Monday, July 12, 2021

Sports and politics

England lost the European championship to Italy on Sunday, losing 3-2 in a penalty shootout. England's three misses were by Black players. English fans did not take the loss well; fans vandalized a mural dedicated to one player (for his philanthropic work) and took to social media to criticize the three players in the way you would expect to happen on social media.

Calling sports apolitical is nonsense, given the trappings of patriotism and politics, especially (as here) in an international competition when one plays for one's country. But without those trappings, this highlights the unavoidable politics. A loss is expressed in political terms--racist language and ideas about them as people (not merely as footballers) or denying that they are true Englishmen. If the players know how they will be criticized for poor performance, they cannot be blamed for making their own political statements, whether in anticipation or response.

Posted by Howard Wasserman on July 12, 2021 at 09:22 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

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

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

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

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

 

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

Thursday, July 08, 2021

Scope of discovery

A recurring theme with Donald Trump lawsuits is a stated hope that he will sue and the case will go forward, subjecting him to discovery and the exposure of all the things he has been trying to hide all these years about his taxes, his private conduct, his dishonesty and corruption, etc. This is especially true for his many threats to sue for defamation, where the need to prove the falsity of the allegedly defamatory statements makes relevant inquiry into his conduct underlying those statements.

Some have floated that same idea with respect to his latest lawsuits, expressing the hope that Facebook, Twitter, and YouTube will not get the actions dismissed, but will let the case proceed into discovery and a deep-dive into Trump's secrets. But filing a lawsuit does not open a plaintiff to discovery about anything and everything in his life; it has to be relevant (meaning calculated to lead to the discovery of admissible evidence) to the claims and defenses in the case. The only issues in this case will be whether the companies act under color based on their relationship to the government and whether the speech that Trump engaged in was constitutionally protected. Whether Trump paid taxes, sexually assaulted women, or self-dealt as President is not relevant to those claims or defenses.

So this will not happen, not because Facebook has no incentive to do it, but because it has nothing to do with the case.

Posted by Howard Wasserman on July 8, 2021 at 03:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 07, 2021

Today in dumb lawsuits

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

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

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

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

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

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

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

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

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

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

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

Friday, July 02, 2021

Reconsidering doctrine

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

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

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

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

On Americans for Prosperity

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

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

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

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

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

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

Thursday, July 01, 2021

Erroneous political statement of the day

I have seen a version from multiple sources: Thursday's decisions in AFP and Brnovich are a direct result of Mitch McConnell's ploy with Merrick Garland, that but for that, the Court would have a 5-4 liberal majority rather than a 6-3 conservative majority.

This is wrong because Donald Trump still would have filled two seats (Kennedy and Ginsburg). Had Garland been confirmed, there would have been a 5-4 liberal majority until October 2020, when the majority flipped when Barrett replaced Ginsburg. So some cases during the Trump years probably come out differently--the travel ban, for example. The Court might have done more to stop the worst of Trump's abuses in starker terms. But not Thursday's cases or any of the 6-3 cases of this Term--they are closer (5-4 rather than 6-3), but the outcomes do not change.

The other question in this counter-factual is who the Trump appointees would have been: Gorsuch and Kavanaugh, Gorusch and Barrett, Kavanaugh and Barrett?

Posted by Howard Wasserman on July 1, 2021 at 11:36 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Some thoughts on Cosby

I do not do criminal procedure, so I cannot pass on the Pennsylvania Supreme Court decision in Cosby. I want to raise some issues that touch on what I do study.

• Could Pennsylvania seek review in SCOTUS? That is, did the majority rely on federal or Pennsylvania principles of due process and estoppel? It cites state and federal cases and discusses both sources of law, moving between them. In an unclear case, Michigan v. Long requires the conclusion that the state court relied on federal law rather than independent-and-adequate state grounds, giving SCOTUS jurisdiction (although I doubt SCOTUS will touch this case). I think the better reading is that this is a decision on federal due process, but it requires parsing.

• Accepting that a constitutional violation occurred, I agree with the two-justice concurring-and-dissenting opinion that the proper remedy is a retrial without his deposition statements rather than dismissal of the case and a bar on a new trial. The former DA promised not to prosecute and the breach of the promise was the violation, but Cosby was injured only because he answered deposition questions rather than asserting his Fifth Amendment privilege (which the court accepts as the purpose behind the promise) and those statements were used against him. Imagine the former DA had made the promise and the current DA ignored the promise, but Cosby had never testified in the civil action or the new prosecution had not used his statements--in other words, had Cosby not relied. Would the court have found a violation? Reading the opinion, it does not appear so, specially since the former DA likely lacked authority to make this binding promise in this form. If a prosecution would have been allowed ab initio, then the remedy for the violation should be to allow a re-prosecution as if Cosby had not testified (i.e., without his statements).

