Saturday, October 28, 2023

More on deactivating SJP

The ADL and the Brandeis Center for Human Rights sent a letter to 200 university presidents, urging them to investigate, and presumably defund and deactivate, student chapters of Students for Justice in Palestine. I mentioned Florida's efforts and FIRE's letter to Florida university presidents. Eugene Volokh argues this turns on a factual question that the public does not know and that the university might know--the degree of coordination between individual SJP chapters, national SJP, and Hamas. Under Holder v. Humanitarian Law Project, federal material support statute does not (and probably cannot) reach independent, non-coordinated speech, even in support of a terrorist organization or its cause and efforts. The question is whether SJP's claim to be "part of" Hamas is real or rhetorical hyperbole and the degree of independence among Hamas, national SJP, and individual SJP chapters.

Needless to say, the ADL letter (like the initial memo from the Chancellor of the Florida State University System) is not as nuanced as Eugene's analysis. It lists a lot of stuff--"'SJP chapters are not advocating for Palestinian rights; they are celebrating terrorism'" and promoted anti-Israel channels--that is pure, constitutionally protected speech. The vaunted SJP "toolkit" encourages fliers, protests, teach-ins, and other events on U.S. campuses. This seems far from the activities in Holder--training designated groups in using international law and international organizations to get things and engaging in advocacy for these groups.

The ADL letter ends with the usual:

We fully recognize and support students’ First Amendment rights to freedom of speech, even odious speech. We remain committed, however, to calling out and speaking out against antisemitism and anti-Israel bias. And we certainly cannot sit idly by as a student organization provides vocal and potentially material support to Hamas, a designated Foreign Terrorist Organization.

Note the key move: It believes SJP is doing two things wrong--providing vocal support to Hamas and (potentially) providing material support. That is, it acknowledges that vocal support is not material support, at least without more. But vocal support for terrorism--just saying out loud terrorism is a good thing or that some act is not terrorism but resistance--should (must?) remain constitutionally protected, even under the broadest reading of Holder.

Posted by Howard Wasserman on October 28, 2023 at 04:51 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, October 27, 2023

Ginsburg on institutional neutrality

Tom Ginsburg (Chicago) urges universities to adopt the Kalven principles of university neutrality towards the events of the day. Ginsburg highlights a couple interesting points. First, "[a]fter many years of speaking out so regularly, schools look defensive when adopting a stance of silence only when a large massacre of Jews occurs." (I made a similar point). Second, departmental statements present larger problems than university statements--junior faculty and grad students feel a greater "need to toe a party line announced by those who control tenure and resources" than by a distant university president, especially in those departments that "seem to treat public-facing statements as being as central to their mission as is research."

Posted by Howard Wasserman on October 27, 2023 at 08:58 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, October 26, 2023

Nazis without antisemitism?

In the Star Trek episode Patterns of Force (included in most lists of top-1o Original Recipe episodes), Kirk and Spock encounter a planet with a government modeled on Nazi Germany. A human history professor (maybe supposed to be Kirk's mentor) established the system because Nazi Germany was the most efficient state in history and he believed that such a state, benignly run, could succeed. The episode makes the generic "absolute power corrupts absolutely" point, but not much more. Kirk and Spock stopped spinning the dreidel and dressed in Nazi uniforms, although the word "Jew" does not appear in the episode (Original Star Trek is a generally secular-and-irreligious world).

The premise of the show is ridiculous in all respects. Nazi Germany was a kleptocracy. More importantly, Nazism cannot be benign--its "race-and-space" idea demands an other to conquer. Still more importantly, for Nazism (as opposed, perhaps, to general fascism) the other must be Jewish. Judaism was the regime's central obsession. The Nazis killed or imprisoned other groups, but not in the same numbers and not with the same focus. For example, some LGBTQ people might escape death by agreeing to fight or to marry and bear children for the Fatherland--certainly human rights violations denying their personhood and humanity. Jews did not enjoy that option.

