Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 20, 2021

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

Pleasant Grove

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)

 

Posted by Rick Garnett on July 20, 2021 at 11:47 AM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

More on Fuck Biden signs in NJ (Updated)

The worst thing happened to Roselle Park (NJ) in its efforts to get homeowner Andrea Dick to remove "Fuck Biden" signs from her yard--the story is in today's New York Times (including comments from Thomas Healy of Seton Hall). This will end badly for the township and a smart lawyer for the municipality would cut bait now.

A lot of bad stuff can happen in municipal court--the matters are small, many people appear pro se, and the judging and lawyering may not be top-tier. But the key is that no one knows about it, allowing some absurd cases and outcomes to fly under the radar. But this has become a national (or at least regional) story. Every First Amendment lawyer in and around New Jersey is about to come out of the woodwork offering to represent Dick* And when a knowledgeable lawyer gets this case before a knowledgeable court, the outcome will be quick and obvious.

[*] I am surprised the ACLU has not entered the mix. Facing continued suggestions that the organization is more committed to liberal causes than to free speech, this would be an easy win in support of a Trump supporter.

Of course, getting Dick out from under the fines is the beginning. The next step is a § 1983 action against the township, the code enforcement officer who issued the citation, and perhaps the mayor (the Times story suggests that the mayor pushed the enforcement officer to issue the citation), which will cost the township some real money. Politics aside, the municipal attorney should recognize this.

Update: The ACLU of New Jersey has taken the case.

Posted by Howard Wasserman on July 20, 2021 at 10:36 AM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 19, 2021

Bernstein on sport and speech

David Bernstein argues in Persuasion that sporting bodies should allow athletes to speak in non-disruptive ways around events, targeting the IOC, UEFA, and the NFL and considering players taking a knee, wearing expressive items on their uniforms, etc. Here is his key point:

No matter how much professional sports and sports fans may wish to separate sports from politics, it cannot be done. The debate re-emerges again and again with no resolution in sight, and you can bet it will kick into gear once the medal ceremonies start at the Tokyo Olympics.

So, rather than attempting to extricate itself from politics, sports should adopt a laissez-faire posture: Let everyone—owners, players, and fans—make political statements at sports matches.

I would supplement with the point I made last week after English fans heaped racist abuse on the three Black players who missed penalty kicks in the Euro finals: If fans are going to respond to sports in political terms, the athletes should be able to express themselves in political terms in the first place.

Posted by Howard Wasserman on July 19, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (2)

Saturday, July 17, 2021

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

A

A municipal court judge in New Jersey ordered a woman to remove "Fuck Biden" lawn signs or face fines of $ 250 per day (unable to post photo, but can be found in the article).* This is an absurd ruling, in which no one-- the judge, the town's attorney, or the reporter covering the story--understands the First Amendment. The town proceeded under its obscenity ordinance, even though: 1) the written word is almost never obscene in modern doctrine; 2) nothing about "fuck Biden" describes sexual conduct because the point of the message is not that this woman wants anyone to have sex with Joe Biden; 3) nothing about this appeals to the prurient interest, as opposed to angry and hostile politics; 3) Cohen establishes that the word "fuck" is protected as a verbal intensifier; and 4) even without Cohen, using the word as part of an anti-Biden message gives it serious political value, removing it from the definition of obscenity.

* The story includes the photo with the signs on full display, then uses "f-word" throughout. We have weird standards.

Everything about this is wrong on the law. The news report paraphrases the ordinance as defining obscenity as "material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value." But either this ordinance is facially invalid or the reporter should not be covering courts. Merely describing sexual conduct is not enough; it must do so in a "patently offensive" way that also appeals to the prurient interest. And Miller is conjunctive--it must describe sexual conduct and lack SLAP merit. Again, however, obscenity should not be part of this discussion--Cohen makes clear that profanity as part of a political message is protected.

The woman's lawyer did not help through his comments to the media, showing that he may not understand what this case is about. He tries to argue the signs are not obscene because obscenity has changed, pointing to how people treated women's knees in the 1920s. He then railed about burning books and burning people (?!) in Nazi Germany. No mention of Cohen, fuck the draft, or recent cases holding that flipping someone off is protected, all of which is more doctrinally relevant than Nazi book burning. Maybe he is doing a better job in court than outside of it. But it would be nice if the ACLU or someone with the expertise to show the court and the public why this is nonsense were in the mix.

Update: Forgive me for not emphasizing enough the wrongness of the court's decision and her lawyer's seeming approach to the case. SCOTUS less than one month ago issued an opinion, binding precedent, saying the following: "And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. See Cohen v. California, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection." Anyone believing an obscenity ordinance could apply to these signs, in the wake of that opinion, should be disbarred and/or kicked off the bench.

Two final points. First, this shows why (as one of my colleagues argues) First Amendment should be required or overwhelmingly encouraged. Lawyers qua lawyers should know the First Amendment. And it is important enough that a municipal court judge or suburban township attorney should know the area, however rare it might be that it comes up in their work. Second, this illustrate the point made in this article by Norman Spaulding (Stanford), reviewed on JOTWELL by Suzette Malveaux: The Civ Pro taught as the ideal in law school is a far cry from the real procedure applied in local courts, such as this one.

B

President Biden and Press Secretary Jen Psaki are taking heat for criticizing Facebook and others for allowing bullshit vaccine information (my words) on their sites. Biden went so far as to say the sites are killing people, while Psaki acknowledged conversations urging the sites to do a better job of policing misinformation and providing. Several critics noted that this plays into the narrative of the Trump lawsuits that Democrats in government have coerced or compelled the sites to ban certain speakers and speech, making the sites into state actors.

Government officials, especially the President, speak to private actors; push preferred policies, issues, and ideas; and encourage those actors to act or not act in a certain way.  Government "speaks" and attempts to persuade; successful persuasion does not create a public-private conspiracy. In fact, we expect the President to "lead" in this way from the bully pulpit, by rallying the public to agree with them and criticizing those who do not. It is part of governing and part of public dialogue. And saying that allowing the speech is "killing people" is the sort of rhetorical hyperbole protected in that dialogue, no less so when uttered by a government official.

As David Frum argues, "'Please stop spreading anti-vaccine misinformation on your platforms' is a request very much in line with long traditions of presidential leadership challenging corporations to accept basic norms of social responsibility." On the other hand, Kevin Drum questions Biden's failure to include Fox News as among those killing people, as more influential (and I would add more direct) purveyor of vaccine falsehoods.

C

In twelfth grade, we read Swift's A Modest Proposal, then were assigned to write an essay in that style. I proposed that sober people should not be allowed to drive, leaving the roads to drunk people who, in time, would kill themselves or others. It feels as if that is where we are headed with unvaccinated people using public spaces.

