PrawfsBlawg

More merits and standing overlaps

The Third Circuit rejected a First Amendment challenge to Pennsylvania's anti-discrimination/anti-harassment PR rule (ABA Model Rule 8.4(g)), concluding that the lawyer plaintiff (Zachary Greenberg) lacked standing. Given the definitions of harassment and discrimination, the plaintiff's planned speech (teaching CLE classes in which he would oppose hate-speech bans, repeat racist epithets in discussing cases, support due process protections for people accused of sexual misconduct, and support the right to express intolerant racist views) did not violate the rule and did not face a credible threat of enforcement.

This strikes me as good illustration of standing constitutionalizing an obvious merits issue. The plaintiff did not suffer an injury because his planned speech did not violate the rule and thus he did not risk liability for it. But that is the same as saying the rule does not violate his First Amendment rights by imposing liability on him for his protected speech. In fact, that is how the First Amendment would be raised and adjudicated in an enforcement action--the state initiates disciplinary proceedings against Greenberg; Greenberg defends by arguing that his speech does not constitute harassment or discrimination or that if it does, the statute is constitutionally invalid because his speech is protected by the First Amendment; and the disciplinary proceeding fails on the merits (either before the Bar or before the Pennsylvania Supreme Court).

If that analysis goes to the merits in an enforcement action, it should go to the merits (and not jurisdiction) in a pre-enforcement action. A pre-enforcement action allows a rights-holder to determine her substantive rights without having to violate the law and risk sanction. That pre-enforcement action should mirror the enforcement action. If jurisdiction is not an issue in one, it should not be in the other. The counter might that the question of the scope of the law and whether it reaches speech (the first defense in an enforcement proceeding, independent of the constitutionally protected nature of the speech) is a question of state law and that the federal court lacks jurisdiction to address state law. But courts do not fine-grain the standing analysis in that way.

Greenberg tried to argue that he would alter his speech based "on his perception of the social climate, which he sees as infested by '[w]idespread illiberal impulses for ‘safetyism,’”" citing studies of public distaste for offensive speech. But the court refused to find injury, traceable to the rule, from Greenberg's discomfort in speaking freely or in losing professional reputation, job opportunities, and speaking opportunities. This is important. The PR rules should not sanction lawyers for protected-but-obnoxious speech. The First Amendment should have nothing to say about social consequences for being publicly obnoxious.

What makes a career?

Congratulations to Jenny Martinez on her appointment as provost at Stanford. According to the Chronicle of Higher Education (paywalled), Martinez's main accomplishment as dean and main qualification for the job was "defending free speech" in the Judge Duncan debacle. In fact, "[b]y elevating Martinez to its top academic post, Stanford is making a statement in the continuing free-speech debate. Leaders across the country will look to Martinez to uphold that stance, particularly as she assumes jurisdiction over not only the law school but also Stanford’s entire student body."

I praised Martinez's letter at the time, particularly for recognizing the expressive nature of heckling and in-the-room protest. But the idea that this one event was central to her appointment or that education leaders nationwide will read this as some endorsement of an approach to campus speech is laughable.

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

Fifth Circuit takes injury where Fletcher and Newsom would not

The Fifth Circuit found the 2016 and 2021 FDA expansions of Mifepristone use unlawful under the APA; the majority upheld the original approval, over a dissent from Judge Ho. The case was brought by an organization of anti-choice emergency-room doctors; the court found associational standing based on probabilities that some member doctor might treat someone suffering from complications of Mifepristone, requiring the member to violate his conscience, deal with that patient rather than other patients, or suffer the mental and emotional stress of treating them. Ho goes a step further, finding doctors suffer aesthetic injuries from being deprived of the happiness of delivering babies--just as environmental activists are deprived of the happiness of seeing the Nile crocodile. In essence, the Fifth Circuit recognized--at least for anti-choice doctors--standing based on opposition to government policy where the policy's downstream effects cause them some anguish. Adam Unikowsky takes down the absurd--and unlimited--standing analysis.

I want to add a slightly different path on this point.

In arguing that "injury" cannot be detached from law (and that standing is about the merits of a claim, William Fletcher in his foundational article and Judge Newsom of the 11th Circuit in a 2021 concurring opinion offer versions of a case everyone recognizes as an insufficient legal injury. Fletcher offers A, who loses sleep over homelessness and donates money (which he would otherwise not do) to aid the homeless; Newsom offers B, who loses sleep over the federal deficit and purchases sleeping pills to help her sleep. Each then offers the identical comparator of C, a homeowner who loses sleep because of a barking dog and spends money on something (ear plugs, sleeping pills, thicker windows) to help.Everyone agrees that C has standing because she suffered a physical and monetary injury. And everyone agrees that neither A nor B has suffered an injury courts would recognize as establishing standing. But, Newsom and Fletcher argue, A, B, and C suffer identical injuries--loss of sleep and expenditure of money to alleviate the cause of the sleeplessness. We thus cannot attribute the different outcomes to the presence or absence of an injury; the difference arises from what what the substantive law recognizes as a violation of that law and of the rights created by that law-as Newsom puts it, "whether his legal rights have been infringed and whether the positive law authorizes him to sue for that infringement."

The Fifth Circuit decision recognizes the injury that Newsom and Fletcher agreed courts never would recognize--the government adopted a policy (allowing the sale and prescription of Mifepristone by willing doctors to willing patients) that worries other doctors and that causes these doctors to engage in some conduct (treating patients they would rather not treat for conditions they would rather not treat).

When I teach standing, I hit the theme of the ideological drift of standing--from a doctrine that conservative judges wielded strictly to stop liberal cause litigation to a doctrine hat interfered with conservative cause litigation to a doctrine many conservative judges want to discard in the name of conservative cause litigation. Between this case and Biden v. Nebraska, as well as Alito's insistence that there was standing in California v. Texas, we have many examples to choose from.

3d Annual "Law v. Antisemitism" Conference (February 25-26 2024) (Moved to Top)

Posting this one final time, with the deadline two weeks away. Please submit if interested and spread the word to people who might be.

FIU College of Law will host the 3d Annual "Law v. Antisemitism" Conference, Sunday-Monday, February 25-26, 2024. I am co-organizer with Rob Katz (Indiana-Inianapolis) and Diane Kemker (visiting at DePaul). The CFP and details after the jump.

Reposting with the deadline on September 1.

CALL FOR PAPERS/PRESENTATIONS

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law, Miami, Florida

You are invited to submit a paper or presentation for the 3rd Annual Law vs. Antisemitism Conference. The Conference aims to provide a platform for researchers and practitioners to present research and developments on the intersection of law and antisemitism -- how law has manifested and perpetuated antisemitism, and how law has been and can be used to combat it.