I thought of this as Ron DeSantis attempts to curry favor with Jews by ignoring the First Amendment to stop pro-Hamas speech and groups. The same Ron DeSantis refused to condemn the neo-Nazis marching in full Nazi regalia (so, again, not general fascists--Nazis) in front of Disney World and other places in and around Orlando. How do we square that? Many of these Nazis (particularly the groups outside Disney; other groups did target area synagogues) do not hate Jews--or at least do not make Judenhass their central tenant. Their central obsession is LGBTQ+ people and the "groomers" at Disney; since DeSantis hates the same group of people, he was not inclined to condemn them. And since he does not associate this group with antisemitism or antisemitic speech, he does not lose credit with the Jewish community for failing to do so when he targets different antisemitic speech from a different group.

Posted by Howard Wasserman on October 26, 2023 at 08:46 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 25, 2023

First Amendment Projection (no, not that kind) (Updated)

GW students projected antisemitic/anti-Israel messages onto a campus building. The messages ("Palestine from the river to the sea") are protected. They were "spoken" from a public space in which they had the projector. The only  issue is that they expressed them by projecting words onto the sign of a university building. So what is the property and First Amendment law for projecting images and messages onto someone else's property? (For the moment, accept that GW intends to hold itself to First Amendment obligations).

    • Is it akin to defacing a property with paint, or chalk, or paper. Government therefore can prohibit (or stop once started) any use, including expressive, of its non-forum property. Perhaps subject to not doing so in a viewpoint-discriminatory manner. I do not believe there is any history of this practice, so GW has not designated this as a public forum.

    • Does it not involve use of the property at all? Is projecting onto a building no different than projecting the images, a la the Bat Signal, into the sky? Therefore, it is speech made off and without using government property, so government cannot prevent or stop it, within First Amendment bounds.

    • If projection involves "use" of the property, what governmental interest justifies stopping that use. Not preservation of the property, since the projection does not harm or affect the property. That leaves something like wanting to keep the building clear of images, perhaps for concerns that everyone will start projecting stuff--although it can serve that interest with a lesser policy, such as a first-come-first serve or other TPM rules. Or it leaves an interest in avoiding the risk or appearance of government association with the messages.

As with other campus groups and protests, the noise-to-signal ratio is out of whack. The point is not that the students expressed antisemitic ideas or that the ideas make Jewish students feel "unsafe." That is the world of free speech. The only point is the rules around projection--whatever they turn out to be.

Update: LeeAnne Fennell (Chicago) shares Maureen Brady's 2020 HLR article and Lee's JOTWELL review on the issue. Maureen focuses on private property, arguing for something like nuisance incorporating anti-commandeering and the dignitary interest in avoiding misatttribution. Government property raises distinct issues, although the misattribution point carries forward. I think Brady and Fennell would agree that 1) projecting onto the government building is different than projecting into the sky and 2) the use of the property, independent of damage to the building, implicates a government interest.

Update: GW issued a statement. Projecting violated university policy (whatever that means), the university is investigating, and the university will take "any appropriate steps" under university policy--plus all the usual "does not reflect our values/we're here for you" pablum. Based on the comments to the tweet, the statement did not satisfy people who want the university to expressly decry antisemitism and/or want the students expelled.

Focusing just on the last point: During the 2016 election season, Emory students chalked "Trump 2016" message on campus, apparently outside of the space where chalking is allowed. Various lefty campus groups went nuts about the "pain" and the university investigated and threatened the students with punishment. Obviously, the university could sanction students for chalking in violation of university policy; it could not (if committed to abiding by the First Amendment) impose a stricter sanction for out-of-space chalking of pro-Trump messages than of anything else. That is, if chalking is not grounds for expulsion, chalking "Trump 2016" cannot be grounds for expulsion The same goes here: If projecting images onto a campus building is not grounds for expulsion (and I doubt it is), projecting antisemitic images onto a campus building cannot be grounds for expulsion. This is Free Speech 101.

On the first point, critics of GW may have a point. Emory's President met with several dozen students and expressed understanding for students' "genuine concern and pain" and ordered revision of bias-reporting proceedings. GW's statement (which as one commentator points out did not mention Jews or antisemitism) does no such thing.

Posted by Howard Wasserman on October 25, 2023 at 11:45 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 24, 2023

Dammit, Florida, stop making me defend this crap (Update)

If government would accept that horrible ideas and those who speak them are protected, life for free-speech maximalists would be easy. Horrible speakers can engage in horrible speech and I can ignore or talk back, without having to defend them. Unfortunately, governments too often either forget or figure it is easier to score political points and lose in court. This puts free-speech advocates in the position of having to  remind government of its constitutional obligations, thereby lending public voice to a defense of bad speech and bad speakers.

