductive-health facilities. SCOTUS denied cert.

But then we have this story-- a gay Orthodox Jew has protested outside a Florida Orthodox shul every Shabbat and holy day, after the rabbi asked him and husband not to return because homosexuality violates Jewish law. I cannot identify a more appropriate place for this protest, showing the problem with Lewin's categorical bar. And if this protest is ok, we encounter obvious and egregious content (if not viewpoint) discrimination.

Update: An Ann Arbor resident suggests I understated the anti-Semitic nature of some of the protesters and signs (such as "Jewish power corrupts"), so I amended my language accordingly.

FIRE adopts preferred first speaker

According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:

Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.

Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.

There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.

The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.

Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.

I see several problems with that focus and that conclusion.

 

1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.

Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech,  it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.

2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.

Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.

Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.

3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.

Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.

4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J.  article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.

5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.

6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a  "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and  uttering their message more forcefully.

7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.

 

I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.

Preemption Procedure: A Comment on the Shugerman-Kovarsky Debate in People v. Trump

Is People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct.) preempted? This question has generated much debate, but is unlikely derail the ongoing state prosecution, at least procedurally.

The defendant is charged with 34 counts of falsifying business records. The offense is raised to the level of a felony, the indictment charges, because the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The issue is that underlying facts may involve a federal election offense. Prof. Jed Shugerman has pointed out that the federal election law has an express preemption provision, and New York State election law has a separate provision acknowledging the primacy of federal law. Accordingly, there is a potential preemption problem which, according to Prof. Shugerman, might mean that “the case is headed to federal court for a year.” Prof. Lee Kovarsky responded with a persuasive argument that states can sometimes use even preempted federal offenses for their own purposes. No one questions, for example, that a New York attorney convicted of an offense within exclusive federal jurisdiction could nevertheless be disbarred. Prof. Kovarsky writes: “To my knowledge, in no case has a court even suggested that a federal crime can't be an element of a different state offense just because the federal crime falls within the scope of preemptive federal authority.” This seems a hard question. If I were in the NY Co. DA's Office, I would strive mightily to elide it and find safe, state crime.

Nevertheless, whatever the ultimate merits, I do not see how the defendant gets an injunction. True, earlier proceedings related to this very matter, namely, a New York grand jury subpoena, were subject to a prolonged stay as the Supreme Court considered the case. On the merits, the Court ultimately allowed the subpoena. Critically, the stay was based on a circumstance no longer present: Trump was then President. The Court explained: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties. . . . federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.” Trump v. Vance, 140 S. Ct. 2412, 2428–29 (2020). Vance is not precedent for an injunction to protect a private citizen. There was also the stay of enforcement of a House of Representatives subpoena. But there, the question was not preemption, but “whether the subpoenas exceed the authority of the House under the Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020).

Instead, the case now seemingly presents an ordinary claim of preemption in a state prosecution of a private citizen. In that context, 28 U.S.C. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The possibility that a state prosecution is preempted, standing alone, is not a ticket to federal court:

[A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court.

Bess v. Spitzer, 459 F. Supp. 2d 191, 201–02 (E.D.N.Y. 2006), as amended (Jan. 30, 2007) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149–50 (1988)). 

Another judicially recognized exception exists where the defendant proves that a prosecution was “brought in bad faith or is only one of a series of repeated prosecutions,” or that there is otherwise “irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith.” Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999) (citations omitted). See also Jordan v. Bailey, 570 F. App'x 42, 44 (2d Cir. 2014). “Bad faith” in in this context means “without hope of obtaining a valid conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).

No exception seems to exist. There appears to be no act of Congress providing for federal judicial intervention, and no past or present litigation of these facts for a federal court to protect. Although there is debate about what is required to convict of the offense of falsifying business records, and even more mystery about what the People plan to prove, there is no indication that the prosecution has no chance of success, or is the latest in a series of failed, harassing prosecutions. Accordingly, any preemption issue should be addressed “by the state court.” State rulings would be "subject, of course, to review by . . . [the Supreme] Court or, in a proper case, on federal habeas corpus." 401 U.S. at 85.