Areas of interest for the conference include, but are not limited to, the following themes and topics.

• The Working Definition of Antisemitism developed by the International Holocaust Remembrance Alliance (IHRA), its legal implications, critics and competing definitions (e.g., Nexus, JDA)
• Legal efforts in the U.S. and abroad to curtail expressions of antisemitism, e.g., by regulating hate speech, hate speech online, Holocaust denialism, and hate crimes
• Laws that authorize religious expression in public spaces, laws that target Jews and other religious minorities, and generally applicable laws that burden Jewish observance, including abortion bans (in the context of Dobbs)
• Legal responses to the Boycott-Divest-Sanctions (BDS) movement and other efforts to counter boycotts of Israel
• Comparisons between antisemitism and bias and discrimination based on race (including African Americans and Asian Americans) gender, sexual orientation and gender identity, or other categories
• Jews and whiteness, including white privilege, white nationalism, and white supremacy
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• Official discrimination against Jews, both historic and contemporary, including bars to holding office, immigration restrictions, housing and zoning restrictions
• Jews and antisemitism in the legal profession
• Jews as a protected class under federal and state civil rights statutes
• Jews and employment law, including employment discrimination, religious accommodations, and the ministerial exception
• Jews and antisemitism in higher education, including anti-Jewish quotas, Jewish perspectives on affirmative action, Title VI and hostile environments, faculty and student expression and actions concerning Israel and Zionism
• Law and the Holocaust, punishing the perpetrators, restitution for the victims
• The legal construction of Jewish identity (e.g., defining who is a Jew for purposes of the Law of Return, the Nuremberg laws)
• Case studies in antisemitism, e.g., the Dreyfus Affair, the Leo Frank trial
• Translating research on law and antisemitism into practical strategies for countering antisemitism through law
• Pedagogical approaches to teaching about the relationship between law and antisemitism

We invite scholars to reflect on the relationship between antisemitism, Jews, and the law, historically and in the contemporary environment, especially but not exclusively in the United States. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects. Please submit an Abstract of 300-500 words to [email protected]. Selected papers from the Conference will have an opportunity to be published in an upcoming issue of the FIU Law Review dedicated to the Symposium. (Questions may also be directed to [email protected].)

Proposals due September 1, 2023             

Presenters will be notified by October 1, 2023

More pedantry

Defendants do not move to remove cases to federal court and do not file motions for removal. They remove them to federal court through a notice of removal--telling the federal and state courts that this case is in federal court. In other words, Mark Meadows is not "attempting" or "wanting" to move his Georgia prosecution to federal court; that prosecution is now pending in the Northern District of Georgia. It then is on the State to challenge removal through a motion for remand and for the courts to agree with and grant that motion, ordering the case returned to state court.

Understanding Civil Rights Litigation (3d edition)

I am happy to announce that the third edition of Understanding Civil Rights Litigation has been published with Carolina Academic Press and is available for use in Civil Rights and Fed Courts classes the world over. I think (hope) the third time is the charm--I got it where I want it in terms of writing style, structure and organization, and balance among doctrine, case discussion, commentary, and problem sets. I am looking forward to using it in class in the spring.

The book was delayed by about a month because I had to make a series of changes as courts did new things that either changed or supplemented what I wrote. The Court taking seven months to decide Talevski did not help. Naturally, judicial decisions continue to outstrip the book. The Ninth Circuit overruled circuit precedent and joined every other court that § 1981(c) does not create a private right of action and plaintiffs must pursue § 1981 claims against municipalities through § 1983. A divided en banc Fourth Circuit overruled circuit precedent to join every other circuit that preliminary injunctive relief can make a prevailing party entitled to § 1988 attorney's fees.  Two Fifth Circuit judges got into it over whether circuit precedent can clearly establish a right for qualified immunity. All cases would have been helpful to how I wrote pieces of the new edition. I suppose it is inevitable.

Page Limits?

At SEALS last week, I watched an interesting panel on SCOTUS credentials. Panelists were Ben Barton (Tennessee, author of The Credentialed Court) and Renee Knake Jefferson (Houston) and Hannah Brenner Johnson (Cal Western), co-authors of Shortlisted). Ben mentioned the absurd lengths of recent SCOTUS opinions, which he attributed to the changing (and homogeneous-in-some-respects) identities of the justices and their workloads. Ben suggested the need for word-or-page limits on SCOTUS opinions, just as the Court imposes word-or-page limits on the parties.

I agree there might be some merit to this. Here is the question: Could Congress impose that requirement?

Obviously Justice Alito would say no. Now how about the rest of us who actually work with the Constitution's text and structure. Does the "judicial power" and Klein's principle that Congress cannot tell the Court how to decide a case include how the Court writes and structures its opinions resolving those cases? Is opinion length akin to the sources of law the Court can rely on (e.g., requiring originalism or prohibiting international law)?

Leaving comments open for thoughts.

The future of New York Times and SLAPP laws

A federal judge last week dismissed Donald Trump's $ 450 million lawsuit over CNN describing his post-election statements as "the Big Lie." Despite some gratuitous shots at New York Times and the media* (some judges can neither help themselves nor resist the temptation to audition for a higher court), the court recognizes that NYT has nothing to do with this case because every statement at issue is opinion rather than provably false fact and political motivations do not affect speech's constitutional protection. That is, this action fails not because of actual malice but because of the entire First Amendment edifice.

[*] And truly gratuitous praise for the affirmative-action decision, which has nothing to do with anything. Again, cannot help themselves.

The case also illustrates a separate point about anti-SLAPP laws and their importance in protection speech. In my view, the special dispositive motion, which does not apply in federal court in the Eleventh Circuit, is not necessary to deter frivolous defamation suits and protect speakers against the costs and burdens of litigation. Rule 12(b)(6) suffices in most cases to end litigation quickly and without discovery--thanks to Twiqbal (it is hard to plead falsity and actual malice) and to how much of the First Amendment regime creates questions of law for the court (such as whether a statement constitutes fact or opinion).

The real protection comes from awarding the prevailing defendant anti-SLAPP attorney's fees. That alleviates the costs (if not the distraction) of litigation, regardless of how long it goes. One judge in the Southern District has held that Florida's anti-SLAPP law disentangles fees from the dispositive motion--a defendant can recover fees when the court finds the suit without merit and filed for an improper purpose, regardless of the mechanism for that finding. This contrasts with other states in which defendants recover fees when they win on the special anti-SLAPP motion (which cannot be brought in most federal courts). Waiting to see if CNN seeks fees and whether this judge follows his district colleague as to the availability of fees.