Posted by Howard Wasserman on July 17, 2021 at 12:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, July 15, 2021

Who gets to cancel?

Four people have been arrested (and more arrests appear likely) over online racist abuse directed at the three members of the English soccer team who missed penalty kicks in Sunday's Euro finals.

Such arrests would be impossible in the U.S>, because racist speech is protected. (Or likely protected--we would need to know more about what exactly these people said and did and whether the context pushes it into an unprotected category such as harassment or fighting words). Instead, these speakers would have been subject to a range of private consequences. Their identities might have been exposed and they might have been ridiculed, criticized, shunned, and dismissed from jobs and other positions. That is, private people would have expressed their disagreement with and criticism of the original speakers and their racist speech, in the face of more limited government power to do so.

So two points. First, this illustrates the problem with the derisive label "cancel culture." What I described above is counter-speech, the Brandeisian remedy for evil counsels; to write it off is to leave some able to speak but not others or to control how speech is exercised. Second, this illustrates the divide between the U.S. and Europe over hate speech and presents the question of which approach is superior--privately administered consequences or government-imposed consequences.

Posted by Howard Wasserman on July 15, 2021 at 12:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 14, 2021

Ron DeSantis says the quiet part out loud, undermines anti-protest laws

Protesters opposing the Cuban government blocked several Miami-area roadways Tuesday, including a major highway. Police responded by shutting down the highway, creating buffers a great distance from the protesters in either direction and routing cars off the road, allowing protesters to do their thing. They "negotiated" an end to the protests and reopened the roads around 11 p.m. last night, almost twelve hours after the protests began.

Florida Governor Ron DeSantis famously signed an "anti-riot" bill. A protester can be cited for "willfully obstructing the free, convenient, and normal use of a public street, highway or road." Penalties are enhanced if someone blocks a roadway during a protest that comes to destroy property. And the bill provides immunity for anyone who runs over a protester in the street. But  police attempted to negotiate and keep the protesters safe, but never issued a dispersal order. No one was cited yesterday and police made sure no drivers got anywhere near the protesters by blocking the roadway.

DeSantis was asked about this; the Miami Herald describes his answer:


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

“What is going on in Cuba in particular, those are not simply normal, run-of-the-mill protests like we see here in the United States. They don’t have freedoms respected there, whereas in the United States, you have a panoply of freedoms that are respected,” DeSantis said. “They are seeking an end to the regime itself.”

He added: “They are trying to end the regime. So that is fundamentally different from what we saw last summer where people were burning down buildings — and this was fortunately not happening in Florida to a large extent — burning down buildings, looting, breaking windows and targeting law enforcement and all those things.”

This is incoherent. The extraordinary measures that people in Cuba are taking to end the regime and their lack of a "panoply of freedoms" has nothing to do with protesters in Miami, who have that panoply and are able to engage in "normal, run-of-the-mill protests." They chose this method of protesting, apparently to draw maximum attention to the cause (which, logic suggests, is what every group wants to do). Many BLM protests got out of hand when police confronted protesters, issued dispersal orders (often very quickly and simply because the gathering was large), and attempted to clear the protesters--that never happened yesterday. Finally, the BLM protests "target[ed] law enforcement" only in the sense that their protests criticized and sought to change the behavior of law enforcement, just as Tuesday's protests criticized and sought to change the Cuban regime. So the difference, according to DeSantis, is the subject of the protest--targeting law enforcement is bad and grounds for mass arrests for blocking highways, targeting the Cuban regime good and grounds for law-enforcement to allow a major roadway to be shut down for half a day.

The anti-riot law, which is the subject of several ongoing First Amendment lawsuits, is an example of a law written in content-neutral terms but has a content-based motivation and is likely to be enforced in a content-based manner. Yesterday's events illustrated that point. We saw how police responded to similar actions during the 2020 protests, before the new law was enacted. And we saw how police responded yesterday, with the new law in place. Combined with DeSantis' statements distinguishing anti-Cuba protests from anti-police protests, the lawyers challenging these laws have a new piece of evidence for arguing these laws are content- (if not viewpoint-) discriminatory.

Just to be clear: I am not criticizing the protesters; breaking laws to protest injustice is a storied free-speech tradition. And police should give protesters a certain amount of leeway for spillover. But the response of police and the governor illustrate First Amendment problems with Florida's vaunted laws enacted less than three months ago.


Read more here: https://www.miamiherald.com/news/local/community/miami-dade/article252766758.html#storylink=cpy

Posted by Howard Wasserman on July 14, 2021 at 07:44 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

Texas and Florida are locked in a bizarre race to the bottom in enacting the most stupid and constitutionally problematic laws. Florida jumped into the censor-social-media-in-the-name-of-stopping-censorship and was smacked down in federal court.

Texas decided to follow suit, proposing its own absurd law (nice summary here). It includes some new features, including record-keeping, notification, public-disclosure, and process requirements surrounding how sites moderate content that I expect the state will justify in the name of consumer protection but which might be vulnerable to challenge. It tries to learn from Florida's mistakes--no Disney exception and targeted sites are not defined by size. And Texas does not prohibit sites from appending statements, comments, criticisms, or warnings to posts; it does not attempt to stop sites from engaging in counter-speech in response to user content.

But the same problems remain The definitions exclude news sites and others that "preselect" content and for which user content (such as comments) is incidental to presentation of that preselected material; the news-organization exception was one of the content-based defects Judge Hinkle noted in Florida. It defines censorship as to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression," which limits the order and manner in which sites can have material presented--any listing of sites puts one thing over another, which treats some material better than other; chronological or alphabetical would be the only options. And it prohibits that "censorship" on the basis of viewpoint, which means sites cannot  prohibit any expression--Nazis, racists, anyone--because of disagreement with an otherwise constitutionally protected message.

Expect a carbon-copy opinion from a court in Texas soon.

 

Posted by Howard Wasserman on July 9, 2021 at 05:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 07, 2021

Today in dumb lawsuits

Coming to my neck of the woods in the Southern District of Florida: Class action lawsuits by Trump against Twitter and Jack Dorsey; YouTube and Sundar Pichai; and Facebook and Mark Zuckerberg; all allege violations of the First Amendment and the constitutional invalidity of § 230 (I guess because by protecting private actors, it incentivized their censorship or improperly delegated censorial power).

I think we can agree that this is stupid, for many of the reasons that this lawsuit was stupid. But wait, this one gives us more:

• There may not be personal jurisdiction here. Some of the named defendants are not Florida citizens. Trump was still President and residing (if nor domiciled) and tweeting from D.C. when Twitter and Facebook banned him. So the act of banning him was not "aimed at" Florida.