One circumstance which neither constitutes bad faith nor tends to support a separate defense is the selective prosecution argument which may be in the offing. Federal constitutional law precedents allow selection of prominent individuals for prosecution. As Wesley Snipes learned to his dismay in a tax case, “[s]ince the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media.” United States v. Snipes, No. 5:06-CR-22-OC-10GRJ, 2007 WL 2572198, at *3 (M.D. Fla. Sept. 5, 2007) (quoting United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978)). See also United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993) (“For law enforcement officers to choose to investigate prominent offenders is nothing unusual or evil.”)

The limited New York authority on prosecuting celebrities I could find is to the same effect: “assuming the decision to prosecute was based on the fact that the defendants were prominent and newsworthy, this is also not an impermissible basis for selection . . . Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that [others] are not above the law.” People v. DiLorenzo, 153 Misc. 2d 1021, 1029–30, 585 N.Y.S.2d 670, 675 (Crim. Ct. Bx. Co.1992) (citing People v. Barnwell, 143 Misc.2d 922, 541 N.Y.S.2d 664 (Crim. Ct. N.Y. Co. 1989)). There is also one lower court case more or less endorsing the the proposition that it is permissible to target individuals for enforcement because they are suspected of other crimes. See People v. Mantel, 88 Misc. 2d 439, 443, 388 N.Y.S.2d 565, 569 (Crim. Ct. N.Y. Co. 1976) (citing United States v. Sacco, 428 F.2d 264, 271 (9th Cir. 1970) (“selection of this defendant for intensive investigation was based on his suspected role in organized crime”) Stuart Green has written thoughtfully about whether prosecuting celebrities and the prominent is consistent with criminal law principles, but the doctrine seems to allow it. Stuart P. Green, Uncovering the Cover-Up Crimes, 42 Am. Crim. L. Rev. 9, 42 (2005).

If the defendant could show that other, similarly-situated offenders who were members of different political parties were not prosecuted by the same office, then that would raise a substantial issue. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997) (citing, inter alia, United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). But such claims have historically proved difficult to establish. United States v. Lazzaro, No. 21-CR-0173 (PJS/DTS), 2022 WL 16948157 (D. Minn. Nov. 15, 2022); United States v. Woods, 319 F. Supp. 3d 1124, 1141 (W.D. Ark. 2018), aff'd sub nom. United States v. Paris, 954 F.3d 1069 (8th Cir. 2020), and aff'd, 978 F.3d 554 (8th Cir. 2020); United States v. Young, 231 F. Supp. 3d 33, 43 (M.D. La. 2017); United States v. Cameron, 658 F. Supp. 2d 241, 243 (D. Me. 2009).

District Court gets defensive/offensive right--standing still sucks

In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.

The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.

How else are you supposed to do it?

Journalist Jason Garcia is upset that the Speaker of the Florida House acknowledged that the bill altering state defamation law is "intentionally unconstitutional" and designed to trigger litigation and provide SCOTUS an opportunity to overrule New York Times and other defamation precedent.

Put aside that "intentionally unconstitutional" should mean, at most, "unconstitutional as judicial precedent understands the First Amendment" and that a legislature can hold and act on competing constitutional understandings. But even at the most judicial supremacist, what else is a legislature supposed to do if it believes judicial precedent wrong and wants to challenge (and change) it? If a state cannot do what Florida is trying here,  judicial supremacy means the popular branches lack the power to disagree with the judicial understanding or to create mechanisms to express that disagreement and urge the court to change path. The Court's word is not only final but unchanging and irrevocable.

It's all about the precedent

Jonathan Adler comments on universal vacatur in the student loan case. He gets at the fundamental (and overlooked) insight in this debate: The prospective non-party effects of a decision arise from precedent, never from the judgment. SCOTUS does not issue (or affirm) universal injunctions; its opinion affirming a particularized injunction in Case₁ binds other courts in future cases involving similar issues. The DC Circuit does not issue universal judgments; its opinion in Case₁ binds the circuit in future cases involving similar issues (where, Adler argues, Congress gives the D.C. Circuit exclusive jurisdiction). To the extent that disables regional circuits from imposing broader consequences, Congress chose that effect by creating a regional and hierarchical judiciary.

Departmentalism (not mentioned in the arguments or in Adler's piece) makes this compliance practical rather than legal. The executive follows precedent (at least within the circuit) because it chooses to do so, knowing it will otherwise lose when non-compliance returns to the D.C. Circuit.

Florida redefines defamation law

Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.

Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.

Here are the bill's lowlights, all of which should raise serious First Amendment problems.

• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.

• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).

• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops)  do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.

• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.

• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.

• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.

• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.

As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?

Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.

Making a hash of pre-enforcement offensive litigation

In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.

To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.

Legal Principles and Findings:

    • No public enforcement of SB8.

    • The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.

    • The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.

    • HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.

    • Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.

    • The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.

Conclusions:

    • Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.

    • Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.

Why this is all such utter nonsense:

    • Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.

    • Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.

    • The court drops the following footnote in dismissing the claims against Paxton:

While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal. 

The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).

    • If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.

    • Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.

    • The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.

How the case should have been resolved:

    • The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.

    • If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.

    • Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.

Pretty bad all around.

Visitors sue Air and Space Museum, encounter Fed Courts doctrine?

Visitors to the Air and Space Museum sued the museum, agency, and several Doe officers, alleging that the officers forced them to remove hats with the logo "Rosary Pro Life" while visiting the museum; they allege free speech, equal protection, and RFRA violations and seek damages and injunctive relief. Eugene Volokh reports that the Museum admits this happened and that it should not have. He also argues that the free speech analysis is obvious here--the museum is a non-public forum in which officials can make reasonable content-based distinctions but not viewpoint-based distinctions (such as not promoting "equality").

But I am not sure we reach those merits:

    • Plaintiffs should lack standing for an injunction. The plaintiffs cannot show this will happen again in the immediate future. Not only is it unlikely they can show concrete plans to return to the museum. And they cannot show they will suffer this injury if they do return, given the museum's response and the seeming randomness of the officers' conduct.

    • This is an extension of Bivens--the Court has never allowed a free-speech claim. And the usual special factors arise--Congress should create causes of action and has not done so and, post-Egbert, agency disciplinary-complaint procedures offer sufficient mechanism for deterring misconduct. This is not a national-security case so that over-arching factor is absent. But lower courts emphasize the new single question of "Isn't Congress is better suited to balancing the costs and benefits of causes of action?" (to which the answer is always "yes") to reject actions outside national security.

    • RFRA provides a cause of action for suits against government officials, so plaintiffs do not need Bivens for their religion claims. But plaintiffs must show this was religious rather than speech discrimination--does the word Rosary on the hats mean the officers knew the message was religious and forced them to remove the hats because of that religious (as opposed to political or ideological) message?

    • If this is religious discrimination and/or they convince the Court that no special factors counsel hesitation, they must overcome qualified immunity. There is almost certainly no case law about making someone remove a hat because of its religious or political message in a museum. The court must fall back on general First Amendment principles, the sort of high-generality analysis courts usually reject. It might be interesting to see how the court uses the museum's mea culpa--does that show that it was clearly established that officers could not make visitors remove hats and other clothing because of the message?

More on Warren-DeSantis and the court's ill-advised analysis

I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.

That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.

I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.

The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.

Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.

This is wrong.  The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.

But those words provide Warren's first line of attack in the press and in politics.

Jack Phillips loses on defense, no one cares

Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.

Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*

[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.

Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.

On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.

Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)

The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.

[*] Really the limits of § 1983, but that ship sailed.

This is a bizarre decision.

• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.

• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.

• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.

• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."

No state standing in SB8 suit

Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.

This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.

Uvalde lawsuit

Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.

As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.

As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.

Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.

Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.

I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.

Effective v. Enforceable

Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:

The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.

The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).

Georgia trial court rejects judicial departmentalism

A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.

Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a  law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.

Here is the topper:

What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.

If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.

One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.

Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:

    • Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.

    • How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.

We are all judicial supremacists now

Jacob Sollum at Reason does not think much of New York and New Jersey exercising judicial departmentalism on gun regulation by enacting laws that likely (and in the view of one district judge, definitely) do not comply with Bruen. Note the language Sollum uses--"defying the SCOTUS decision," failing to "respect the constitutional right," "pretending to comply with the Second Amendment." As if the Second Amendment and what SCOTUS says about the Second Amendment are co-extensive.  I thought we liked  allowing the judicial branches to exercise their own constitutional ideas, even if they depart from the Court's ideas. And that they lose before a district judge--bound by SCOTUS precedent in a way the NY and NJ legislatures are not--it is not because they were trying to "fool[]" anyone.

This piece could have been written by an abortion-rights supporter about Idaho, Missouri, and Texas anytime in the 45+ years prior to June 2022. I guess not.