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Bryce Newell's 2023 Meta Rankings of Law Journals

Just in time for the new season (barely).

Belkin & Tushnet endorse judicial departmentalism

Aaron Belkin and Mark Tushnet authored an open letter urging Pres. Biden to pursue "popular constitutionalism" where "if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations." They explain:

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

The recent equivalent would be continuing to pursue affirmative action in higher education (outside Harvard and UNC) and elsewhere. Belkin and Tushnet push that point:

President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.

They lose me on that last point. I like the idea that the President should explain his intention and why, so the public sees and measures the competing constitutional approaches. But I do not agree that the President can (or should) do this only where the Court's interpretation is "egregiously wrong." That retains a whiff of judicial supremacy--the Court gets the last word except in some unique and extraordinary circumstances.

Better to say the President can pursue his competing interpretation in all cases where he believes appropriate. The limiting principle on the power (which Ilya Somin argues is absent) is not the egregiousness of the case. The limiting principle comes from the inevitable litigation challenging the President's actions and the likelihood that the Court will adhere to its view and reject the President's view in issuing a new judgment in a new case. And I do not read Belkin and Tushnet to argue that the President can ignore a judgment in a specific case.

Of course, while Democrats talk about whether to do this, Republicans do it. The Alabama legislature enacted  a new legislative map that, like the map declared invalid Allen v. Milligan, contains one (rather than two) majority-Black districts. This has liberals up in arms about a return to the 1960s and Alabama ignoring the Supreme Court. But isn't this what Belkin and Tushnet argued for?

Accepting that government can ignore an opinion but not a judgment, the answer depends on what we understand as the "judgment" in Allen. Was the judgment that Alabama must enact a map with two majority-Black districts because § 2 requires two such districts, given the population in Alabama? Or was the judgment that Alabama's prior map violated § 2 and that Alabama must enact a new map that conforms with § 2, even without a second majority-Black district (the enacted map has a second district that is about 40 % Black)? If the latter, Alabama is within its power (as Biden is under the Belkin/Tushnet argument) in enacting what it believes to be a proper map and triggering a new round of litigation. Alabama might (will?) lose that litigation, if the Court believes Allen's logic and reasoning requires a second district. But that does not mean Alabama crossed the line into defying the injunction.

JOTWELL: Endo on Young & Billings on access to justice

The new Courts Law essay comes from Seth Katsuya Endo (Seattle), reviewing Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Systems, 2023 Utah L. Rev. 487.

303 is the new Citizens United

That is, critics will misconstrue what it said, misconstrue its context in an effort to make it more evil (that already is happening), blame it for every bad thing that happens going forward, and treat it as different from every other Supreme Court decision in its potential for lower-court mischief. On that last point: Every incorrect Supreme Court decision (i.e., decision with which I disagree) can spawn new incorrect decisions (i.e., decisions with which I disagree); that is the nature of precedent. 303 critics have seized that possibility to suggest 303 was somehow uniquely wrong--wrong in a way beyond most wrong decisions--such that the Court never should have decided the case at all (because of the above misconstruction of its procedural context).

The story of the Michigan hair stylist prompted Chris Geidner to label 303 as uniquely bad because 2023 is full of horrible people doing or threatening horrible things to the LGBTQ+ community--it is certain that bad people will try, and courts may allow,  to use the decision to further bad ends. Again, it seems, beyond what we expect from any decision we do not like. I agree with much of what he argues, including that public accommodations laws should survive strict scrutiny even as to expressive products and services, something 303 never analyzed. But several points reflect an elevation of 303 to demonic status (call it 303 Derangement Syndrome).

    1) Life is bad in the 2o jurisdictions that do not protect LGBTQ+ people in their public accommodations laws. But it was bad before 303 and 303 did not worsen that. As a descriptive default, all discrimination in places of public accommodation is lawful unless government enacts a law changing that default. In a state without statutory protections for LGBTQ+ people, it has always been legal for a private business to refuse them service because of that status. 303 does not change that. Perhaps it "empowers" bad people to try new bad things. But they could do that all along. And the air of anti-LGBTQ+ bigotry might have provided sufficient incentive without SCOTUS input.

    2) Bigots will push the boundaries and it might work. Courts may interpret and apply 303 more broadly than Dale Carpenter suggests it should be. Or people may not sue. Or the state civil rights commission may not pursue the claim. (The fact of two-prong enforcement makes some enforcement likely). Or the salon owner may appeal. But what makes 303 different? That is how this works--a court issues a decision, the public and other actors conform their conduct to that decision, new conduct spawns new litigation, and that litigation takes time (and money and effort) to resolve itself. We cannot wring our hands over this because the Court reaches a conclusion we do not like, not matter how deep our distaste for the decision. The subsequent process does not render the precipitating decision illegitimate.

Geider closes with this:

To argue that a narrow reading of 303 Creative v. Elenis is the path forward is certainly a good argument, but it’s not a fact.

Those concerned about the implications of the ruling and the rippling consequences that could become a post-decision aftershock are speaking from a point of persuasion based on our recent experience. And advocates and others seeking to protect robust enforcement of nondiscrimination laws should respond accordingly.

Of course advocates should respond--whether by driving that salon into the ground through public criticism or by pursuing litigation and enforcement. And I do not read Carpenter or anyone else as suggesting otherwise. Again, however, why is this decision different from all other decisions?

Stupid bigots, smart(er) bigots, and 303

The owner of a Michigan hair salon announced that she would not serve trans customers, advising them to go to a pet groomer. The public response caused her to take her social media private.* From the left, the theme is "what hath 303 wrought?" From the right, the theme is "stop overreacting or misconstruing 303--the plaintiff there and the Court disavowed refusal to serve based solely on identity."

[*] The public exercising their First Amendment rights to criticize someone's offensive speech and conduct? Or censorship and cancel culture? You decide.

As framed, this falls outside any possible good-faith application of 303, because she described it in terms of the customer's identity as trans--a categorical refusal to serve a person because of that person's identity that the Court disclaimed. Some respond with, essentially, "Lower Court Judges Gone Wild"--forget what 303 said, this is what crazy business owners will try to do and what courts in red states will allow them to get away with.