• Venue may not be proper. My understanding is that terms of service agreements include forum-selection clauses that funnel these cases to California. I have to look into that further. Update: Yep. Brad Heath of Reuters reports that Twitter and Facebook both require that federal lawsuits be in the Northern District of California]

• I do not know how you get a declaratory judgment that a law is invalid without suing the person charged with enforcing that law. Facebook, Twitter, et al., do not "enforce" § 230. They enforce their private terms of agreement and the rules for their sites. If § 230 has the effect of converting them into state actors (it does not, but work with me) in banning Trump and others, they still are enforcing their own private terms of service; but those terms of service have been converted into public regulations subject to First Amendment limits. The companies are not enforcing § 230. Enforcement of § 230 rests with someone in the executive branch. But no government officials have been sued. Update: Another problem with this issue that has been raised: Challenges to the constitutional validity of all provisions of the CDA of 1996, including § 230, must be heard by a three-judge district court.

• The purported class is everyone banned since June 1, 2018 within the United States, which includes a whole of people engaged in unprotected speech (as opposed to Trump's protected-but-false-and-offensive speech), That may be too broad to certify.

• The captions list the first plaintiff as "DONALD J. TRUMP, the Forty-Fifth President of the United States," which might be one of the saddest things in any pleading. And I teach the case brought by "NARUTO, a Crested Macaque." This is worse.

• Yes, the lawyers who filed this nonsense should be held up to public ridicule and potential clients should take this into account in deciding whether to retain them.  Also, referring to "Democrat lawmakers" works on Twitter and the Republican echo chamber; in real life, it is disrespectful. This tells us one of two things: 1) The lawyers are talking to the public rather than the court or 2) The lawyers assume the judge will be as hacky as they are; neither is likely to play well with the judge. Whether that warrants sanctions or PR consequences is another story.

Update: A point I saw raised: Trump spent four years arguing that he was not a state actor when blocking people from his Twitter and Facebook pages, while now arguing that those who created the site he was using are state actors. Are those positions reconcilable? If Twitter and Facebook are state actors, how does that affect the people who use those sites in their relationships to other users? If the site is state-run, does that make every piece of the site state-run, such that the individual user also is a state actor?

Another Update: How does the invalidity of § 230 affect the under-color argument? The defendants act under color (allegedly) because § 230 gives them immunity from suit and delegates censorial power and because the threatened repeal coerced/compelled/induced them to censor certain messages. But if § 230 is invalid (facially, according to the complaint), would it not be a good thing that Congress sought to amend or repeal? Alternatively, if the court declares § 230 invalid, does that eliminate the close nexus, so the defendants no longer are under color?

Posted by Howard Wasserman on July 7, 2021 at 12:28 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, July 02, 2021

Reconsidering doctrine

From the final Orders List: Justice Thomas again calls for reconsidering qualified immunity (p.30 of List), including that it makes no sense to us the same standard for police officers making split-second decisions as for a college administrator making deliberate and calculated choices about enacting and enforcing policies (here, creating free-speech zones  on campus). Thomas again calls for reconsidering New York Times (p.41 of doc) and Justice Gorsuch has joined as a wingman (p.44), which suggests this campaign might begin to have legs.

The assault on NYT is notable because it runs opposite to the trend among  free-speech advocates and scholars--their view is that NYT, while great, is insufficient and requires additional protection through anti-SLAPP statutes to stop the filing of bad lawsuits (those that fail under NYT) to bankrupt and silence defendants. Gorsuch adds an odd bit about how few defamation cases go to trial, ignoring that few cases go to trial on any topic because of how 12(b)(6) and summary judgment have been interpreted and applied.

The danger of the emerging Thomas/Gorsuch position is figuring out what it means to "reconsider" NYT. Does it mean eliminating the entire First Amendment edifice (standard of proof, burden of persuasion, protection for parody and satire, protection for anything other than provable statements of fact) and leaving everything to state law? Or does it mean eliminating actual malice as the state-of-mind requirement but leaving the rest in place? And how much of the difficulties that Gorusch decries for defamation plaintiffs derives from actual malice as opposed to the rest of that constitutional edifice? Neither Thomas nor Gorsuch says.

Posted by Howard Wasserman on July 2, 2021 at 01:12 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

On Americans for Prosperity

SCOTUS on Thursday declared invalid a California law requiring not-for-profits to file with the state their Schedule B's revealing major donors. It was another largely 6-3, with Roberts writing for the majority, Thomas joining in all but a few parts, Alito and Gorsuch joining in all but a few parts, and Sotomayor writing the dissent. A couple of points aside from the First Amendment merits

First, the majority declared the California law facially invalid because of its overbreadth, while Thomas questions overbreadth and facial unconstitutionality. Thomas seems to use that departure to fight about universality, making two points. First, while speaking of facial invalidity, "the Court does not say that it is 'provid[ing] relief beyond the parties to the case'"--that is, it is not expressly making the judgment universal. Second, Thomas argues that the judgment does not depend on facial invalidity, only the opinion--"One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners."

This is the right way to understand facial invalidity, within the distinction between judgments and opinions. The Court's judgment/injunction remains particularized to the parties. The reasoning in the opinion explaining the judgment establishes judicial precedent that the law is invalid when applied to anyone else. That precedent binds courts in future cases, compelling the court declare the law invalid and to reject new enforcement efforts against others.  If California attempts future enforcement, the new targets must go to court for a new or expanded injunction. They will get it, because SCOTUS precedent establishes that the law is invalid as to all persons. But they must take that step. And California does not violate the injunction in this case by attempting future enforcement against others.

Second, I am intrigued by Zachary Price's model of "symmetrical constitutionalism, which I discuss in a forthcoming essay. Price proposes that justices should favor "when possible, outcomes, doctrines, and rationales that distribute benefits across major partisan divides, as opposed to those that frame constitutional law as a matter of zero-sum competition between competing partisan visions." The idea is to focus on the principle at issue, rather than on who won the immediate case, where the principle will protect politically distinct people and entities

On its own, AFP fits Price's  model, as shown by the range of groups--ACLU, NAACP, PBS--that filed amicus briefs in favor of the plaintiffs. But the Court divided across ideological/partisan lines and the case is being reported and analyzed as a victory for wealthy conservative groups and their wealthy conservative donors. One reason for many is a belief that the "other side" does not follow the principle as much as the outcome--Justice Alito would be less solicitous of the First Amendment concerns if, say, Texas tried to do a deep-dive into Planned Parenthood's donor base. Another is the fear of this case as a stalking horse for further limits on campaign-finance regulation by imposing the same protections for contributions as for expenditures, which plays into a zero-sum competition between competing partisan visions.

Posted by Howard Wasserman on July 2, 2021 at 09:22 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, July 01, 2021

Florida social-media law (unsurprisingly) violates the First Amendment

Judge Hinkle of the Northern District of Florida declared that the law violates the First Amendment and preliminarily enjoined its enforcement. This result was over-determined from the start. The court adopts the views  that speech-protective commentators had been arguing from the beginning, which seemed clear from the argument on Monday.