Case in point in Florida: State University System Chancellor Ray Rodrigues issued a statement two weeks ago labeling as criminal activities and violations of Florida laws against antisemitic activities campus demonstrations calling for Israel to be wiped off the map and justifying the October 7 attacks and killing Jews. Rodrigues yesterday called on state universities to deactivate two campus chapters of Students for Justice in Palestine, arguing that SJP provides material support to Hamas because it considers itself "part of" the movement against Israel. Both are absurd arguments for restrictions on constitutionally protected speech and efforts that would, if pursued, cost the state an injunction and attorney's fees in court. Plus, it forces me to side with people who want to see me and my family dead.

Update: Although FIU does not have a registered SJP chapter, the South Florida chapter held a rally at FIU Wednesday, alongside a competing rally. Meanwhile, the state promises to "crack down on campus demonstrations that delve beyond protected first amendment speech and into harmful support for terrorist groups," meaningless verbiage since most "harmful support for terrorist groups" is, in fact, protected First Amendment speech. Many lawsuits to follow.

Further Update: FIRE wrote to the Presidents of UF, FSU, FIU, USF, and FAU.

Posted by Howard Wasserman on October 24, 2023 at 08:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Intentional drop rule

This is a moot point since the Rangers beat the Astros in Game 7 of the ALCS Monday to advance to the World Series. But I was confused by something announcer Jon Smoltz said twice during Game 6. On two occasions, an Astros hitter batting with at least two on and less than two out hit a soft line drive (what we sometimes call a "humpback liner," often hit off the end of the bat) that Rangers shortstop Corey Seager caught. Smoltz encouraged Seager to intentionally not catch the ball and turn a double play on the base runners retreating to the bases. I am not sure what Smoltz wanted and there was a lot cross-talk, so he never fully explained. Or he was picking up on something he said earlier in the telecast and I missed it. Either way, he seemed disappointed that Seager and other shortstops did not try this.

Smoltz correctly pointed out that the infield fly rule was not in effect on either play because the balls were not hit high enough; the IFR excludes line drives. But a separate rule (enacted in its current iteration in 1975) prohibits infielders from intentionally dropping a fair fly ball or line drive in the same IFR situations. So Seager could not catch-and-drop or knock down these easily playable balls, unless he could sell it well enough to fool the umpire. Maybe Smoltz believed that, given how softly the balls were hit, Seager could have run backwards onto the shallow outfield grass and let the ball land at his feet and still start the double play (or catch the ball when he saw the baserunners take off.

IFR and Intentional Drop complement one another to eliminate the "cheap" double play. IFR excludes line drives because an uncaught line drive, unlike an uncaught pop-up, does not fall at the infielder's feet; it continues moving forward into the outfield for a hit. The intentional drop rule requires that an infielder inclined to attempt this play cannot catch-and-drop or knock down an easily playable batted ball of any kind. The infielder must intentionally not catch (as opposed to intentionally drop) the ball, which is harder with a liner than a pop-up. Maybe this exposes a hole in the rules, although a relatively uncommon one. Or Smoltz did not know what he was talking about.

Posted by Howard Wasserman on October 24, 2023 at 10:25 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, October 20, 2023

A narrower post in reply

In reply to Paul's response to my post on Jemma DeCristo, mostly to say that my focus was narrower than Paul's, so he raises issues I did not think about when writing this morning:

1) My post was focused on First Amendment protections and whether DeCristo crossed a line into constitutionally unprotected speech that other people did not. I did not think about or suggest anything about general reprehensibility and whether DeCristo's tweet was "worse" or more risible than Russell Rickford's. I probably would agree with Paul's taxonomy. My point was only that none of it (in my view) qualifies as either incitement or true threats; nothing broader than that.

2) I used "many people" as a placeholder--I saw about 4-5 random people saying it was unprotected, plus Cohn. I wanted to engage with Cohn but did not want to link to all the random people. I will refrain from such placeholders in the future.

3) I am glad to see that FIRE has been consistent in protecting so-called lefty speech in this context. I am not surprised. Although I gave that group a hard about certain issues culture-wars issues where I thought its silence was telling, it generally takes a consistent position on free speech. I continue to depart from FIRE on "canceling" and whether and how it is fair game for private actors such as law firms to impose consequences on students.