But I do not believe this case depends on a parade of horribles. Instead, it requires a smarter bigot with a better framing. Imagine: "Through my hair styling customized to each client, I use my unique expressive artistry and work closely with each client to help them express themselves and the image they wish to present to the world. And by giving a feminine hairstyle to a trans woman (whom I believe a man as a matter of biology and biblical teaching), I am compelled to send a message that this person is a woman, something I reject." That does not sound meaningfully different from Lorrie Smith making a web site telling the marriage story of a same-sex couple and thereby being compelled to send a message that two people of the same sex can marry.

Dale Carpenter offers a hopeful take on 303: It applies to products and services that are custom-made and expressive where the objection is to the message sent within the product or service. That seems to cover hair styling--it is creative and thus expressive and every hair cut is unique to that person. Perhaps it depends on whether the stylist insists that her styling match perceived gender--she will not give a "male" haircut to a cis person; this might separate the refusal of service from the client's trans identity. Or on the fact that once the client leaves the salon, the stylist's participation is not presented to the world, contra the web site that identifies 303 as the creator.

I appreciate Dale's attempt to read the decision narrowly and agree that the demand for line-drawing in hard cases is not unique to this case. I think this case shows that intelligently framed objections could cut a large swath.

A comment on Northwestern football and student journalism

I stopped watching football about a decade ago, finding the game too gladiatorial. For about five years I maintained a "Northwestern Football" exception, but that dissolved. Nevertheless, the reports of hazing and other misconduct within the program and Fitzgerald's firing sadden me. Fitzgerald was Northwestern football and a successful football team (even if somewhat sporadically) did great things for Northwestern as an institution. I do not know what happened in the lockerroom over the years--my best guess is the stories are substantially true, but how people looked at them ran the gamut, at least until the team stopped winning.

The Daily Northwestern story published on Saturday marked the turning point in this. Prior to that, it appeared the situation would resolve quietly--the university received an investigatory report that found the allegations "largely supported by evidence," suspended Fitzgerald for two weeks in July, and planned to keep the details internal. The Daily story* publicized the details, while opening the floodgates to more stories, more people, and more details.

[*] One of the four bylined authors is a friend's daughter.

Many people frame this as Northwestern's journalism program prevailing over Northwestern's football program or Northwestern's football program being no match for Northwestern's journalism program. This is pedantic, but I do not like the framing. The Daily Norhtwetsern, which reported and published the stories, is independent of Northwestern's Medill School of Journalism (of which I am a graduate). Medill does not run the paper; Daily reporters need not be journalism majors; and most journalism majors (including myself and many of my friends) never worked for it. I do not know much about the publication process or about any faculty input into the publication process, but I expect the students made the key decisions on their own. So I am glad for the praise on student journalists and on the students running the Daily, but separate it from the journalism school.

Fighting universality

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

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

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

Injunctive absurdity

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

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

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

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

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

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

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

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

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

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

303 and SB8 (Update)

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

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

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

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

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

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

Final orders list

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

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

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

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

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

Predicting tomorrow

On Sunday, Jonathan Adler predicted the authors and outcomes of the major cases. So far, he has done well on authors--he called Harvard (Roberts), Moore (Roberts), Groff (Alito), and Counterman (Kagan); he missed on Mallory (Gorsuch, not Alito) and Abitron (Alito, not Sotomayor).

Three cases remain to be decided tomorrow--303 Creative and the student loan cases. Adler predicted Gorsuch would write 303 and Roberts the student loan cases. Those predictions look good right now. One more data point on 303 Creative--it is the lone remainder from the nine December cases and Gorsuch is the only Justice not to write from that sitting.

Bad news for public accommodations laws and an appropriate understanding of the First Amendment.

Mootness and jurisdiction in Moore

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

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

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

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

Does that matter?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Florida Supreme Court displeased with federal judicial overreach

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

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

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

As to the district court, the state court said:

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

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

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

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

TV Rec: Primo

I don't usually do this, but here is a TV recommendation (and one final non-SCOTUS post before what I expect will be a wave of bad decisions beginning at 10):

Primo, on Amazon's Freevee. It tells of a Mexican-American teen in San Antonio living with his single working-class mother and his five quirky uncles. It is a genuinely nice story about a decent kid that is laugh-out-loud funny. It is based on the life of writer Shea Serrano, who co-created it with Mike Schur. Worth watching this summer.

And now, back to SCOTUS doing horrible things to the law.

Getting particularity right, legally and practically

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

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

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

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

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

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

The inanity of "Debate Me"

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

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

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

This is nonsense.

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

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

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

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

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

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

Trump is not a legislator engaged in legislative speech or debate

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

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

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

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

JOTWELL: Bookman on Weinstein-Tull on traffic courts

The new Courts Law essay comes from Pamela Bookman (Fordham) reviewing Justin Weinstein-Tull, Traffic Courts, 112 Cal. L. Rev. ___ (forthcoming 2023), the latest article (and Courts Law review essay) to consider life in lower-level state and local courts (and outside the federal courts on which many scholars and scholarship focus).

Brown or Briggs?

The descendants of the plaintiffs in Briggs v. Elliott, the companion to Brown out of South Carolina, have petitioned SCOTUS to redesignate it as the lead case for that opinion. I was not aware of the story behind how the five cases reached the Court and formed that case, or of the historical debate over whether Brown became lead case because of bureaucratic choice or various political calculations.

What is a slippery slope argument?

The Freakonomics podcast did an episode on slippery slope arguments. It featured Eugene Volokh, Dahlia Lithwick, and a philosophy professor. Eugene wrote a great article on this; his post links to two versions of the article and blog posts serializing it.

I agree with Eugene that episode was interesting. But it went off the rails for me by spending a lot of time on distinct argument that I do not believe qualify as slippery slope. It features the president of the Campaign for Tobacco-Free Kids discussing opposition to early smoking bans, which featured arguments that prohibiting indoor smoking would destroy the restaurant industry or that prohibitions on smoking on planes would lead to plane crashes and violence by tobacco-addicted pilots and passengers.* Lithwick talks about CRT bans and book bans as descending into "feelingsball"--people support the bans because learning CRT will make white children feel bad about themselves or reading books about queer kids will lead to bad behaviors. She blames yellow journalism for the monetization of scaring people, even affecting how we discuss weather ("bomb cyclones" and "thunder snow").

[*] The initial ban applied to short (90-minutes-or-less) flights, on industry arguments that tobacco addicts could not last any longer without a smoke.

These are arguments about bad consequences--Policy/Law/Practice A will produce bad results or results I do not like. We can argue they are "catastrophizing"--warning of extreme (and unlikely) and scary consequences ("reading these books will turn your kids queer," "banning smoking will cause pilots to crash planes"). We can even argue they are examples of moral panics, which goes a step beyond catastrophizing bad consequences. Historic yellow journalism and modern-day "clickbait" journalism trade in these arguments--look at all the bad things that will happen from this practice or this law. And the weather example has nothing to do with anything--making weather sound dramatic does not really cause any conduct.