• The majority is unclear as to who violated Cosby's rights--the former DA who made the promise or the current DA who brought the prosecution? The court is inconsistent about that, although at the end of the day seems to define it as the promise that induced Cosby to waive his Fifth Amendment privilege in the civil action (which would seem to suggest that Castor committed the violation).

If that is the violation, how does that affect the underlying civil case against Cosby? It settled for more than $ 3 million and was dismissed, after Cosby sat for multiple depositions and made inculpatory statements. It does not appear that any judgment was entered. Could Cosby attempt to open the settlement, arguing that it was a product of the DA's constitutional violation--he settled because negative information came out in his depositions, but he would not have made those inculpatory statements (and thus would not have settled) had he not been stripped of his Fifth Amendment rights by Castor's promise? That might be an equitable "other reason" to reopen a judgment; not sure it does the same for a settlement.

• Might Cosby sue the current and/or former prosecutors, claiming a due process violation and seeking to recover some or all of the $ 3 million settlement that resulted from the violation? We will not find out because it seems pretty clear that decisions to prosecutor or not are protected by prosecutorial immunity.

Posted by Howard Wasserman on July 1, 2021 at 03:49 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Judicial Process | Permalink | Comments (0)

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

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

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

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

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

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

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

Wednesday, June 30, 2021

New CNN Survey of Presidents

Here. Top 10: Lincoln, Washington, FDR, TR, Ike, Truman, Jefferson, JFK, Reagan, Obama (this is unchanged from the prior survey in 2017 except for Obama, who moves up from 12). Bottom 5: William Henry Harrison, Trump, Pierce, Andrew Johnson, Buchanan.

How about monosyllabic presidents? They had a rough four years: Polk (18, down from 14), Grant (20, up from 22), Papa Bush (21, down from 20), Taft (23, up from 24), Ford (28, down from 25), W (29, up from 33), Hayes (33, down from 31), Trump (debuting at 41), Pierce (42, down from 41). I expected Grant to show improvement. I am shocked that three Presidents are deemed worse than Trump, given everything that has happened the past six months and everything we learn daily; could participants have over-corrected for recency bias?

Update: Jeremy Stahl at Slate argues that what it takes to be worse than Trump is to botch the run-up (Piece and Buchanan) or aftermath (Johnson) of the Civil War. Outside those three who failed to deal with extraordinary times, Trump is the worst. And the guy immediately ahead of Trump was in office for 31 days.

Posted by Howard Wasserman on June 30, 2021 at 06:02 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Understanding "cancel culture" and "offense"

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

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

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

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

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

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

Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

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

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

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

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

Tuesday, June 29, 2021

Executive v. Legislative and Twitter blocking

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

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

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

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

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

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

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

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

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

Sunday, June 27, 2021

SCOTUS, standing, and HB8

SCOTUS decided two significant standing cases this Term, both with implications for challenges to Texas's HB8 fetal-heartbeat law.

California v. Texas (ACA) reaffirms that it will be impossible to bring a pre-enforcement suit against state officials. California held that individuals had no standing to challenge the zeroed-out mandate, because the government had nothing to enforce, there is "no one, and nothing, to enjoin." "[N]o unlawful Government action 'fairly traceable' to §5000A(a) caused the plaintiffs’ pocketbook harm. Here, there is no action—actual or threatened—whatsoever. There is only the statute’s textually unenforceable language." Similarly, "no unlawful government action is fairly traceable" to HB8 that injures the plaintiffs. The reason differs. In California, the provision of ACA was unenforceable. HB8 is enforceable--it provides for damages and injunctive relief against those who provide or facilitate abortions--but not by the government. The end point--no government enforcement and no government official to enjoin--is the same.

TransUnion v. Ramirez sparked some conversations about HB8, which accords a private statutory right to people who can point to no historically recognized "real" and "concrete" injury. Likely HB8 plaintiffs have suffered less of an actual or threatened injury than the class members in TransUnion. But TransUnion controls standing in federal court under Article III; it says nothing about standing in Texas courts under the Texas Constitution. So it has no direct effect on the validity of the procedures in HB8. The question is whether it could have indirect or persuasive effect. As I wrote (citing an expert on the Texas Constitution), Texas courts follow Article III but accord greater deference to legislative authorizations of suit. The defendant in the first HB8 suit will raise lack of standing and argue that Texas courts should (but are not required to) follow TransUnion and impose the same limits on the legislative power to create new rights. Stay tuned.