    • Social-media sites are not state actors and cannot violate the First Amendment. So the law cannot be justified as a way to vindicate users' First Amendment rights.

    • Social-media platforms look more like the newspaper in Tornillo and the parade in Hurley and the state has no interest in "balancing the debate." They look less like the shopping mail in Pruneyard or the interviewing classrooms at Harvard Law School; allowing speakers onto your property is different from controlling the owner's speech or dictating how the owner must provide that access.

    • The law is "as content-based as it gets" and subject to strict scrutiny (which Florida conceded at argument it could not survive). This seemed obvious. It treats political candidates and speech by or about candidates different from other speakers and speech. It regulates large platforms but not smaller ones. It is viewpoint discriminatory, motivated by a desire to protect conservative speech and speakers. And that is before the court reached the Disney carve-out.

All-in-all, a slam dunk. And it is hard to envision a different outcome in the 11th Circuit. It would be cheaper for Florida to go back to cut bait and start over. But it will not, because Ron DeSantis has judges to run against in 2024.

Posted by Howard Wasserman on July 1, 2021 at 03:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 30, 2021

Understanding "cancel culture" and "offense"

It is obvious beyond peradventure (as Justice Brennan used to say) that conservative cries of "cancel culture," "liberal snowflakes," and "offended at everything" are bullshit projection. But nothing illustrates the point better than this Fifth Circuit case.

According to the complaint, a public-school teacher got pissed off that a student was excused from reciting the Pledge; he assigned the class to write the pledge (which the plaintiff refused to do); made in-class speeches offering to pay her to live in a better country and railing about Sharia law, sex offenders, etc.; and generally treated the plaintiff less favorably than her classmates. The district court denied summary judgment, finding issues of fact about the teacher's motive and actions (he insists that writing the pledge was a class assignment rather than a way to require a statement of loyalty). The teacher immediately appealed under the collateral order doctrine to challenge those findings but not to argue that the law was not clearly established. The Fifth Circuit dismissed the appeal for lack of jurisdiction; only legal issues are immediately reviewable under the COD, not factual findings or the finding of factual disputes.

Judge Duncan dissented, with a strange conclusion that emphasized that "[w]e live in an easily offended age. Even Dr. Seuss is controversial," while imagining cases in which students are compelled to pledge written ideas contrary to their religious beliefs and students refuse to recite the words of the Declaration and King's "I Have a Dream" speech (or the one line from the speech Judge Duncan knows).

But Duncan's outrage is laughable for several reasons, showing the lack of real commitment to the First Amendment. First, it seems odd to complain about how easily offended everyone is in a case that alleges that a teacher was offended by a student's constitutionally protected right to refuse to salute the flag and retaliated against that student in a number of (unhinged, unprofessional, and arguably unconstitutional) ways. When one objects to Dr. Seuss or a Confederate monument or the Pledge, one is an easily offended snowflake; when one objects to Critical Race Theory or wokeness or other liberal-but-protected speech, it is standing up for principle or some other noble cause. Second, Duncan would be the first person to support the long-standing conservative project to allow students to opt-out of an assignment requiring a student to write "Praise be Quetzalcoatl." So it is odd to see that as a slippery-slope example while dissenting in a case allowing a student to opt-out of an assignment.

There is an interesting qualified immunity question that the teacher did not properly tee-up on appeal: Assuming he gave the written assignment as a form of pledge (the disputed fact in question), is it clearly established that this violates the First Amendment? The dissent says no, pointing out that no case has ever found a violation from a written pledge. The majority quotes Barnette: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (emphasis in case). What wins out--the absence of a factually identical case or the clear statement of general principle in the controlling SCOTUS opinion?

Posted by Howard Wasserman on June 30, 2021 at 12:58 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

Facebook cannot be sued because entities, as opposed to individuals, are not proper targets of Bivens actions. The stupidity of this case aside, this is problematic, because it creates another way in which Bivens is not parallel to § 1983--the company could be sued if a state or local government coerced or conspired with it to do something, but not if the federal government does that.

The claims against Zuckerberg failed in part because the complaint did not plead facts showing direct involvement by Zuckerberg with respect to the plaintiff organization's page, as opposed to running Facebook generally. The court refused to infer direct involvement from allegations of Zuckerberg being a "hands-on CEO" making it "highly likely" that he was. Any coercion or encouragement government officials gave Facebook to limit vaccine misinformation did not connect to any specific actions against the plaintiff. And § 230 immunity did not encourage or coerce this conduct, because that immunity does require Facebook or Zuckerberg to do anything and immunity does not hinge on Facebook doing anything.

The court dismissed without prejudice and denied leave to amend. The plaintiffs moved to "supplement" the controlling complaint with new information about the Biden Administration's efforts to stop online vaccine misinformation. The court treated this as a preview of what new allegations plaintiffs would put in a new pleading and concluded they would be insufficient for the same reason the current allegations are insufficient. So the case is over and the next stop is the Ninth Circuit.

Posted by Howard Wasserman on June 30, 2021 at 12:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 29, 2021

Executive v. Legislative and Twitter blocking

Judge Domenico of the District of Colorado held that Rep. Broebert did not act under color and thus did not violate the First Amendment in blocking a viewer from her @laurenboebert account on January 6 (but not from her official @RepBoebert House account). According to the court, Broebert started this account before she was elected to Congress and uses this account to discuss political issues, her legislative agenda, and bills she has introduced. This case is analogous to a Tenth Circuit decision from January finding no state action in blocking people from an account started during an initial campaign and containing more campaign-related material than office-related.

The court did a few things I believe are incorrect and problematic along the way and may confound these cases going forward, even if the result is probably correct.

First, Domenico went on a brief discursive about why there might not be a cause of action, citing Ziglar v. Abbasi and noting the recent retrenchment of Bivens, although he does not resolve that issue because Boebert did not raise the issue. This is wrong. In shrinking Bivens actions for damages, the Court has never suggested that it also wished to shrink Ex Parte Young actions against federal officials. In fact, Ziglar recognized the availability of injunctive relief, despite the absence of an express cause of action authorizing injunctive relief, as a special factor counseling against recognizing the Bivens claim. He rejects the plaintiff's assumption that the court's equitable powers provide the cause of action because "equity follows the law." But that ignores SCOTUS' statement in Armstrong: "The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Not sure what Domenico is aiming at, but that is a pretty clear statement that equitable actions are not the same as Bivens actions and do not require an express right of action.