None is a slippery slope argument, at least as I understand the phrase and as Volokh uses it in his article. Slippery slopes argue that allowing Policy/Law/Practice A leads to Policy/Law/Practice B--if we allow gun registration, then government will confiscate guns; if we allow prohibitions on swastikas, then government will prohibit the Confederate flag or BLM flag. That is different from arguing that prohibiting swastikas will anger Nazis and cause them to riot or that gun registration will create a dangerous black market in illegal guns. Slippery slopes are about "slippage" from one set of rules or conduct to new rules or conduct, not from one rule or conduct to the consequence of that rule or conduct.

§ 1983 enforcement survives, for the moment

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

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

Policy and Identity

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

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

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

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

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

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

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

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

Preferred first speaker, again

Reading (PA) police arrested a man for disorderly conduct for reading Bible verses (it sounds as if through a bullhorn or other amplifider) on the sidewalk alongside the Pride rally. Police insist the charges arose from the volume of his speech and not from reading the Bible. Several videos here.

This is the preferred first speaker in action, but in the traditional public forum of streets and sidewalks rather than a reserved lecture hall. The video shows the arresting officer asking the man to respect the ralliers and to "let them have their day." Adam Steinbaugh, an attorney for FIRE, makes two correct points: 1) "[S]peaking loud enough to be heard by a noisy crowd isn’t unreasonable. The police weren’t arresting people cheering at the event. That’s a stark display of viewpoint discrimination" and 2) "Speech people find offensive isn’t 'inconvenience.' It’s a manifestation of the 'verbal cacophony' that shows that the First Amendment means police can’t answer “inconvenient” or offensive speech with handcuffs."

Note the difference between Steinbaugh's (again, correct) analysis of this case and most discussions of Stanford, Yale, Hastings, and other cancellations-but-shout-down. No one has suggested that the Stanford students acted reasonably in jeering, snapping, and booing Judge Duncan, at a volume to be heard over Duncan's speech. No one has suggested that the First Amendment accepts "verbal cacophony"--quite the opposite, with everyone insisting the First Amendment demands civil discourse and the Stanford studewnts quietly and respectfully listening to what their better has to say, then perhaps asking polite-if-pointed questions.

So why the argument for different treatment? "Firstness" (again, the basis for the arrest) does not explain it; the ralliers were first speakers in that space by virtue of their permit; the Bible-quoting arrestee was an audience member responding and objecting to the first speaker, by Bible verses rather than snaps and jeers. "Shouting down" does not explain it; the arrestee engaged in counterspeech, at a volume and in a form that might make it difficult for the first speakers (the rallygoers) to speak as they wished or to be heard by willing audience members. He did not attempt to engage in civil discourse and he certainly did not intend to allow the ralliers to have their say in the manner they wished.

The remaining distinction involves the type of forum involved--designated-and-limited as opposed to traditional and open. Or we must sharply define what space constitutes the forum. Perhaps the lecturer's forum is the entire lecture hall (stage and audience area), while the rallygoer's forum is the sidewalk and parade route but not the adjacent sidewalk. (This supports the argument that loud protesters can stand outside the campus building--a distinct forum--and heckle to their hearts' content).

The point is the officer was wrong to arrest this guy (although he likely enjoys qualified immunity). And these cases are more complicated than everyone suggests.

JOTWELL: Levy on George, et al. on SCOTUS Clerks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tracey E. George, Albert Yoon, & Mitu Gulati, Some Are More Equal Than Others: U.S. Supreme Court Clerkships, an empirical study of who clerks for SCOTUS, where they come from, and where they go.

What is the Court planning for § 1983 "and laws"

My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.

The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.

We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.

More graduation free speech nonsense

Popehat calls out BU President Robert A. Brown for a lack of commitment to free speech dressed in cancel-culture/free-speech-warrior bullshit. I wish I could say it any better than he did.

CUNY Law graduation: Everyone screws up a free speech problem (Updated)

I missed this story from two weeks ago, although the latest fallout continued yesterday. The student-chosen student speaker at CUNY Law's May 12 graduation, Fatima Mousa Mohammed, took aim at Israel and many other targets. People have responded in expected ways. Also as expected, no one covers themselves in free-speech glory.

• The three minutes drawing the most attention can be found here--Mohammed refers to "Israeli settler colonialism;" accuses Israel of, essentially, war crimes; accuses CUNY of supporting various evil causes; and praises CUNY Law (students and faculty) for supporting BDS. She later urges fights "against capitalism, racism, imperialism and Zionism around the world." Nothing in this speech falls outside of First Amendment protection and I presume school administrators either read and approved the speech or imposed no limits on its content.

• Which parts of the speech cross into antisemitism? For me, the obvious point is when she singles Zionism out as a unique evil to fight, distinct from racism and imperialism; if Zionism means the existence of a Jewish state (irrespective of Israel's current government and policies), that statement singles out Jews as a unique group not entitled to a homeland. Many people consider BDS antisemitic for similar reasons--it singles out Israel, and thus Jewish citizens and businesses, from all other wrongdoer governments. As for the rest, "Israeli settler colonialism" reflects her characterization of Israeli actions and policies; I disagree with the characterization and doubt the truth of much of what she describes. But does that (and can that) reflect protest of the Israeli government without crossing into Jew hatred? I leave comments open, because I confess that I remain unable to tell the difference in the gray areas.

• It appears students, including Jewish, support her and her words. CUNY's Jewish Law Students Association issued a statement (co-signed by Students for Justice in Palestine and other student groups) condemning Zionism as inherently racist and imperialist and condemning outside critics lobbing "absurd and false claims of antisemitism" against the "wishes of the majority of CUNY Law’s Jewish students." To be sure, CUNY Law's student body does not reflect a typical audience, including of American Jews. And query whether either group speaks, as the letter claims, for the majority of Jewish law students.

• What should objecting audience members--particularly graduates--have done in response to the speech? Should it be permissible to boo, jeer, heckle, etc. and up to what point? (Mohammed pauses at points because of audience cheers, so audience reaction obviously is fair game). Should they have walked out, thus missing a singular event in their lives? Recall that the anti-cancel-culture folks insist that either  is inconsistent with a commitment to free speech, which requires that people hear speakers, even without the opportunity to respond, so conversations can happen another day.