4) I gave no thought to what department sanctions would be fair game. If the speech is constitutionally protected (as I think it is) and the school wants to adhere to academic freedom norms for extra-mural speech, I presume that to be the end of the inquiry. She could be fired or at least removed as an adviser under a Pickering analysis. But schools according that extra academic-freedom protection for extra-mural speech usually do not reach that step. Or if they do (e.g., Amy Wax) they change working conditions in response to speech (e.g., no more required course or no more work as an adviser) on the view that the speech means her engagement with some students unavoidably changes (and renders hostile or discriminatory) the educational conditions for those students. Perhaps DeCristo meets that--showing herself to be an idiot who cannot be trusted to perform a task such as undergrad adviser, certainly for Jewish students.

Removing DeCristo as an adviser or taking her out of required classes raises similar concerns to Penn's decision to remove Wax from required classes--the school says it cannot sanction her in response to her speech, but materially changes the terms of her employment. Maybe that is appropriate--it balances the professor's speech interests against the Title VI/Title IX concerns from speech indicating discriminatory intent.

Posted by Howard Wasserman on October 20, 2023 at 05:38 PM in Howard Wasserman | Permalink | Comments (0)

Free speech line drawing (Updated)

UC-Davis history professor Jemma DeCristo faces some internal and external troubles over a tweet reading "[One] group of ppl we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation,” she wrote. “They have houses w addresses, kids in school. They can fear their bosses, but they should fear us more," followed by emjois of a knife, an ax, and blood droplets. DeCristo has been disappeared from Twitter and from Davis' web site. Many people, including free speech maximalists, believe this crosses the First Amendment line, uniquely among the various rallies, tweets, and statements (including from DeCristo) celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc.

I do not see why this tweet--as despicable as it is--crosses a First Amendment line that similarly reprehensible speech has not. It does not reach incitement--it does not urge specific action at any time and place, certainly not imminently, and thus is unlikely to lead to such imminent lawless action. It does not reach true threat--it does not mention or address any particular person or group in any time or place, making it, at best, against all Jews (or at least all Jewish journalists). The emojis do not make the threat more specific in time or place. And the norms (such as they) surrounding emojis on social media arguably push this away from a threat and into rhetorical hyperbole.

Again, I am not defending this person or the content of her speech--both suck. But I do not understand why free-speech maximalists  have gotten off the train here.

Update: An email interlocutor points me to US v. Hussaini (S.D. Fla. 2022), refusing to dismiss a federal threats indictment against a person who posted You Tube videos threatening to kill Christians by stabbing out their eyes with a knife and to murder Black people by burning their bodies in a fire. The court rejected defendant's argument that his statements were not directed at a sufficiently discrete group of people, citing Virginia v. Black and US v. Cox from the Sixth Circuit. Reliance on Cox is questionable--the statement there was made by phone to a bank employee and referenced harm to "you all" and "people there" in the bank, including the listener. Reliance on Black is iffy because the Court rejected the view that any cross burning is done with intent to intimidate, which would protect most cross burnings occurring in a field and away from any particular person or group. Nevertheless, Hussaini stands as at least persuasive authority that online speech threatening an enormous group can constitute a sanctionable true threat, even if the result lacks real support and explodes this heretofore narrow category of unprotected speech. If the threats to all Christians and all Black people can be punished as threats, so can DeCristo's tweets.

Posted by Howard Wasserman on October 20, 2023 at 09:20 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 17, 2023

Irony Alert, Academic Freedom Edition

On Steve's post about former Purdue President calling for the end of tenure: The last episode (Sept. 2022) of Keith Whittington's unfortunately discontinued Academic Freedom Podcast featured an interview with . . . Mitch Daniels. The episode description says "During his time at Purdue, President Daniels has carved out a national reputation as a leader on campus free speech issues. Daniels shares the principles and practices he has followed to dramatically improve Purdue’s rating as a defender of academic freedom. The university most recently appeared at number three on FIRE’s College Free Speech Rankings." I guess he changed his mind.