Second, Domenico adopts a very cribbed understanding of the official actions of legislators. As he puts it, "legislators legislate. Their state-created powers are to propose legislation and to voteand little else." Later he says that "Individual legislators do not have the constitutional power to either make law or abridge speech, and thus their individual actions are not within the First Amendment’s coverage." But legislators do a lot more as part of their jobs. One thing they do is communicate with their constituents. If an individual legislator held a press conference, gave a speech, or convened a constituent town hall and excluded certain people from the event because of their viewpoints, that legislator acts under color and could be subject to a First Amendment suit. I have never heard anyone question this. This is the social-media version of that. It may be, as the court later says, that it is impossible to distinguish a legislator's statement as legislator from her statements as candidate for reelection. But that is different from saying a legislator's public statements are never under color of law.

It seems to me Domenico conflates legislative functions (proposing and voting on legislation) and official functions performed by a legislator, such as public communications. The latter are covered by legislative, or Speech-or-Debate, immunity, while the former are not. But the under-color question is supposed to be whether the defendant's conduct was made possible by his public position and authority. Legislators can do a lot more than purely legislative functions as a result of their office, some of which could violate the First Amendment. Domenico tries to reframe the question as authority to act on behalf of the state, but that has never been the standard. Domenico relies on West v. Atkins, which was about when private individuals are under color, a different inquiry.

Third, Domenico argues that the First Amendment says "Congress" shall make no law, which means "Congress, not its individual members, commands the federal government, and it is that body that the First Amendment sought to constrain." But the First Amendment has not been limited to formal legislative enactments. This would mean that the First Amendment does not "constrain" an executive officer (e.g., an FBI agent) from arresting someone because he did not like the person's speech or because of his religious views. I presume Domenico did not mean to say that.

Fourth, Domenico's approach draws a sharp line between legislative and executive officials. Because the executive's actions have practical legal effects that an individual legislator's actions do not, the former act under color in running their Twitter feeds in ways the latter do not. The factors that governed in Trump and Davison (content, appearance to the public, ways of operating the feed) are irrelevant to legislators. Again, that works if the standard is whether an official's actions "bind" the government as policy; it does not work if the question is (as it should be) whether the actions are "made possible" by the official position, because legislators do a lot of things made possible by their positions.

Again, I am not sure Domenico did not reach the correct result, because the Davison/Trump factors make this look like a private rather than official feed. But his analysis misses the mark in many ways that would have bad and far-reaching effects on the First Amendment and constitutional litigation.

Posted by Howard Wasserman on June 29, 2021 at 06:58 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 25, 2021

Thoughts on Mahanoy

SCOTUS decided Mahanoy Area Sch. Dist. v. B.L. on Wednesday. Justice Breyer wrote for eight, holding that the school violated the plaintiff's First Amendment rights in suspending her from the J.V. cheerleading team. Justice Alito concurred for Justice Gorsuch. Justice Thomas dissented, unsurprisingly. Some thoughts after the jump.

• Kudos to Justice Breyer for using the word "fuck" in describing B.L.'s messages rather than expurgating, saying "F-word," or using some stupid euphemism.

• The Court rejected the Third Circuit's approach creating a three-tier structure: 1) In-school speech subject to Tinker; 2) out-of-school speech potentially regulated by the school under ordinary First Amendment standards; 3) out-of-school speech beyond the school's regulatory power. Instead, it is two tiers: Tinker is the standard whenever schools have the authority to regulate speech, in or out of school, while some speech may be beyond the school's power to regulate.

Because of that rejection, the school district framed this as a victory, as "vindication of schools’ authority to protect students and staff and to fulfill schools’ educational missions." Sure, it owes Brandi Levy $ 1. But the school sees this decision as endorsing its power to regulate a good deal of student speech, perhaps more speech than Breyer believed he was allowing in writing the opinion. This framing shows that we can expect much litigation in the coming years over attempts to punish out-of-school speech, especially online. Many district courts adopted a more capacious understanding of disruption than Breyer suggests.

The school did not mention that it also owes the ACLU substantial (liekly upwards of $ 750,000, given three layers of review) in attorney's fees. Uzuegbunam, which held that a claim for nominal damages avoids mootness, may prove to be the most significant case of the Term. Brandi Levy just finished her freshman year of college; if nominal damages were not sufficient to keep a case alive, this whole thing would have been moot.

• The Court identified three principles off-campus speech that usually, but not always, place it beyond the school's regulatory power: 1) The school is not in loco parentis; 2) Schools have a heavy burden to justify regulating speech outside of school or a school program or activity, lest students be left with no opportunity to speak; 3) Schools should respect, rather than restrict, student's efforts to express unpopular ideas. As a result, "the leeway the First Amendment grants to schools in light of their special characteristics is diminished."

The Court emphasized that the speech was otherwise constitutionally protected and entirely outside of school, so the school was not I/L/P; that there was no evidence of disruption; and that negativity and undermining team morale are not sufficient disruptions. Breyer closes with an acknowledgement that this was a teen's snap of a profanity and a vulgar gesture, "but sometimes it is necessary to protect the super-fluous in order to preserve the necessary."

• Justice Alito's concurrence attempted to reframe the majority. It staked out a more speech-protective approach in several ways (surprising, given the source).

    • Alito said he could not see this applying to college students, given their age, independence, and living arrangements. Their has been a split about whether and when Tinker applies to colleges; the better answer is it should not apply. It was good to see someone make it explicit.

    • Alito attempted to create a taxonomy of student speech. On one end is off-campus extensions school programs and activities. At the other is speech "not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern;" this lies beyond the school's reach, even if offensive, because Tinker does not create a heckler's veto under which offensiveness equals disruption equals power to regulate. In the middle is off-campus speech that disrupts the school, such as threats, bullying, and harassment (however difficult to define). B.L.'s snap was about the school but did not criticize or deride individuals, and it did not disrupt the school beyond affecting team morale.

• Alito being Alito, it is hard not to look for an ulterior motive. He emphasizes the school's power being grounded on ILP and the limits on ILP from parents' primary control over the children. Might that be used to expand the right of parents to opt their children out from assignments and programs they deem objectionable?

Posted by Howard Wasserman on June 25, 2021 at 10:06 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, May 29, 2021

State action and free speech at Yankee Stadium

Bbf29345cc669fc1d263a670ebc12445-1Two fans at Thursday's game at Yankee Stadium were ejected from Yankee Stadium after hanging this banner from the mezzanine, to a chorus of verbal and nonverbal counterspeech. The men were removed for the stadium, but not arrested and allowed to keep the sign.

Newsmax finds this an affront to the First Amendment. First Amendment Twitter (literally, an account run by the First Amendment itself) says "I protect you from the government, not from the Yankees." Much as I hate to agree with anything appearing on Newsmax, it is not as simple as the First Amendment and its responders make it sound.

At old Yankee Stadium (1923-2008, as renovated in 1976), this would be an obvious First Amendment case. The old Stadium was owned by New York City and leased to the Yankees for exclusive use on highly favorable terms. Plus, security was provided by off-duty New York police officers pursuant to a departmental program.