Posted by Howard Wasserman on June 27, 2021 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 25, 2021

Standing up to standing

SCOTUS held Friday in TransUnion LLC v. Ramirez  that most of a class lacked standing to sue over inaccurate information under the Fair Credit Report Act. Justice Kavanaugh wrote for five; Justice Thomas dissented for Breyer, Sotomayor, and Kagan; and Kagan wrote a shorter dissent for Breyer and Sotomayor. This marks another case (the third, I believe) in which Barrett replacing Ginsburg presumably changed the outcome of the case.

The result is not surprising, given the direction of standing cases, but it is the most explicit the Court has been. The majority makes explicit that "under Article III, an injury in law is not an injury in fact," a violation of a statutory right is not sufficient for standing, and Congress cannot create new private statutory rights that provide a basis to sue unless they are the same or analogous to historically recognized legal rights (physical injury, monetary loss, or recognized intangible harms) as determined by the Court. Purely procedural rights, even for an individual, are not sufficient.

Thus, the 1800+ class members whose false information was disseminated (including the named plaintiff) and included information about being on a list of "specially designated nationals" who might be drug dealers or terrorists had standing to sue. The 6000+ remaining class members, whose reports contained false information but were not disseminated, did not have standing; although the false information in the report violated the statute, it was speculative whether or when the information would be disseminated. The entire class lacked standing to challenge the failure to provide them with accurate information and information on how to correct inaccurate information, because the information was provided but in the wrong manner (split into two incomplete mailings); while violative of the statute, it caused no concrete harm.

According to Thomas' dissent, the problem with today's decision is it fails to distinguish public and private rights. Standing limitations make sense when Congress creates a public right and allows for private enforcement; it makes sense to require the plaintiff to show a direct injury from the public statutory violation. This explains Lujan and Laidlaw, for example. It makes no sense when Congress creates a private right for an individual and allows that individual to sue, as in Spokeo and here; and that should include informational and procedural injuries.

Kagan's separate dissent emphasizes an analytical point I make in class: We must "rewrite" the story that standing is being about the "single idea" of separation of powers and limiting the judicial power when the Court can and does override congressional creation of a legal right and remedy. That is, if Congress decides that some conduct should be unlawful and the target of that unlawful conduct should be able to sue and recover for her injury, it is inconsistent with separation of powers and a limited judicial power for the Court to override that decision and require plaintiffs to show, in addition to the statutory violation, something extra that the Court demands. This decision impairs Congress' Article I power to regulate and stop conduct it deems harmful and aggrandizes the Court's power. This goes to the other aspect of the Fletcher argument--not only is standing a merits concern, but the Court should defer to Congress' choice as to statutory merits.

The case also exposes the fault lines around the role of common sense in standing analysis. According to the majority, the risk of disclosure for the 6000+ was speculative because there was no evidence of disclosure or attempted disclosure, and there was no harm from the inaccurate reports because people may not have opened the envelopes and may not have bothered to correct them. But "tap[ping] into common sense," it should not be speculative that a company in the business of selling credit reports will sell those credit reports or that someone who requests their credit report will open it and seek to correct erroneous information.

Interestingly, the Kagan trio departed from Thomas over whether a congressional cause of action is always sufficient. Thomas says it is, at least for private rights. Kagan says Congress is limiting to recognized rights that are "real" and "concrete" but that the Court should override a statutory right to sue " when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue," which practically means never.

One final point: It seems to me that the Thomas and Kagan opinions should have been designated as "concurring in the judgment in part and dissenting in part." They agreed with the majority as to the result (standing existed) for the 1800+ class members whose information was disclosed.

Posted by Howard Wasserman on June 25, 2021 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thoughts on Mahanoy

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 24, 2021

Another bad universal injunction decision

A new exhibit in the MUIGA (Make Universal Injunctions Great Again) campaign: Judge Howard (a GWB appointee) of the Middle District of Florida universally enjoined (even though she says nationwide, because judges cannot get this right) the socially disadvantaged farmers and ranchers provision of the American Rescue Plan Act. That provision sets money aside for loan forgiveness and other aide for farmers and ranchers from historically disadvantaged groups. The lawsuit was brought by one white farmer in Florida.