To be fair, FIRE's rankings mostly measure student perception and feelings and the usual campus-speech hobby horses (tolerance for speakers, disinvitations, student attitudes towards disruption, "openness" to difficult conversations, fears that fellow students will think worse of you because of what you say, etc.). It also includes how many times a school sanctioned a scholar for their speech during a "campus controversy." Tenure, the vigor of tenure protections, and the attitude of top administrators towards tenure are not part of the study* despite, as Steve describes, the obvious connection to the university's mission of disseminating knowledge and to protecting the expression of unpopular views.

[*] Which also may explain how three Florida State University System institutions, including mine, can be in the top 50 despite a state effort to eliminate tenure in anything more than name.

Posted by Howard Wasserman on October 17, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, October 16, 2023

The right thing for a suspicious reason

We have witnessed two things on college campuses in the past week: Many schools allowing pro-Hamas rallies, statements, and literature and most schools refraining from issuing corporate statements (or issuing anodyne statements that satisfy no one).

Perhaps this is how it should be: Many believe, like Paul, that universities should not make broad statements on public disputes. Northwestern President Michael Schill urged that position,* grounded in the Chicago Principles and the Kalven Report, in arguing that the university should not speak for its individual members and that he would avoid "statements on political, geopolitical or social issues that do not directly impact the core mission of our University, the education and futures of our students, or higher education." And many believe that campus spaces, especially on public universities, are public forums that should be open for constitutionally protected speech, however offensive and obnoxious, and that administrators should not interfere to protect offended listeners.

[*] Then followed it with a somewhat more defensive statement when someone suggested he "believe[s] that the University as an entity should not be governed by a set of values … that everything is relative."

The problem is that universities reached this epiphany about campus speech when the speech celebrated the deaths of Jews and when even the stuff about Israel is tinged with comments about ovens and gas chambers. Prior to that, many (most) university officials took a different approach. They believed it necessary and appropriate to express solidarity and support African American students following George Floyd's (and other) murders or for women following Dobbs. They believed it necessary and appropriate to regulate, threaten, and sanction student speech--Halloween costumes, microaggressions, chalking sidewalks, singing songs on a bus surrounded by members of your group and unheard by anyone outside the group. Jeffrey Flier, former dean of Harvard Med School, makes this point (paywalled) in arguing that universities should move to the Chicago position of neutrality on non-educational issues, while pointing to Harvard President Claudine Gay's multiple statements and efforts to get out of the hole.

If the carousel ends in the right place on this, I am glad. But it is hard not to be suspicious of the context.

Posted by Howard Wasserman on October 16, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, October 13, 2023

Creating a better baseball post-season

A break in a bad week for some sports frivolity:

Baseball's LCSs are set--the 90-win Astros against the 90-win against the 90-win Rangers in the AL, the 90-win Phillies against the 84-win Diamondbacks in the NL. Five teams won more than 90 games this year (Braves, Orioles, Dodgers, Rays, Brewers); all are out. The Astros are the sole remaining division winner (they tied with the Rangers and were named division winner based on head-to-head record, baseball having eliminated one-game playoffs). They are the sole remaining team that received a first-round bye. And none of the division series went the full five games; two (Diamondbacks and Rangers) swept teams that won at least ten more games during the regular season.

Since introducing non-division winners into the post-season in 1995, baseball has struggled to calibrate its system to serve multiple needs--create late-season excitement, give multiple teams hope, incentivize and reward regular-season success, and create a a format that identifies the "best" team of a given season. Baseball's uniqueness creates some issues. It has the longest regular season, producing a sufficiently large sample size to separate teams by quality. At the same time, the best teams lose 40 % of their games and probably lose three in a row, or 3-out-of-5 or 4-out-0f-7 at some point (maybe several points) in the six-month season. That means any team can win a short series and upsets become more likely. (A play-off series accurately reflecting the regular season would be best-of-75).  And at least this year, it appears the first-round bye--the sole reward for winning a division and having one of the two best records in the league--cooled good teams off rather than giving them beneficial rest (the Braves, who had one of the best offenses in baseball history, scored 8 runs in four games).* Meanwhile, teams that played in the first round got hot.

We are in the early days of the latest format, so it will take time to see how this system performs over several years. Meanwhile, my baseball research side wants to go through results back to 1903 to see how often the post-season winner reflected the regular season and how much that has changed through various post-season iterations.

Posted by Howard Wasserman on October 13, 2023 at 07:38 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 12, 2023

Is this cancel culture (Again)?