The NYCLU brought a lawsuit in 2009 on behalf of two fans who were ejected for refusing to stand in place when God Bless America was played during the Seventh-Inning Stretch. There were strong arguments that the Yankees--by virtue of their exclusive and beneficial use of publicly owned property and the involvement of off-duty officers in enforcing team policy--acted under color because of a "symbiotic relationship" with the city. A district court accepted it as to MLB in 1978 in holding that MLB violated the First Amendment by excluding female reporters from the locker room during the 1976 World Series  at the newly reopened Stadium. There also was an argument that the Yankees and the NYPD "jointly participated" in the alleged constitutional violation, because the Yankees used detailed officers to enforce their policies. The 2009 suit settled, with the Yankees taking a judgment for $ 10,001 and attorney's fees of $ 12,000.

The current stadium is owned by the New York City Economic Development Corporation (NYCEDC), a not-for-profit entity that is not a city agency. Its governing board has 27 members--7 appointed by the mayor at his discretion, 10 appointed by the mayor from nominees from the Borough Presidents and Speaker of the City Council, 10 appointed by the chair from a list approved by the mayor. The park cost about $ 2.3 billion, $ 1.1 in public money, and about $ 670 million from the team. I do not know the terms of the lease between the NYCEDC or the Yankees and whether they are as favorable as the terms of the lease with NYC on the old Stadium--although I cannot imagine the team gets less from this stadium than from the previous. I also do not know if security is provided through the NYPD program--pictures in the linked stories show people in uniform speaking with the banner holders.

There is a good argument that NYCEDC, given the manner in which its members are appointed, acts under color under Brentwood's entwinement test. But the Yankees, not NYCEDC, make and enforce these policies. The question is whether a private entity can have a symbiotic relationship with a public-private entity--do the Yankees act under color because they have a symbiotic relationship with an entity that itself acts under color because of its entwinement with the government? Alternatively, the plaintiffs might try to show symbiotic relationship from its exclusive use of a facility that was paid for largely with public funds, regardless of who holds title to the facility. A third option is carrying the joint-participation argument from the old Stadium, depending on whether the team has the same security arrangement with the NYPD.

If the bannermen can establish state action, do they have a First Amendment claim? Team policy requires that banners be "baseball-related, in good taste," not affixed to the stadium in any manner, and not obstruct anyone's view. The question is whether they were ejected for  displaying a banner in an improper manner or because of the content of the banner. I also would argue that the "baseball-related" limitation is invalid, given the broad scope of  the "cheering speech" fans engage in and (much as sports like to deny it) the historic link between social/political issues and sports. Fans can orally chant non-baseball-related stuff during the game, including that "Trump one." It should follow that a non-obstructive and non-affixed non-baseball related banner should be permissible.

Two last points. First, this should not be seen as the camel's nose for arguments that YouTube/Twitter/Facebook act under color; the connection to government is not bad. Second, I believe we can agree that Newsmax would be covering this story differently had the banner read "1/6 Commission Now" or "Trump Should Be Prosecuted."

Posted by Howard Wasserman on May 29, 2021 at 04:48 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, May 27, 2021

Even First Amendment violations are bigger in Texas

Texas must have been jealous that Florida was getting all the attention for enacting laws that violate the First Amendment to an extraordinary degree. Especially after it failed  to pass its social-media bill, to the consternation of Lt. Governor Dan Patrick.

Fortunately, the legislature did find a way to trample the First Amendment. The House passed the Star Spangled Banner Act (previously passed by the Senate and sure to be signed by the governor, again in response to Paxton's demagoguery), requiring that all contracts for services between professional sports teams and state and local entities that provides public funds include a promise to play the national anthem at the start of every event. It takes effect on September 1, although if history is any guide, a lawsuit will be filed next week.

Give Texas credit. There are plausible visions of free speech that might accept government compelling social-media sites to accept all speakers or to limit their power to bar speakers, given their role as forums for expression. I do not share the vision, but it is plausible. There is no plausible universe, barring SCOTUS overruling three or four precedents, under which the state can condition funds on private entities performing mandatory patriotic rituals.

Posted by Howard Wasserman on May 27, 2021 at 05:54 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

That did not take long

On Monday, Florida Governor Ron DeSantis signed the law purporting to regulate whether and how social-media sites decide who can use their sites. On Wednesday, I appeared on a local NPR program (first segment) discussing the law and predicting lawsuits, and quick TROs or preliminary injunctions, on July 1, the day the law takes effect. I missed it by 35 days--a lawsuit was filed Thursday in the Northern District of Florida by two trade associations representing most of the major social-media and tech companies, including Facebook and Twitter.

My favorite feature, besides the obvious First Amendment arguments--the bill includes a carve out for any company that operates a theme park, a clear sop to Disney. Count III is an equal protection claim, challenging that specific carve-out.

Preliminary injunction coming soon.

Posted by Howard Wasserman on May 27, 2021 at 04:16 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, May 13, 2021

Fed Courts Puzzle

After Twitter banned Donald Trump and others, Texas Attorney General Ken Paxton issued a Civil Investigative Demand (CID), a demand from the Consumer Protection Division seeking documents relevant to an investigation into possible violations of state consumer-protection law. Twitter filed suit in the Northern District of California, seeking a declaratory judgment and injunction stopping investigation or action to enforce the demand, alleging that investigation was begun to retaliate against Twitter for content decisions Texas did not like.

The Northern District of California dismissed the action as not ripe. The demand is not self-executing and requires the state to initiate an enforcement action in state court; absent a court order, Twitter can ignore the demand without penalty. The initiation of a retaliatory investigation, without more, is not sufficient adverse action to make a retaliation claim. The court distinguished precedent involving employment investigations, which carry the threat of termination or other adverse employment action, and subpoenas and other investigatory documents that carried sanctions without court involvement. Here, Texas would have to file an action in state court and any consequences on Twitter come from a state court finding that demand is valid. Because "to date,no action has been taken to enforce the CID," Twitter's action is premature.

But the effect will be to lock Twitter out of federal court on its First Amendment claim. Once the AG initiates the enforcement proceeding, Twitter would have an opportunity to raise its First Amendment arguments.  That the means the federal court might have to abstain under Younger--this would be a civil enforcement proceeding akin to a criminal proceeding, in which the state as party seeks enforce its laws, the proceeding would be pending, and Twitter would have an adequate opportunity to raise its federal constitutional arguments. Alternatively, should the state court find the CID valid, Twitter would be complaining about a state court judgment, triggering Rooker-Feldman. At a minimum, issue preclusion would prevent federal relitigation of the First Amendment questions raised and decided in the state enforcement proceeding. Twitter's only option is to appeal the enforcement action through the Texas system and hope SCOTUS would take the case on review. In the meantime, it can do nothing about the threat over its head and the chilling effect it is intended to create.