The scope portion followed the usual pattern: Hand-wringing about the "great caution" required before issuing a universal injunction, plus citations to Thomas and Gorsuch questioning the authority to do so. Then this is the complete analysis:

Plaintiff has shown a likelihood of success on the merits of his claim that Section 1005 is unconstitutional and, if implemented, would deprive him of his right to equal protection under the law. The implementation of Section 1005 will be swift and irreversible, meaning the only way to avoid Plaintiff’s irreparable harm is to enjoin the program.

Once again, the justifications offered for universality cover every case--what program, that appears to violate someone's equal protection rights, is not implemented in a "swift and irreversible" manner? This would mean that any program that would deprive a plaintiff of his rights must be universally enjoined, unless the program someone will not be swiftly implemented. Is there something uniquely swift and irreversible here, where other programs will be implemented slowly and reversibly? The court never explains.

The bigger problem is that there is an obvious non-universal remedy that would accord complete relief: Give the plaintiff--and only the plaintiff--access to the program. That remedies the constitutional violation of treating him differently because of his race and the injury of his exclusion from the program. Nothing more need be done to protect or vindicate the plaintiff's rights.

There might be an argument that universality is necessary because the pool of money is limited and affected by the number of applicants; there is $ X to be distributed, divided by the number of applicants, so universality is necessary until we can determine the number of constitutionally eligible applicants. If money continues to be distributed, that will reduce the amount plaintiff can recover. This was the theory behind universality in the sanctuary-cities cases: Requiring that San Francisco receive funds but allowing Chicago to continue to be denied funds does not allow a proper determination of amount and would mean that, upon final resolution, there might be no funds left for Chicago. But that does not appear to be the case here--the pool is not limited and funds are means-tested, so the amount recovered is determined by each applicant's circumstances, not the number of applicants. In any event, the court never discusses this or offers this as the explanation.

Compounding what appears to be the judge's misunderstanding of universality, she adds a footnote saying she "reaches this conclusion without regard to any incidental benefit to other similarly situated White farmers." This is nonsense. By making the injunction universal, she accords more than incidental benefit to other white farmers--she has made them direct beneficiaries of the injunction, on par with the plaintiff.

There is another way of looking at this case: The plaintiff does not seek the debt relief available under this section, but seeks to stop the government from giving that relief to anyone else. On that understanding, complete relief comes not from making the plaintiff eligible for the funds, but from stopping the award of funds to anyone.

But the plaintiff should not have standing to seek that remedy--he is not injured by some people receiving a benefit that he is not interested in receiving. The court cites Gratz  to identify the equal-protection injury as "the inability to compete on an equal footing." But if the plaintiff's injury here is the inability to compete for the funds on an equal footing, it can be remedied by allowing him to compete for funds; an injunction stopping everyone else from receiving funds is not commensurate with the violation. This case looks like a lawsuit by someone who has no interest in attending the University of Michigan seeking to enjoin the University of Michigan from considering race of people who are interested in attending the University of Michigan. Equal protection standing should not extend that far.

Posted by Howard Wasserman on June 24, 2021 at 09:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 22, 2021

Sports and law in the news

Two items on sports in court:

• As Orly mentioned, SCOTUS on Monday unanimously held that the NCAA violated antitrust laws by restricting the "educational benefits" athletes can receive. The immediate judgment is narrow, because the plaintiffs did not cross-appeal on other compensation limits. But the case does appear as a shot across the NCAA's bow. Justice Gorsuch spent the first eight pages describing the enormous amounts of money the NCAA generates for coaches and administrators compared with the modest sums for athletes. Justice Kavanaugh concurred to all-but-hold ("serious questions" is code) that the NCAA is one giant antitrust violation. In particular, he describes as "circular and unpersuasive" the NCAA's main argument that "colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid." If four Justices agree with that premise, that is the ballgame on college athletics as they exist. The question will be what replaces it.

The Job Creators Network voluntarily dismissed its absurd lawsuit challenging MLB's decision to move the All Star Game from Georgia in protest of the state's new voting laws and seeking millions in damages and an injunctive compelling MLB to move the game back to Atlanta (and compel the players to participate in the game). JCN attorney Howard Kleinhendler (late of the Kraken Team) was raked over the coals in an oral argument last week before the court dismissed the action from the bench; dropping the suit rather than appealing seems a wise move. I did not write about the argument, but it included an argument that by moving the game in response to Georgia's voting laws, MLB violated Shelby County by stepping into the shoes of the federal government subjecting Georgia's laws to preclearance. JCN promised to continue the fight in and out of court. Good luck with that.

Posted by Howard Wasserman on June 22, 2021 at 09:54 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

More on Lafayette Square Lawsuits

The district court dismissed some, but not all, of the claims arising from the clearing of Lafayette Square in June 2020. Despite news reports, the case is not over.