The president of NYU's SBA sent a message, as President, to the student body placing "full responsibility" for the terrorist attack in southern Israel on Israel. Winston & Strawn withdrew her employment offer. It also appears there is a move to try to remove her as President.

Cancel culture? Orin Kerr (who believes such a thing exists) has several thoughtful Twitter threads. He argues that the line between the expressive act of imposing consequences on someone's speech and cancellation involves the tendency to react too quickly to the speech, to construe ambiguous statement ungenerously, and to ignore historical context. That is consistent with arguments tying it to proportionality--"cancellation" is often disproportionate to the objected-to message.

I would note that the usual "cancellation is the worst thing ever and a violation of free speech norms" voices on the right are, as always, silent when the targeted/canceled speaker comes from the left. 

Posted by Howard Wasserman on October 12, 2023 at 10:25 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, October 09, 2023

JOTWELL: Wasserman on Johnson on question selection

I have the new Courts Law essay, reviewing Benjamin Johnson, The Origins of Supreme Court Question Selection, 122 Colum. L. Rev. 793 (2022), an excellent history of how SCOTUS seized the power to grant cert and review discrete questions rather than entire cases.

Posted by Howard Wasserman on October 9, 2023 at 01:26 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, October 06, 2023

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

This is what ignoring a court order looks like (Maybe) (Amendment)

 

People often accuse government officials of "ignoring" or "disregarding" court orders. Most use the term inaccurately. They apply it to cases in which governments continue to enforce zombie laws contrary to Supreme Court precedent prior to a court ordering them to stop that--the Southern Manifesto or Cooper v. Aaron. Or they apply it to edge cases, such as the recently resolved dispute in Allen v. Milligan over Alabama's congressional maps--Alabama read the non-explicit court order narrowly, attempted to get away with not drawing a second majority-Black district, lost when the new map returned to district court and SCOTUS refused to stay the order, and acquiesced to the court-drawn map (with the second district).

By contrast, a real example of ignoring a court order appears to be playing out in Florida. The district court found Florida law and regs prohibiting Medicaid coverage for gender-affirming care violates the 14th Amendment, ACA, and the Medicaid Act and enjoined enforcement. Florida appealed, but neither the district court nor Eleventh Circuit has stayed the injunction. Nevertheless, according to plaintiffs' motion to enforce, Florida continues to enforce the reg and to deny coverage. Florida has good reason to believe it will prevail on appear and the district court's judgment is not long for this world--if Florida can ban gender-affirming care, as the Eleventh Circuit held, it is hard to imagine the court saying Florida cannot refuse to pay for that care. But it does not matter. A district court judgment binds the defendants as to the plaintiffs unless it is stayed or reversed on appeal. The departmentalist power to continue enforcing the law as to the plaintiffs based on disagreement, belief a higher court will reverse, or to try to set-up reversal has disappeared. Florida can appeal the judgment, as it has. But until the judgment is stayed or reversed, Florida must comply. And its failure or refusal to do so can warrant sanctions.

Note, by the way, how much leeway the plaintiffs expect the court to give. They do not request sanctions. In essence, they want the court to reaffirm or clarify its judgment (which is perfectly clear) and to remind Florida it may not enforce the law. Sanctions are several steps away.

Amendment: Maybe. The injunction (properly) prohibited enforcement of the law as to the four plaintiffs. The motion seems to challenge the state's blanket efforts to continue enforcing its regs, such as public statements of intent to continue enforcement, recoupment efforts, and cease-and-desist letters to insurance carriers. To the extent those blanket efforts cause enforcement against the four plaintiffs, this motion gets it right--the state fails to distinguish those the injunction protects from enforcement from others who remain unprotected. But the language in the motion is much broader--it seems to argue that, given the court's finding that the reg is invalid, the injunction bars all enforcement against all people. I take back--or at least soften--everything I said above.

Posted by Howard Wasserman on October 6, 2023 at 10:27 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, October 05, 2023

Keeping no one happy

In the wake of a May 2023 student speech at CUNY Law graduation that some saw as defending Palestine, others saw as anti-Semitic, and which every relevant government actor responded to incorrectly, the Forward reports, based on the minutes and student notes of a September faculty meeting, the school will not have a student speaker. But students will speak at some pre-graduation programs.