Update: An emailer shares my skepticism, wondering why this case should not be Steffel v. Thompson--a declaratory judgment on the First Amendment defense to any enforcement action. He suggests this was an error in framing. The court described Twitter's sought remedies, quoting the complaint, as an injunction prohibiting "any action to enforce the CID or to further the unlawful investigation" and a declaratory judgment that the "First Amendment bars . .. Paxton's January 13, 2021 CID and the investigation." By framing the DJ around the investigation rather than enforcement--whether on her own or based on the complaint--the court pulled the case out of Steffel. The result is to keep Twitter out of federal court, except through SCOTUS review.

Posted by Howard Wasserman on May 13, 2021 at 02:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

Yale law professor (and Tiger Dad) Jed Rubenfeld has signed on as counsel for Children's Health Defense, a non-profit anti-vaxx organization founded by Robert Kennedy, Jr., in a lawsuit alleging Facebook and Politifact violated the First Amendment in labeling certain content as false and in preventing people from donating to CHD through the site. CHD argues that Facebook acted under color because the CDC gave Facebook the standards and guidelines it used in its labeling, creating a close nexus through government coercion or encouragement of private constitutionally violative conduct. The more obnoxious coverage emphasizes that Rubenfeld undertook this representation during a two-year suspension at Yale, creating complementary memes of "disgraced law prof further disgraces himself" and "this is what happens when law professors try to practice law."

But I cannot see a meaningful difference between Rubenfeld pursuing free-speech claims for anti-vaxxers on Facebook and the ACLU pursuing free-speech claims for Nazis in Skokie. I (and most of the people using the case as a chance to zing Rubenfeld) agree with the legal arguments in the latter and disagree with the legal arguments in the former. But that cannot be the difference in evaluating the professional, ethical, or moral propriety of the decision to serve as counsel and to pursue this litigation.

Nor is the answer that the ACLU raised obviously and indisputably valid arguments about core free speech principles while "everything about [CHD's] case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake." Skokie was not the simple case in 1977 that it appears in 2021. Under the law at the time, fighting words had not been narrowed to face-to-face encounters, a state could punish group libel, and police could arrest outrageous speakers to prevent a hostile audience from engaging in violence. Newer case law (e.g., Brandenburg and Sullivan) called those cases into question, but the landscape was more open than it is today. Someone certainly labeled the ACLU's case on behalf of the Nazis "dumb." Similarly, arguments can be made that "Facebook is a private actor and so can control what gets said and how" is not the sole plausible conclusion. No precedent controls the situation in any direction. And while I believe best application of existing state-action doctrine leads to the conclusion that Facebook is not a state actor and I expect courts to agree, it is not so obvious.

This story implicates a broader controversy over how vigorous attorneys should be in pursuing civil litigation on behalf of plaintiffs. At what point can/should/must an attorney decline to take on a case or to make arguments in support of the client's position and how does the attorney identify that line? The general view is that a criminal defense lawyer is sui generis; the imperative to do whatever it takes is greater when defending an individual against the overweaning power of the carceral state, even when a "bad person" benefits. Even if not the same, however, Skokie has been celebrated as the principled lawyer using civil litigation to pursue general ideals for all, albeit for the immediate benefit of the ultimate bad or unappealing person. This was obviously and especially true of the First Amendment, but it was not so limited; RBG established principles of gender equality by vindicating the rights of men. Moreover, the analogy between civil and criminal works when both are about protecting rights against the power of the state. The state seeking to incarcerate is different in degree but not kind of the state prohibiting rights-holders from exercising their rights.

What has changed, such that Rubenfeld is the target of criticism and mockery? Or put differently, would we see the same criticism and mockery if Rubenfeld had joined the Skokie case. One possibility is that some might be be less accepting of the Skokie narrative, less accepting of lawyers using general principles used on behalf of bad people. Otherwise, are anti-vaxxers "worse" than Nazis? Some segment believes the ACLU was wrong to represent the Nazis in Skokie, so Rubenfeld is equally wrong to represent anti-vaxxers. A version of this positionarose during the post-election litigation, where firms and lawyers (including some large firms with reputations at stake) were criticized for pushing legally and factually absurd cases on behalf of plaintiffs wronged by state governments (and Dominion, of course), distinguishing those doing whatever is necessary on behalf of criminal defendants.

Posted by Howard Wasserman on May 12, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, April 28, 2021

Can kids be assholes? And other thoughts on Mahanoy arguments

Having listened and taken one pass through the argument in Mahanoy Area Sch. Dist. v. B.L., taking as a starting point that I am terrible at predictions from arguments.

• Can kids be assholes to one another? Everyone was worried that without Tinker, a school could not regulate bullying when it occurs outside of school. B.L.'s attorney tried to leave the school some power so long as it comports with non-Tinker First Amendment standards (bullying, defined similar to harassment, as a new category of unprotected speech). But Justice Sotomayor pointed out that a lot of problematic out-of-school behavior would be cruel but not bullying under any definition that would comport with the First Amendment. The presumption is that there cannot be a realm in which students might emotionally hurt each other with impunity other than from their parents, so the school must have the power to fill that vacuum. But impulse to kindness aside, must this be so and why? Maybe the answer is that emotional hurt, regardless of when or where it happens, is so traumatic for kids that someone has to do something. And the school should do it because, regardless of where it occurs, the bullying is part of school because school is life for kids.

• But that is what makes the school's and government's positions problematic. Giving the school the power to regulate anything that "targets" the school and a school topic is all-consuming, because school is life for kids. There is little a student says or does--or has said or done about her--that is not about school in some way and that will not find its way back to school and to her life as a student.

• Lots of questions about whether students in extra-curricular activities can be regulated more closely, even out of school, than ordinary students. The Third Circuit said no and the school did not appeal, so the issue was not before the Court. I do not see why it should matter, as suspension from an activity because of protected speech is as much an infringement as suspension from school, just as a $ 5 ticket for protected speech is as much an infringement as an arrest. (The difference in severity would go to the damages available in a subsequent § 1983 action, not to whether a violation occurred).  Everyone focused on sports (and cheer) at issue in this case, presuming they (supposedly) uniquely need unity, discipline, respect, cohesion, and camaraderie. And there is this idea of being a "school ambassador." Do student counsel, physics club, and band require those things? Does the band director or the play director warrant the same respect as the cheer coach? "Athlete exceptionalism" was the camel's nose for random drug-testing, which then expanded to all "competitive" extracurricular activities.

B.L.'s lawyer also argued that the school could set conditions on athlete (and other extracurricular participants'?) speech with clear policies in advance. But he did not specify whether the First Amendment imposes any limits on those policies--whether the school can compel students to agree to surrender all off-campus speech rights as a condition of participation. That would be unfortunate.