The plaintiffs have standing to proceed against federal defendants for injunctive relief over continued restrictions on access to Lafayette Square. And their claims against local law enforcement officials for First Amendment violations were well-pleaded and not barred by qualified immunity. The latter point is surprising and perhaps not long for this world. The court defined the rights at issue (restriction on speech, retaliation for disfavored message) at a high level of generality, without demanding prior case law or a prior similar context. This contrasted with a demand for an identical prior case in according qualified immunity on Fourth Amendment claims.

The piece getting the most attention is the rejection of the Bivens claims against Donald Trump, Bill Barr, Mark Esper, and other high-level federal officials, in addition to the federal officers on the ground. But the outcome of those claims was obvious before the lawsuit was filed. Courts have read SCOTUS's recent cases to all-but preclude Bivens actions, especially for new rights (SCOTUS has never allowed a Bivens action in a First Amendment case) in a situation remotely touching on national security and presidential security, which has become a buzzword for rejecting Bivens. I look at this case less as a bad decision than as a decision faithfully applying impossible SCOTUS rules.

We are nearing the point that plaintiffs will be unable to seek damages for constitutional violations unless Congress acts. Unfortunately, Congress either cannot or will not act.

Posted by Howard Wasserman on June 22, 2021 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Monday, June 21, 2021

A tough season for Jews in MLB

In my article on Jewish baseball players on Yom Kippur, I wrote that we were enjoying a new gilten alter (golden age) of Jews in baseball. Several Jewish players seemed on the verge of stardom or being solid contributors. Approaching the midpoint of the season, it has not played out as well as we hoped.

Jewish Baseball News has the basic stats for the six non-pitchers and five pitchers who have appeared in MLB this season. Alex Bregman has been solid but not at his 2019 near-MVP level, plus he is on the Injured List and no date is set for his return. Joc Pederson started the season slowly but has come around of late as the lead-off man for the Cubs. Kevin Pillar missed time after suffering a broken nose from a pitch to his face. Rowdy Tellez has been up and down to the minors and was removed from the starting line-up this weekend after going 0-for-8 with two strikeouts in his four prior appearances.

Life has been worse for pitchers. Max Fried, seemingly set to become the next great Jewish lefty, has an ERA in the mid-4.oo and has been inconsistent. Israel-born Dean Kremer, who made several promising starts for the Orioles as a late-season call-up, is 0-6, has an ERA over 6.00, and has surrendered 13 home runs in 49 innings. Fried and Kramer pitched well over the weekend, so hopefully they each can turn the corner. Richard Bleier continues to do well as an innings-eating reliever, a position in which Jewish pitchers have thrived. Ryan Sherriff, another innings-eater who pitched well for the Rays in the 2020 World Series, stepped away from the game for personal reasons in April; he is back in the Majors as of two weeks ago.

Posted by Howard Wasserman on June 21, 2021 at 11:21 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, June 16, 2021

Universal injunctions are good again

So says a Trump-appointed judge on the Western District of Louisiana in a challenge by a red state (Louisiana) to a Biden Administration's pause in issuing new oil and gas leases. Here is the total analysis on scope: "This Court does not favor nationwide injunctions unless absolutely necessary. However, it is necessary here because of the need for uniformity. Texas, 809 F.3d at 18788. The Agency Defendants’ lease sales are located on public lands and in offshore waters across the nation. Uniformity is needed despite this Court’s reluctance to issue a nationwide injunction."

This is another example of why there is no meaningful limitation on universality, a judge's pearl-clutching "reluctance" not withstanding. All federal law applies "across the nation." If there is a need for uniformity, it is not limited to oil and gas leases, but applies to all challenges to all federal law. So all injunctions, at least as to enforcement of federal law, must be universal or there is no logical basis for making some universal and others not.

Posted by Howard Wasserman on June 16, 2021 at 02:22 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 10, 2021

Opinions and Assignments

Two thoughts as the Court again issued one opinion (from November)

1) Since May 17, the Court has issued twelve opinions in seven "opinion days," issuing two or more opinions three of those days and one opinion on each of the remaining four. The Court has issued one opinion on eleven of its opinion days this Term. They have 21 argued cases left and three weeks in the Term, so likely six opinion days and an average of three opinions per day. And those that remain are among the most controversial and most important. Obviously the Court can issue opinions only when they are ready and cases with more and longer opinions take more time. But it is hard to avoid the sense that the Court is doing the equivalent of a "document dump"--dumping out major opinions in a flood, overwhelming those whose job it is to parse, understand, and critique the Court's work in the immediate political moment. This is distinct from the longer scholarly term. Scholars can write articles about these cases whenever and the timing of their issuance does not matter. But scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions.