• Critics' reactions demonstrate, again, why few people truly believe in free speech as a principle, regardless of their rhetoric. CUNY's Chancellor and Board issued a statement yesterday that begins with this gem:

Free speech is precious, but often messy, and is vital to the foundation of higher education. Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.

Ah, yes, "we believe in free speech, except when we don't like that speech." Since hate speech does not fall outside free speech protection, this is an inane statement. Worse, it is too generic. The problem with the speech, if any, is its antisemitism. So to call it hate speech--without identifying the particular racial/religious group attacked and without criticizing Mohammed for that specific form of hatred--shows the Board's unwillingness to specify and call out antisemitism (if that is what they believe this was) by name when it sees it.

Similarly, Republican legislators give lie to their supposed free-speech commitments by calling for CUNY to lose federal funding because students engage in constitutionally protected speech and the public university does not prevent them from doing so. I await Rep. Lawler's support as anti-LGBTQ+ forces emerge on campuses.

• What is the point of a graduation speech? Free speech aside, did Mohammed overstep by making the event about herself and her causes rather than those of her classmates? Students seemed to support her and must have suspected what she might do when they selected her. Mohammed framed a students v. administration narrative (all the things students achieved in the area of social justice, in the face of administration opposition); she thus likely viewed herself as speaking for, and reflecting the causes of, her classmates. But should this type of speech avoid controversy in its nature, in deference to the least-supportive member of the graduating class for whom this represents an important day and milestone?

Update: FIRE sent a letter to the chancellor pointing out the stupidity of "hate speech is not free speech." The letter then explains why CUNY, as a state institution, cannot punish Mohammed for her speech. This seems an odd tack, however, because I did not read the Board statement as threatening any sanctions against Mohammed.* I read the statement as a poorly written attempt to criticize Mohammed and to get on the right side of public officials (Rep. Lawler, NYC Mayor Eric Adams) criticizing Mohammed. In other words, CUNY engaged in government counterspeech., which I hope we agree is consistent with the First Amendment.

[*] Query what sanctions it could impose if it wanted to. I doubt CUNY could withhold her degree at this point, although I guess there is a nice question of when the property interest in the degree vests--when diploma is in hand, when the President completes the ceremony and allows the graduates to move their tassels? It could try to interfere with her Bar admission, although that is not CUNY's decision.

Life without the Infield Fly Rule

(H/T: Michael Risch, I think from last season).

Video here; a YouTuber's analysis of why the ump erred in failing to invoke.

The play illustrates why we have the IFR. The ump almost certainly did not invoke because the ball was not high enough. The commentator argues that height alone should not matter. It was not a line drive and landed directly in front of the shortstop who barely had to move, thus implicating the rule's purposes (or evils).

One other thing as you watch the play: The best move for the runner on second, recognizing non-invocation, is to retreat to second base and hope that the second baseman catches the flip and steps on the bag before tagging him. Stepping on the bag puts out the runner on first, but removes the force, allowing the runner on second to remain. But the runner must have the wherewithal to process that in an instant. And the second baseman must have the wherewithal to stay off the bag while catching the flip, tag the runner, then step on the bag--and to process that in an instant. So there are "counters" to the intentional non-catch, but none that players can reasonably pull off.

What is the trouble with SCOTUS reporting (and with SCOTUS)?

Slate's Amicus Podcast hosted a live conversation with Dahlia Lithwick, Mark Joseph Stern, Jay Willis, and Elie Mystal. The conversation centered on the failures of the SCOTUS press corps. Press failures include: too much focus on the law of the opinions (they liken it to how science reporters cover NASA); failing to identify the "reality" beneath those opinions, whether by exposing the Court's misleading presentation of facts (Kennedy) or by positioning one case within a larger political, ideological, and jurisprudential trend; failing to write about the real-world consequences of the decisions; failing to report on and follow individual justices (compared with the extensive coverage of members of Congress and even small legislative actions); and failing to write about the behind-the-scenes influences on the Justices (Harlan Crow, Leonard Leo, ADF, et al.).

I enjoyed the program, although I did not agree with a lot of it. Some reactions after the jump.

• There is an electoral/public accountability component to how the press covers Congress (and members of Congress) absent in covering the Court. The press provides information to the public which, we hope, the public uses in deciding whether to keep that person in office. By contrast, there is (I think) continued acceptance that no one (not Congress, not the public) should remove or sanction judges for their decisions. Those (including me) who would like some form of term limits do not want those limits to turn on agreement or disagreement with substance of decisions. Broader (i.e., beyond the opinion) coverage of the Court allows for public awareness and criticism of the Court, with whatever effects public opinion might have on the Court. It perhaps pressures Congress to do something about an out-of-control Court. But that something is not removal of individual members, unless progressives have abandoned the conclusion that the Senate properly acquitted Samuel Chase and that "Impeach Earl Warren" campaigns wrong.

• One SCOTUS decision resolves one case involving one dispute between discrete parties (e.g., whether Mississippi's law can be constitutionally enforced against Jackson Women's Health patients or whether this school could sanction this football coach for these activities). The decision includes an opinion that affects other real-world actors. But the opinion's effects on other actors and its consequences as to them are diffuse, prospective, unknown, and contingent at the time. It thus is impossible for reporters to write about them in covering argument or decisions. At best, reporters in the moment can speculate (and report speculative cases) about what could/might happen (subject to accusations of engaging in unreasonable parades of horribles). Reporting on consequences beyond the parties before the Court requires subsequent follow-up reporting. That reporting should happen, although we might question whether Totenberg, Liptak, Biskupic, et al., should do it and when. In other words, no one knows the specific effects of a SCOTUS case in the moment--it depends on what governments and lower courts do in response. Of course, we could raise the same argument as to congressional reporting--no one knows the specific consequences of a piece of legislation and someone should report on the on-the-ground effects of the enacted law, although the question is who and how and when.

Take Dobbs. States' race to impose the strictest laws was predictable and that prediction should have been part of the coverage (and might have been--I avoid most popular coverage of the Court). But the press could not have written specific stories about specific instances by specific states affecting specific people, as the panelists seem to demand. No one knew which states would enact or enforce which laws as to which people and in which circumstances. When Dobbs leaked in May or issued in June, no one could have written about Mifepristone or about Indiana sanctioning a doctor for performing an abortion on a 10-year-old rape victim from Ohio or about Idaho outlawing travel to other states.

Relatedly, lower courts--thousands of judges on hundreds of courts spread across the U.S.--determine the broad on-the-ground effects. By focusing on how media coverage of SCOTUS fails as opposed to how media coverage of of the judiciary fails, they perhaps commit the error people accuse legal educators of committing. In any event, the handful of SCOTUS reporters cannot cover the entire judicial system, although that is the locus of the large practical effects the panelists want covered.