They say a good compromise leaves everyone unhappy. If so, mission accomplished. Critics say the school is silencing students and curtailing speech rights. An anti-Semitism activist says allowing the student to speak at the pre-graduation ceremony is a step in the right direction but does not go far enough. He also calls for the dean to be fired for complaining about anti-Palestinian harassment following last spring's graduation, which he reads as co-extensive with the "Jewish community’s outrage and pleas to CUNY to recognize their civil rights on campus."

This is not going away easily.

Posted by Howard Wasserman on October 5, 2023 at 09:49 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, September 26, 2023

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Posted by Howard Wasserman on September 26, 2023 at 12:50 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, September 21, 2023

Maybe I'm part of the problem

With Yom Kippur upon us, it is time to confess my sins in response to Paul's post, because I am part of the problem:

Prior to COVID, I wore slacks and a tie when teaching (often a tie linked thematically to the day's class), although I wore shorts, a polo, and a quarter-zip on non-teaching days (I live in Miami, where it is hot 49 weeks a year and very warm the other three weeks).*

[*] A former student sued me a few years ago. The complaint, alleging a due process violation, included allegations about how I dressed).

When I taught online during COVID, I adopted my non-teaching outfit for the video classroom space. The shorts were out of camera and the quarter-zip-and-polo looked nice enough. I lived in Philly and taught online during fall 2020; John Fetterman was running for Lt. Governor, and, needless to say, I became a fan.

I continued wearing that outfit when I returned to teaching in-person-but-masked in fall 2021. For precedent, I pointed to basketball coaches--who used to wear dress clothes on the sideline, from Pat Riley's Armani suits to the unfortunate 1970s:

ImagesThat is until COVID, when coaches insisted on wearing comfortable clothing (warm-up pants, quarter-zips, sneakers) to go along with masks. And there is something weird about a mask with a suit or otherwise nice clothing. So, I told my students, I would continue with shorts and a polo and a mask in the classroom. With the lawsuit fresh in mind, I assured them this did not reflect on how seriously I took teaching or how the class would be conducted.

When I removed the mask in fall 2022, I said the hell with it. I had become comfortable (again, wearing pants and a nice shirt in Miami is miserable), it did not change the quality of my teaching (for whatever that is worth), and it did not change how students interacted with me in the classroom or their seriousness in preparing and engaging in class.

As Paul said, a classroom is not the U.S. Senate. And I dress "appropriately" in other contexts, such as commencement or when serving as moderator of a school-wide lecture with a visiting judge. I think about whether this is the wrong choice and whether to go back to wearing slacks (or at least jeans--which I probably would in a place that had seasons), if not all the way to wearing ties. The recent dust-up and the resulting discussion of "professionalism" puts this back on my radar. So far, my desire for comfort in hot weather prevails. 

S'lach li.

Posted by Howard Wasserman on September 21, 2023 at 10:26 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, September 14, 2023

Judicial supremacy and proceduralism

I seem to be spending the day reacting to Gerard. He wrote this at Balkin, pointing out that many secretaries of state will not act in the absence of a SCOTUS ruling and will not take the steps necessary to obtain that ruling. Much commentary (especially from non-legal-scholars but also from lawyers who should know better) has taken the tone of "no secretary of state can keep Trump off the ballot, only SCOTUS can."

The problem strikes me as a combination of judicial supremacy, misunderstanding procedure and how cases come to the Court, and an assumption that everything is an EpY action in federal district court. Accepting the Court must have the last word, that is the end of the game; something must happen at the beginning, when someone does something to trigger judicial review. The pervasive lack of understanding (or bad faith) means no one will understand or accept when a Secretary of State excludes Trump from the ballot to create the opportunity for litigation. Nor will they accept the case going through state rather than federal court. Everyone seems to be waiting for a random person to file suit in federal court, ignoring the obvious lack of standing.

Posted by Howard Wasserman on September 14, 2023 at 02:17 PM in Howard Wasserman, Judicial Process | Permalink | Comments (1)

Is a hedgehog a momentary fox?

A quick thought on Gerard's post:

Is everyone a hedgehog in the moment of working on one large project or series of connected projects, before turning to the next (perhaps unrelated) project. Gerard is a hedgehog on § 3 for now. Come 2024, when this is resolved, he becomes a hedgehog on Youngstown. Big picture, of course, he is a fox across projects. And it seems as if many of us operate that way.