2) Thursday's decision in Borden was a 4-1-4 split. Kagan wrote for Breyer, Sotomayor, and Gorsuch; Thomas concurred in the judgment; Kavanaugh dissented for the Chief, Alito, and Barrett. So a question: Who assigned this opinion, Breyer or Thomas? The practice is senior-most associate justice in the majority. Is it the majority for the judgment/outcome? So at conference, Thomas, Breyer, Sotomayor, Kagan, and Gorsuch vote to reverse, the assignment goes to Thomas, and if the writer (Kagan, in this case) loses a majority in the course of drafting, oh well? Or if at conference it is obvious that Thomas' views (apart from the result) are different than Breyer, et al., Breyer assigns? The former would seem to be more administrable because one never knows if the write can get a majority until she tries. The same issue arose with June Medical last Term--did the Chief assign the opinion because he was in the majority to reverse or did Ginsburg assign because the Chief's reasoning was always different? Does anyone know for sure?

3) Rick Hasen gets it and it amazes me that Justice Breyer does not appear to. It is one thing for Breyer to continue to believe the Court is not nakedly political. It is another thing to have watch Mitch McConnell for the past decade and not recognize what would happen.

Posted by Howard Wasserman on June 10, 2021 at 11:52 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, June 09, 2021

JOTWELL: Malveaux on Spaulding on "actual" procedure

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021) on how much of civil procedure occurs outside of federal court and the need for legal education to acknowledge and reflect that reality.

Posted by Howard Wasserman on June 9, 2021 at 09:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 08, 2021

Speech and blame-shifting

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

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

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

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

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

Monday, June 07, 2021

On suing the wrong defendant

What happens if a constitutional plaintiff sues the wrong defendant and why does that happen? The answer is neither clear nor consistent, as two cases reveal.

Last week, the Northern District of Texas dismissed a challenge to a Lubbock ordinance prohibiting abortions in the city but providing no mechanism for municipal enforcement. Planned Parenthood sued the city, but the court recognized that the city is not responsible for enforcement of the law and does not control the private individuals who do enforce the law. The court therefore held that plaintiffs lacked standing. This decision presages the likely result when Planned Parenthood or another provider sues to challenge HR8.

Also last week, the Fifth Circuit ordered dismissal of a challenge to the rejection of online voter-registration applications using a photograph of a signed application form, under the "wet signature" requirement that applications have an actual ink signature. Acceptance or rejection of registration applications rests with country registrars. The Secretary of State had issued a press release reminding voters that online registration is not available, a press release that prompted several county registrars to change course and reject online applications. The Texas Democratic Party and others sued the Secretary. The court held that the Secretary had sovereign immunity, because she was not the responsible executive officer for a proper Ex Parte Young action.

The defect in both actions is the same--the plaintiff sued the wrong defendant, a person/entity not responsible for enforcing the challenge law and thus causing the challenged harm. It makes no sense to use distinct doctrines to get at the same idea. And a court could recast one as the other. The Fifth Circuit could have held that Planned Parenthood lacked standing to sue the Secretary, because the Secretary's press release did not cause the injury and an injunction against the Secretary would not remedy their harm. The Lubbock case could not be recast as sovereign immunity because a municipality is not a sovereign. But imagine when Planned Parenthood sues theTexas Commissioner of State Health Services. The court could say no standing, on the same grounds as in Lubbock. Or the court could follow Texas Democratic Party and say the Commissioner has sovereign immunity because he is not responsible for enforcing the heartbeat law and does not control those who do. Again, it is incoherent to fold the same idea into two doctrines.

Worse, to the extent the court wants to tie this to Ex Parte Young and sovereign immunity, it should be about the merits of the claim. The issue under § 1983 is not that states (and state officials sued in their official capacities) have sovereign immunity. The issue is that states (and state officials sued in their official capacities) are not "persons" for purposes of § 1983. So a state/state official should not claim sovereign immunity; it/he should claim that an element of § 1983--a person as defendant--is not satisfied. But that is a merits question that the court cannot resolved as a jurisdictional issue at the outset.

And all of this asks the § 1983 question--did the named defendant "subject or cause[] to be subjected" the plaintiff to a violation of her rights. If the defendant is not responsible for enforcing the challenged law, the answer is no. Which again reflects failure of an element of a § 1983 action, not competing jurisdictional ideas.