• Lisa Blatt, the school's counsel, worked hard to argue that Tinker does not create a heckler's veto and that religious and political speech cannot be proscribed under Tinker. Offense (by the school or by some subset of students) is not sufficient to create a disruption, absent a broader factual context such as student walkouts, an impending battle between the Jets and the Sharks, or an effort to use fighting words to "terrorize" a new Black student. This is important, because "disruption" could (and I think has in many cases) been based on listener anger.

• Off the free-speech topic: Justice Alito asked Blatt whether a student could be punished for misgendering a non-conforming student. She said the school could insist on "accommodations," such as requiring students to use the person's name but not a pronoun. I think we know where that is going.

Posted by Howard Wasserman on April 28, 2021 at 04:39 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 06, 2021

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, April 05, 2021

SCOTUS vacates Knight Foundation, Thomas has things to say

SCOTUS GVRed Biden v. Knight Foundation (begins on p.9) with instructions to dismiss as moot under Munsingwear. No surprise, as mootness was always inevitable because Trump would someday leave office, known to happen once he lost the election, and factual once Twitter banned him. Whether plaintiffs can recover attorney's fees remains. As do questions of the effect on qualified immunity.

We also have some explanation for why this took so long--Justice Thomas wrote a lengthy (solo) concurrence, emphasizing that the real power over internet spaces is private rather than governmental and offering arguments for why internet platforms might be regulable as common carriers or places of public accommodation. He also suggests that lower courts have misconstrued § 230 to give immunity to "bad-faith removal of third-party content," whatever that means. And he carries water for the grievance of Trump being banned from Twitter (and his 89 million followers), demonstrating the "stark" disparity between Twitter's control and Trump's control.

Thomas recognizes that the First Amendment limits government power to control speech in a private space that it rents or uses.

Whether governmental use of private space implicates the First Amendment often depends on the government’s control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975). But government officials who informally gather with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter.

I think this misses the mark in two respects. First, Trump could have asked the "pesky patrons"--assuming they were violating Twitter's terms of service--be removed by Twitter. Second, a government official's Twitter feed is more than an informal gathering with constituents and Thomas' framing minimizes the communicative power of Twitter. It seems more akin to a Town Hall meeting or a speech--the official speaks to the public and the public can hear and respond. If that is not a full-on public hearing on a proposed regulation (which limits the effect to legislative bodies), it is more than people who happen to be public officials hanging out in a bar.

Posted by Howard Wasserman on April 5, 2021 at 11:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 30, 2021

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So not only are these officers are off the hook, this case does not put the next officer on the hook for the same misconduct. And the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail because the right is not clearly established for lack of necessary judicial precedent. Of course, the court will never provide that precedent. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, March 10, 2021

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, March 09, 2021

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”


Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.


Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.


Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Posted by Lyrissa Lidsky on March 9, 2021 at 11:50 AM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (3)

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, February 11, 2021

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 10, 2021

Healy on cancel culture

Thomas Healy (Seton Hall) has a great short essay arguing that social censure of speech--what conservatives denounce, ad nauseum, as cancel culture--is a form of protected counter-speech in most contexts. I especially like the closing flourish: "For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent."

If anything, Healy may underplay the protected nature of much of what gets derided as "cancel culture," for reasons I have discussed in prior posts. The anti-cancel arguments benefit powerful speakers who can have access to a forum to be heard, then demand that other speakers only engage "on the merits" and reject anything else as silencing, while feeling no obligation to engage with the little people.

Healy also has a great response to complaints about silencing, reminding us what the marketplace of ideas is about:

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

I had not thought to put it in these terms, but this is right. The "marketplace of ideas" is not a debating society. Its purpose is not to air all ideas to air all ideas, but to identify those ideas that we want to adopt and to reject those that we do not. The left/liberal criticism of the marketplace is that it does not work and abhorrent ideas continue to exist and to flourish, even as most people find them offensive. If government cannot silence speakers and speech and even one person is entitled to hold onto a bad idea, disassociating from those ideas and from those who espouse those ideas must be built into the market.

Worth a read.

Posted by Howard Wasserman on February 10, 2021 at 03:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (15)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, February 04, 2021

What Southworth hath wrought

Bd. of Regents v. Southworth is an odd case. The action was brought by students at a public university challenging the use of their student-activity fees to fund groups or expression to which they objected. The Court rejected the claim because the forum was viewpoint neutral. I believed (and wrote at the time) that this was the wrong approach. Students were not compelled to fund any speech, so there should not be any free speech problem; they were required to fund a forum that the government operated. No one's First Amendment rights were violated, because no one was required to fund any speech or to give money for any objectionable speech; they gave money to the government that the government used to enable private speakers. And that does not change if the forum is not viewpoint neutral. The thing funded remains a public forum, just a viewpoint-discriminatory public forum. Any First Amendment claim should lie with anyone denied access to the forum on viewpoint-discriminatory grounds has a strong First Amendment claim. But the funders should have nothing.

The grounds on which Southworth was decided leads, unavoidably, to Smith v. Regents of Univ. of Minnesota. The plaintiffs were students who paid the mandatory fees. Some of their claims survived 12(b)(6) to the extent they challenged the unbridled discretion that university administrators had in deciding who received money, space, or other services. These plaintiffs were not denied money or space or other funded services; they simply do not like who does  receive money, space, and services or how that decision was made.

This makes no sense, however we look at it. On the merits, this should not violate the First Amendment, because the plaintiffs have not been compelled to speak or to fund anyone's speech, nor have they been denied access to a public forum to which they are entitled. Any unlawfulness in running the forum does not change the lack of connection between the plaintiffs and any fund recipient.  Or we could wonder how the plaintiffs have  standing, since they have not been harmed in any concrete way by the way the money was spent (the injury is not to their pocketbook, since they must pay this money no matter how the funds were spent) and they will not get their money back if the school changes its procedures. Or we could say this recognizes a new form of taxpayer standing under the Free Speech Clause, despite the Court's extreme narrowing of taxpayer standing in recent cases. Anyway of looking at is wrong. And that Southworth and the current court talk about this in First Amendment merits rather than standing terms and that we could criticize this decision either shows, again, that there is no meaningful difference between them except when courts treat them as different.

To say one nice thing about this decision: There is a wonderful discussion (at pp. 13-18) about the standard for 12(b)(6), the meaning of Twiqbal, and the differences between legal and factual insufficiency; I already shared it with my Civ Pro students. Not surprising, as Judge Patrick Schiltz was a Civ Pro scholar in his prior life.

Posted by Howard Wasserman on February 4, 2021 at 02:15 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (10)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 09, 2021

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, January 07, 2021

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)