• They spend a lot of time on the media's failure to report on the supposed outside influences on the Court and the Justices. Put Crow to one side--if that reporting bears out, it may reflect the sort of not-good behaviour warranting impeachment or resignation. The speakers criticize failure to report on the ADF and other conservative advocacy groups spending money (from specific wealthy people with an ideological goal) and operating campaigns to find plaintiffs and bring cases with the goal of overruling affirmative action, creating religious exceptions to LGBTQ+ protections, weaken environmental protections, etc. Criticizing that failure to report implicitly criticizes these groups' litigation efforts--they engage in nefarious conduct and the press commits journalistic malpractice by not writing about and exposing them and their nefarious conduct.

But much of the constitutional law that progressives cheered was created through similar litigation campaigns--advocacy organizations sought out plaintiffs to bring lawsuits challenging various laws with the goal of obtaining SCOTUS review and decisions establishing their favored constitutional provision. And the right resisted those efforts by attacking the groups bringing the cases and trying to bring them to heel. Virginia applied its laws against soliciting legal business to the NAACP's efforts to recruit parents to bring anti-discrimination suits. States investigated and prosecuted advocacy groups under anti-Communist laws, amid questions about who funded these organizations and their advocacy efforts. Lithwick and company would not argue (I presume) that the press failed 60 years ago in not exposing whether "communists" funded the NAACP and its efforts to overrule Plessy and invalidate Jim Crow.

Once again, progressives criticizing conservative impact litigation must distinguish these efforts from prior movements. "I disagree with current efforts but like past efforts" is not a principled distinction.

• Stern offers an interesting take on press coverage of 303 Creative as the latest step in an advocacy organization's campaign to carve religious exceptions into public-accommodations laws. Past cases pitted competing "rights-holders" receiving media coverage--e.g., Jack Phillips on one side and the same-sex couple who ordered the wedding cake on the other. But the posture of 303--Lorie Smith has never created a wedding web site and never been asked by a same-sex couple to create a wedding web site (Stern said it's because she sucks as a web designer). So the designer is the only person the media can cover and they have done so, in the usual soft-focus way; no specific person sits on the other side. I doubt that affects the Justices or the outcome; it affects how the public perceives the case and its consequences.

Stern suggests the one-sidedness shifting media coverage in Smith's favor illustrates why the case is bullshit. Smith lacks standing* because she faces no meaningful, imminent, or non-speculative threat of having state law enforced against her. No one--least of all two gay men, according to Stern--has or is likely to ask her to design their wedding web site or to complain to the state civil rights commission about her failure to do so, both of which are necessary to trigger any enforcement of the law against her. This is a good line, although LGBTQ+ people keep ordering from Jack Phillips.

[*] Or suffers no constitutional violation, in my preferred framing.

Law meets entertainment news

A fun confluence. In April, a divided Ninth Circuit panel held that a state law limiting honking of car horns to warnings did not violate the First Amendment as applied to a person honking in support of a political protest. The court declined rehearing last week.

The issue, and thus the decision, has merged with the day's leading pop-culture story--the WGA strike. Burbank police have placed signs near Disney and Warner Bros. studies announcing that "excessive horn use" violates the vehicle code, in response to neighbor complaints about passing drivers honking in support of picketing writers. Applying the law in this context illustrates why Judge Berzon's dissent had it right. In this context, the government interest is less traffic safety than noise--and there is no difference in the noise from car horns as from the other noisemaking associated with the pickets.

Thick-skinned judges

From Judge Joshua Wolson (E.D. Pa., with whom I clerked on that court), dismissing a lawsuit by a state judge against the Daily Beast for describing her as "QAnon-linked:"

Being a Judge is a great job. But it comes with downsides. What we do, we do in public, and we subject ourselves to public discussion and criticism of our decisions, both fair and unfair. Federalist No. 78 noted the importance of Judges being independent of the “effects of those ill humors, which are the arts of designing men, or the influence of particular conjunctures [that] sometimes disseminate among the people themselves.” The Federalist No. 78 (Alexander Hamilton). That remains just as true today as it was in the 18th Century. Being a judge requires a thick skin and a willingness to make decisions in the face of criticism, even unfair criticism, and to remember that sticks and stones may break my bones, but names can never hurt me.

That view of judges needing thick skin and the ability to handle even unfair criticism and continuing to do the job departs from the attitude expressed by Justice Alito, Judge Duncan, Judge Ho, and others, demanding sanction for or defense against their critics. Is it easy to say this when discussing another judge reacting to criticism (in rejecting that other judge's efforts to silence those criticism) than when handling unfair criticism directed at oneself? (Note that I am not attributing that position to Judge Wolson or suggesting he would react differently to criticism targeting him).

Dodgers reinvite Sisters (Update)

The Dodgers have reversed course and reinvited the Sisters of Perpetual Indulgence to the team's June Pride Night, after other LGTBQ+ groups threatened to pull out of the event. As far as I can tell, FIRE never said a word.

Update: The LA Times' LS Granderson has thoughts (may be paywalled), as does the Catholic League.

The presence of Justice Kagan

Gerard suggests Justice Breyer's absence explains the nastiness of the exchanges in Warhol (and deteriorating relationships among the Justices generally)--he "was a senior and avuncular person who liked to broker compromises. You can't easily replace the social function that sort of person fulfills." Josh Blackman says the same.

But wasn't the ability and desire to broker compromises one of Kagan's selling points, based on her time and efforts as HLS dean? Is she too young? Too junior to play that role on the Court (she is the median justice in seniority)? Too caustic a writer? Or does this involve a different type of compromise--not across ideological lines but across temperament, between two people who generally align.

Kagan on Velazquez and Bacon (and Lain on Cortada)

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

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

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

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

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

 

 

More on FIRE

I hope I am premature in my anticipatory criticism of FIRE; time will tell. I follow FIRE's statements pretty closely and will update (and eat crow) if it says anything. But two further points:

1) FIRE recently changed its name from Foundation for Individual Rights in Education to "Foundation for Individual Rights and Expression." This does not strike me as mission creep; this represents an intentional branching and rebranding beyond the educational context. As I understand it, FIRE and its supporters believe the ACLU has wavered in its commitment to free expression in the face of contrary commitments to equality and The Trump Resistance; they see themselves filling the gap in protecting free speech throughout society. So this is, in fact, something on which they might weigh in.