Posted by Howard Wasserman on June 7, 2021 at 12:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 04, 2021

Mike Lindell sues Dominion

MyPillow CEO Mike Lindell's new lawsuit against Dominion is a rerun and expansion of the suit the company filed last month, throwing in a civil RICO claim along with more of the same absurd factual allegations about election fraud and nonsense constitutional arguments.

Lindell's state action arguments fail for the same reasons as MyPillow's state action arguments--Dominion does not "administer" elections beyond providing infrastructure (any more than the handcuff manufacturer uses excessive force) and, if it did, it does not become a state actor for all purposes beyond running those elections.

This is garbage on the merits. But there are procedural issues attached to both actions that are worth considering.

Both sets of claims could have been brought as counterclaims in Dominion's defamation action in the District of D.C. At bottom, both actions allege that Dominion's lawsuit is part of a campaign to silence Lindell/MyPillow about election fraud; both suits allege that the Dominion suit is an abuse of process and a First Amendment violation.

One question is whether they would be compulsory; the answer is probably not, because the MyPillow/Lindell claims do not arise out of the same transaction or occurrence as Dominion's claims. This illustrates a common sequence: X does something to injure A, A files suit to remedy that injury, and X files a counterclaim alleging that those remedial efforts violate X's rights. Most courts say this is not STO because the real-world events giving rise to A's claims are based on whatever X did, while the event giving rise to X's counterclaims is A filing that lawsuit. There is a but-for relationship: But for X's actions, A would not have sought remedy; but for A seeking a remedy, X would not have a basis to sue. But that is not the necessary logical connection between the real-world events. Here, MyPillow/Lindell made false statements about Dominion, Dominion sought a remedy by suing, and MyPillow/Lindell argue that suit is tortious/violates the First Amemdment/violates RICO; that is the but-for relationship courts deem insufficient.

Nevertheless, they could have been brought as permissive counterclaims--there is diversity jurisdiction and/or some of the claims arise under federal law.

A second question is whether personal jurisdiction and venue is proper in Minnesota. The action that MyPillow and Lindell challenge is the filing of the lawsuit, which took place in D.C. The question is the same as one I considered about the Texas heartbeat law: Is suing a Minnesota citizen (and serving process on that Minnesota citizen in Minnesota) outside of Minnesota sufficient to establish personal jurisdiction? Again, this arises in the legal-malpractice and patent context and courts seem split on it.

A third question is whether the court should transfer venue to D.D.C. A court in Minnesota would be reluctant to adjudicate a lawsuit challenging the validity of a lawsuit in another court while that lawsuit is ongoing, as both turn on the same underlying facts (the truth of Lindell's original allegations against Dominion). The convenience of witnesses and evidence would seem to favor transfer--the validity of MyPillow/Lindell's claims depends on the validity of Dominion's defamation claim, which is occurring in D.C. The "situs" of the events in the counterclaim is the situs of the allegedly abusive defamation action, which is D.C. I would think both cases are better litigated in the same place, if not the same action, as the underlying lawsuit alleged to be violative.

Update: Commentators elsewhere point out a choice-of-law problem. Lindell points to Minnesota law on the abuse-of-process claim. But the prevailing view is that such claims are governed by the law of the place in which the allegedly abusive proceeding was filed. In other words, D.C. law. Which makes sense. A plaintiff who chooses to file a claim that is not abusive in one jurisdiction should not bear the risk that it might be abusive in a different jurisdiction. The choice-of-law issue also affects the transfer analysis, discussed above. What law applies is one of the public-interest factors that gets balanced--if D.C. law applies, that will favor the Minnesota court sending the case to D.C.

Further Update: The attorney from the firm Barns & Thornburg, who signed the complaint as local counsel, has been defenestrated. The firm says it did not know about the lawsuit.

Posted by Howard Wasserman on June 4, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Breyer's first (and last?) assignment

I am late on this, but thought I would mention: The Court decided Van Buren v. United States on Thursday, holding that the Computer Fraud and Abuse Act did not reach a case in which the defendant lawfully accessed the computer for an improper purpose. The line-up was Barrett writing for Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, with the Chief, Thomas, and Alito in dissent.

That unusual line-up makes this (according to all-things empirical SCOTUS Adam Feldman) the first time Breyer has assigned a majority opinion. And since many on the left hope Breyer retires at the end of the Term and that line-up of Justices is unlikely to recur, perhaps his last.

Posted by Howard Wasserman on June 4, 2021 at 08:11 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 03, 2021

No standing when abortion law privately enforced

I mentioned the dry run for the standing/federal forum problems in challenging HB8 was a lawsuit over a Lubbock ordinance banning abortions within city limits and utilizing private enforcement.