Trump v. CNN

Donald Trump has sued CNN for reporting and op-eds comparing him to Hitler and using the term "Big Lie;" he seeks $ 475 million in damages.

This lawsuit demonstrates something I have argued for awhile--the call to overrule New York Times as shorthand for rejecting or limiting actual malice is a red herring, distracting from a broader attack on political speech, criticism of government and other influential persons, and the First Amendment's broader speech-protective superstructure. A host of First Amendment principles destroy this case, regardless of actual malice. Everything the suit complains about is political speech and criticism, opinion, and rhetorical hyperbole--all at the core of First Amendment protections; it points to no provable and verifiable statements of fact that can form a basis for defamation liability. The suit would overrule the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It is difficult to imagine a clearer example of caustic and sharp rhetorical hyperbole than comparing a political leader to Hitler.

The suit also suggests that because CNN purports to be a news organization, it enjoys less First Amendment protection--including the loss of protections of actual malice--than other speakers. It argues that actual-malice protection should not apply

where the media defendant is not publishing statements to foster debate, critical thinking, or the 'unfettered interchange of ideas' but rather seeks to participate in the political arena by offering propaganda.

This is insane on several levels. It suggests there is something called "propaganda" entitled to less protection; it allows government to define and draw the line between that and fostering debate; and it insists there is a distinct category called "news" (never defined) and limits certain media speakers to that category. The irony of this media/other speaker distinction is that it turns NYT on its head. The Court has long debated but never resolved whether NYT applies to nonmedia defendants. Trump's suit goes the other way--media defendants enjoy less protection than other speakers.

This is an absurd suit that should go down in flames at the 12(b)(6) stage and should result in sanctions for the ethically challenged lawyers who filed this. In addition, Florida's anti-SLAPP statute could rear its head. The statutory dispositive motion does not apply in federal court. But Florida's statute contains a unique fee-shifting provision--fees are available for any action that is "without merit," not limited to actions  rejected under the special anti-SLAPP motion (as in most anti-SLAPP laws). One judge in the Southern District of Florida has applied the statutory provision (which should apply in federal court) to award fees where the action was dismissed on an ordinary 12(b)(6). Trump thus could be on the hook for attorney's fees for this abuse of process.

Maybe Dobbs is different

During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."

But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T₁ can be punished or sanctioned at T₃ after precedent changes and that conduct loses its constitutional protection at T₂. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.

If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.

I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.

The wrong abstention

The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.

I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.

Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.

The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.

But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.

Morissette, J., dissenting

A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.

Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."

In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?

The politics of abortion (Update)

Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.

[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.

I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?

So what do Graham and Senate Republicans hope to get out of this?

    1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.

    2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.

    3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."

[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.

    4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.

    5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.

Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and  hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."

Judicial departmentalism in action

Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:

• Pre-2018: State regulations prevent trans people from changing markers.

• 2018: Federal court declares reg violates equal protection

• 2020: State enacts legislation codifying regulation

• 2021: Federal court declares legislation violates equal protection

• 2022: Court orders state to pay $300,000 in attorney's fees.

Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.

It is unwieldy. But it is how the system should work.

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Standing sucks up more stuff

The district court dismissed the lawsuit by three Republican House members challenging security screening (and the fines imposed for ignoring the screening) in the House building following January 6. The court held, properly, that establishing the screening mechanisms and sanctioning members for violating those mechanisms were protected from judicial review by the Speech or Debate Clause--they involve internal rules governing how the legislative body operates and conducts its business.

But the court based the dismissal on lack of standing--plaintiffs lacked standing because the challenged conduct (and the actors who engage in that conduct) cannot be questioned in any other place. But that is not how the Clause is understood. That the challenged conduct is legislative means it cannot form the basis for constitutional challenge in court; it does not mean the plaintiffs did not suffer an injury fairly traceable to some conduct.

It remains stunning how every constitutional and procedural issue gets sucked into the standing/jurisdictional framing.

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

California goes full SB8 on firearms, sort of

SB 1327, signed by Gov. Newsom on Friday, prohibits distribution and sale of assault weapons, .50 BMG rifles, or unserialized firearms, as well as selling to people under 21. The bill prohibits public enforcement of these provisions and creates a private right of action that copies the elements of SB8--$10,000 statutory damages per firearm, injunctive relief, and attorneys fees; no fees for defendants; limited affirmative defenses.