2) FIRE's Twitter thread on the Chappelle story reveals not-happiness with the comedy club's choice--dropping everyone's favorite word and wondering whether the club would have "canceled Prince because Tipper Gore and the PMRC didn’t like ‘Darling Nikki’." That is, the thread takes the club to task for "canceling" a speaker in deference to lefty critics, where it would not have done the same to conservative critics of a lefty icon such as Prince. (The answer is probably not. But private actors get to make such choices and distinctions in the name of their expressive preferences).

But if it is wrong as a matter of a "culture of free speech" (their words) to reject Chappelle but include Prince--as FIRE clearly believes--it is wrong to criticize the club for rejecting Chappelle while ignoring the Dodgers rejecting Sisters of Perpetual Indulgence. FIRE might argue that a comedy club, as an "artistic and culture venue[]," carries a unique mission. That seems a thin reed, putting aside that sports teams and stadiums should qualify as "culture venues" that draw a lot more people than comedy clubs.

Sotomayor and Kagan

I do not know enough copyright law to comment on Andy Warhol Foundation v. Goldsmith (I hope one of my colleagues will write something on it). But what is happening between Sotomayor (for a 7-person majority) and Kagan (dissenting with Roberts)? Their exchanges seem uniquely sharp and direct and personal (each accusing the other of being, essentially, clueless about the law), especially for a non-political case between two justices who tend to agree on things.

The majority refers to "the dissent" more than 40 times and responds to points in 11 footnotes.

Kagan ends the intro to her dissent with the following footnote:

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of come-back footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what  follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

I also wonder how much Roberts influenced the dissent's style. The opinion is loaded with references and allusions, a common feature of Roberts' writing (even more so than Kagan). The two together cannot help themselves. Unsurprisingly, the dissent is a fun read (again, I pass no judgment on the correctness of its analysis).

Some kind of culture

So: A large organization plans to host and honor a particular group. People, including political leaders, object to the honoree's expression and call for the large organization to disinvite the honoree because they object to, and find offensive, that expression. The large organization disinvites the honoree.

According to FIRE and others, this is bad--cancel culture and hecklers' vetoes and woke-mob-hive-mind silencing, oh my. They deem it bad when a Minneapolis comedy club canceled Dave Chappelle shows. They deem it bad when students shout down campus speakers. They deem it bad when colleges disinvite commencement speakers.

The Dodgers announced they had removed the Sisters of Perpetual Indulgence from its Pride Night event, scheduled for June. The group describes itself as a "'performance, charity, and protest group that features drag as well as queer and trans nuns that “promote human rights, respect for diversity, and spiritual enlightenment.'” Marco Rubio,* Fox News, and the Catholic News Agency describe it as "an anti-Catholic hate group which exists to desecrate and degrade the Catholic faith" furthers "modern, secular, and indeed anti-religious 'values.'" (Note the scare quotes).

[*] Who insists faith in God is at the "heart" of our Nation's values, which might be news to those who drafted the constitutional provision excluding religion as a qualification for public office, to say nothing of the First Amendment.

Of course, the protesters in those other, censorious "cancellations" directed similar criticisms towards the targeted speakers--Dave Chappelle or Ann Coulter degrade the humanity of LGBTQ+ people. Yet Rubio, Fox, and their fellow travelers scream about wokeism gone wild destroying free expression when anyone seeks to exclude them from any space.

I do not expect consistency from Fox News or Marco Rubio; their reactions provide further evidence that their support for free speech ends where their agreement with the speaker ends. FIRE, on the other hand, purports to support free speech as a principle and touts its willingness to protect speech (and criticize supposed censors) from both sides. It often gets lumped in with conservative free-speech opportunists, which is mostly unfair.  While I believe FIRE sees too much equivalency left-wing law students' obnoxious and disruptive noise and right-wing government's legal speech restrictions, it genuinely treats similar speech restrictions by both sides in a similar way.

This becomes something of a test. If a comedy club disinviting Dave Chappelle because of his (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents, then the Dodgers disinviting the Sisters because of their (offensive-to-some) expression is a free speech problem drawing concerns from FIRE and other free-speech proponents.

Preclusion in the news (Update)

In his CNN-sponsored political rally, held the day after a jury found him liable to E. Jean Carroll for sexual abuse and defamation, Donald Trump  called Carroll a "whack job" and her allegations a "fake story." Carroll is contemplating bringing new claims for defamation.

Any lawsuit will continue Trump's trend of introducing the public to otherwise-obscure legal concepts--this time, issue preclusion. Trump in the new litigation will be bound by the jury's necessary conclusion that he did sexually abuse Carroll in that dressing room; the parties must litigate the remainder of the case (were his denials opinion, is "whack job" opinion, what are her new damages) in light of that established fact. But all the elements are satisfied--the jury found that he abused her, the finding was necessary to the verdict, Trump had a full-and-fair opportunity to litigate, and we actually have mutuality.

It plays an unusual role here. Kyle Rittenhouse has made noise about bringing defamation actions against those who continue to call him a murderer. Those claims fail for several reasons, including that these speakers are not bound by the jury's conclusion that Rittenhouse acted in self-defense and can speak contrary to that. Trump--as a party to the case--loses that luxury.

Update: Ken White on Serious Trouble discusses a different wrinkle (while calling the entire thing a law school exam)--whether Carroll can sue CNN for airing Trump's comments and whether she can establish actual malice based on the jury verdict. Again, issue preclusion does not apply to CNN--as a non-party to the original suit, it never had a full-and-fair opportunity to litigate and cannot be bound by the prior decision. But it presents an interesting fact question (White believes sufficient to survive 12(b)(6) and probably summary judgment) of how much pause a verdict holding a fact to be true must give a future speaker. And that question perhaps interacts with the standard of persuasion underlying that verdict--whether CNN is less reckless in disagreeing with a verdict finding it more likely than not Trump assaulted her as opposed to a verdict finding beyond a reasonable doubt that Trump assaulted her.

Does PrawfsBlawg do ok on this?

I am a couple weeks late on this, but grading.

Eric Segall offers thoughts on how law schools can push back against political polarization, generating further comments from Ilya Somin.

I want to focus on the fifth of Segall's proposals:

5) The leading legal blogs, including this one (speaking to you Mike) should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.

Is it pollyanna-ish of me to think that we have achieved something like that, albeit unintentionally and without trying. I think our group is genuinely--at least within the parameters of the legal academy but perhaps more broadly--runs the political spectrum. That includes those avoid political topics, those who match different "sides" on different issues, and those who think both "sides" are wrong on some things.

To that end, we as a group are exploring ways to continue and expand the breadth of the conversation on this blog and the featured non-heterogeneous voices.