Blogging allows some foxiness to come through. While hedgehogging over a particular book or series of papers, I can write, however briefly, on outside subjects.

Posted by Howard Wasserman on September 14, 2023 at 01:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, September 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Posted by Howard Wasserman on September 9, 2023 at 07:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, September 08, 2023

Maybe it is the Handmaid's Tale

Mary Ziegler (UC-Davis, having deliberately escaped Florida) writes in Slate about the impossibility of enforcing the new Texas ordinances against using local roads to leave the state for an abortion. She hits similar themes to what I wrote:

Among the problems with enforcement is the question of how the ordinance and others like it could ever be enforced. How would anyone know if a driver on a road in or out of Texas is driving an abortion-seeker? By setting up a roadblock? Investigating everyone of reproductive age? None of that would be politically palatable—or financially feasible—for a state with a big budget, much less a small town like Llano or a rural county with limited resources.

The possibility, she suggests, is circuitous: "[E]ven if you’re not going to be stopped and arrested while driving a friend to an abortion clinic across state lines, a vindictive partner could find your texts setting up the drive, sue you, and attempt to use geo-tracking data to collect in a civil suit."

That line reminded me of The Handmaid's Tale (the TV show). A flashback (I think from season one) depicts June and Luke trying to escape into Canada. They hire a man near the border, who takes and destroys their phones so Gilead officials cannot follow them. That, Ziegler suggests, is what a woman (and the friend or person who drives her) must do when driving through Llano, Texas on the way to New Mexico.

The Handmaid's Tale outfits at protests and rallies make for fun theater, but I have thought they were overstated. Maybe not, at least in some small details.

Posted by Howard Wasserman on September 8, 2023 at 02:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, September 02, 2023

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

Posted by Howard Wasserman on September 2, 2023 at 02:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, August 31, 2023

Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.

Posted by Howard Wasserman on August 31, 2023 at 10:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 30, 2023

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.

Posted by Howard Wasserman on August 30, 2023 at 12:23 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 25, 2023

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.

Posted by Howard Wasserman on August 25, 2023 at 07:04 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, August 23, 2023

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.

Posted by Administrators on August 23, 2023 at 01:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, August 19, 2023

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.

Posted by Administrators on August 19, 2023 at 02:55 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 18, 2023

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

Posted by Howard Wasserman on August 18, 2023 at 02:11 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, August 16, 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.

Posted by Howard Wasserman on August 16, 2023 at 06:59 AM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 11, 2023

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.

Posted by Howard Wasserman on August 11, 2023 at 12:25 PM in Books, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, August 02, 2023

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.

Posted by Howard Wasserman on August 2, 2023 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Tuesday, August 01, 2023

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.

Posted by Howard Wasserman on August 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 31, 2023

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.

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 26, 2023

Bryce Newell's 2023 Meta Rankings of Law Journals

Just in time for the new season (barely).

Posted by Howard Wasserman on July 26, 2023 at 08:16 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, July 22, 2023

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.

Posted by Howard Wasserman on July 22, 2023 at 12:32 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 18, 2023

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.

Posted by Howard Wasserman on July 18, 2023 at 01:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, July 13, 2023

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?

Posted by Howard Wasserman on July 13, 2023 at 10:27 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 12, 2023

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.

Posted by Howard Wasserman on July 12, 2023 at 01:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 11, 2023

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.

Posted by Howard Wasserman on July 11, 2023 at 10:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, July 09, 2023

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.

Posted by Howard Wasserman on July 9, 2023 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 05, 2023

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.

Posted by Howard Wasserman on July 5, 2023 at 03:22 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 03, 2023

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.

Posted by Howard Wasserman on July 3, 2023 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 30, 2023

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.

Posted by Howard Wasserman on June 30, 2023 at 03:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 29, 2023

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.

Posted by Howard Wasserman on June 29, 2023 at 02:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Howard Wasserman on June 29, 2023 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

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.

Posted by Howard Wasserman on June 29, 2023 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 24, 2023

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.

Posted by Howard Wasserman on June 24, 2023 at 09:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, June 22, 2023

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.

Posted by Howard Wasserman on June 22, 2023 at 09:05 AM in Culture, Howard Wasserman | Permalink | Comments (0)

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.

Posted by Howard Wasserman on June 22, 2023 at 05:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)