California got the procedure right (much to my surprise), in making private enforcement exclusive and prohibiting public enforcement. The conversation around SB8 and copycats has focused on private enforcement as this powerful weapon ("bounty hunters" makes a great headline and political talking point, as someone pointed out on a listserv), as if private enforcement alone creates the bind for rights-holder that SB8 did. Private enforcement must be exclusive, otherwise rights-holders can pursue offensive pre-enforcement litigation against the responsible executive.

I am not sure how much effect this will have, beyond symbolism ("the left can play the same games as the right"). The law may not be constitutionally invalid--do the recent cases mean that states cannot prohibit any firearms, regardless of nature? The law certainly is not blatantly unconstitutional (if there is such a concept); no binding SCOTUS precedent establishes that the sale and manufacture of assault weapons or unserialized handguns is protected by the Second Amendment. The law does not target possession of assault weapons or subject owners to private suits for possessing absent an intent to give the weapon to someone else. The prohibited weapons are less pervasive and less at the core of "Second Amendment activity" than post-six-week abortions; the latter represented 90 % of Texas abortions, whereeas assault weapons are already prohibited by California law. Suits under this law are less likely to substantially disrupt ongoing seller or buyer activity.

To the extent sellers believe the First Amendment protects unregulated purchases (and thus sales) of assault weapons, this law may not hamstring them in challenging it. A seller could challenge the criminal prohibition in a pre-enforcement action against the government, obtain (it hopes) favorable precedent, then use that precedent to defend civil suits under the new law (an invalid ban would be as violative of the Second Amendment regardless of enforcement system). Ultimately, this looks less like SB8 and more like California's consumer-protection scheme pre-2004, in which laws prohibiting misleading statements could be enforced by the government or by "any person" civil litigation, leaving possible pre-enforcement offensive litigation in place.

I think the real "lefty" answer to SB8 is the one Rocky and I hypothesized--a prohibition on racist speech, exclusively privately enforced. That would reach a wide swath of likely protected activity in the way SB8 did, without allowing for pre-enforcement judicial review.

Immediate Update: Ilya Somin has thoughts. He argues the scope of potential defendants is quite broad and thus the law could have more effect than I suggest.  And he continues to urge that offensive litigation should be available against the sheriff who would enforce any judgment (we argued this fails for the same reason as the clerks-and-judges theory). Although to the extent one of the conservative justices would abandon procedural principle when the threatened substantive right is one they like, Ilya provides them the path.*

[*] To be clear, I am not accusing Ilya of inconsistency--he made the same argument about SB8 as about SB 1327. I am suggesting one of the WWH majority could use this to put a fig leaf over inconsistency

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here. 

 

 

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

No standing and no Injunction in Florida CRT suit

From the lawsuit filed in April challenging Florida's HB 7, the anti-CRT law: The district court denied a preliminary injunction, finding that plaintiffs failed to show standing for different reasons:

• Public-school teachers cannot show traceability or redressability as to the Board of Education because it has not done anything to enforce the law. Any restrictions on what they can teach come from the local school board and the school, acting out of the threat of loss of funds. The court refused to find standing to enjoin the Board (from enacting regulations and stripping funds) based on the layers of inferences of from the threat of funds to what school boards and schools might do. I see the point--the Board does not create the constitutionally violative rules. but it allows standing to ignore common sense and economics and force plaintiffs to wait longer to litigate their rights.

• The rising kindergartner has not show injury-in-fact because he cannot show what material he will not be taught in kindergarten because of this law, as opposed to in an AP History class he may take 8-10 years from now. And although the court does not address it, this claim should fail on traceability and redressability for the same reason the teachers' claims fail--the removal of any material was by the school or a teacher, not the Board, and the court already said school action based on Board threats is insufficient for a suit against the Board.

• The private DEI consultant has not shown an injury at the first step of third-party standing on behalf of his customers.

• The court reserved ruling as to the final plaintiff, a prof at Central Florida.

• The court concluded the opinion--in which he never touched the First Amendment merits--with a long block-quote from Barnette, preceded by this: "For those who applaud state suppression of ideas that the government finds displeasing--such as the 1619 Project--this Court offers the following observation." I am as forgiving of judicial tangents as anyone, but this is inappropriate and absurd. If we call out judges such as Justin Walker and James Ho for including gratuitous culture-war rants in their opinions, we should call out Mark Walker for including rants with which I might agree.