The district court on Wednesday dismissed Planned Parenthood's challenge to the ordinance, finding PP lacked standing to sue the city. Because the city was not charged with enforcing the law and the city had no control over the private individuals who could bring private actions, there was neither causation nor redressability. The court (rightly) rejected the idea of a declaratory judgment or injunction against the non-responsible party as a way to persuade everyone else to comply. And the Fifth Circuit has precedent denying standing to plaintiffs in pre-enforcement challenges to laws that rely on private enforcement; apparently, Texas has attempted this in the past.

An alternative holding was Pullman abstention, as it is unclear whether a municipality has the power under state law to create private rights of action. The interesting piece there was over the source of the state-law ambiguity. The substantive provision challenged as violating the 14th Amendment--the ban on abortions--was not ambiguous; it was clear what the provision did. The ambiguity was over validity of the private enforcement mechanism. Both parties proceeded from the belief that any ambiguity must be "intertwined with" or directly related to the federal constitutional claim--that is, the ambiguity is in the substantive provision challenged on constitutional grounds. And in the mine run of cases it is--did the Railroad Commission have the power to enact the regulations or is the challenged law capable of a limiting construction. But the court did not find Pullman so limited. A state-law defect in any piece of the ordinance renders the entire statute invalid (or at least unenforceable), mooting the federal issue.

The case is on to the Fifth Circuit, which I expect to affirm. Meanwhile, we have a good sense of what will happen to pre-enforcement challenges to HB8.

Posted by Howard Wasserman on June 3, 2021 at 08:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 02, 2021

More stupid lawsuits, ep. 81

Something called the "Job Creators Network" has sued MLB, MLB Commissioner Rob Manfred, the MLBPA, MLBPA Executive Director Tony Clar, and a bunch of John Does, claiming constitutional (equal protection and Dormant Commerce clause) and contract claims over MLB moving the All-Star Game from Atlanta to protest Georgia's voter-suppression laws. Nothing new here; more bad lawyering by bad lawyers using the courts to make political noise. Some thoughts on where this goes wrong.

MLB Under Color:

The § 1983 claim depends on MLB acting under color. The complaint tries to get there two ways, neither of which works.

The first, passing argument, is that MLB is not covered by the antitrust laws, a substantial benefit. Receipt of governmental benefits, disconnected from the challenged conduct, is not sufficient to place a private actor under color. This is not a case in which government gave a private actor a benefit on condition of the private actor doing something constitutionally violative. Quite the opposite. MLB's decision to move the game pissed off some congressional demagogues, who threatened to strip MLB of its antitrust exemption.

Moreover, if the antitrust exemption were sufficient, the alleged benefit comes from the federal government, not the state or local government. MLB therefore would be color of federal law and this would be a Bivens claim (in a new context, so not going anywhere), not a § 1983 claim.

The primary argument is that MLB teams act under color by virtue of playing in publicly owned or publicly financed stadiums; thus MLB, as an association of those teams, acts under color. Two problems. First, while I agree that playing in public stadiums places teams under color for some purposes--namely running those ballparks during games--it does not make them under color for all purposes. The Yankees are perhaps bound by the First Amendment in regulating fans' cheering speech during games at the publicly owned stadium; they are not bound by equal protection in firing a ticket-office employee. So if the teams are not under color for all purposes, MLB is not under cover for all purposes. Second, and more conclusive, a private association of state actors located in multiple states does not act under color because it is not tied to the law of any state. The NCAA does not act under color despite having actual state entities--public universities--from multiple states as members. It follows that MLB, which stands in the same position to teams as the NCAA does to schools, does not act under color.

Diversity Jurisdiction:

This is minor and not outcome-determinative, but the Civ Pro geek in me remains amazed at how often lawyers get diversity wrong.

According to the complaint, the following is true: The JCN is a not-for-profit corporation, incorporated in DC with its PPB in Texas.  MLB is an unincorporated association whose members are the 30 teams; it is a New York entity with its PPB in New York. The MLBPA is the players' union, a New York entity with its PPB in New York. Manfred is a New York citizen and Clark a New Jersey citizen. The complaint does not say so, but I believe the plaintiffs see this as  JCN(TX/DC) v. MLB (NY), MLBPA (NY), Manfred (NY), and Clark (NJ).

But an unincorporated association's state of creation or PPB is irrelevant; what matters is the citizenship of its members. The complaint acknowledges that MLB's members are the 30 teams, all of which are corporations or unincorporated association; if the latter, we need further level(s) of inquiry as to the members/partners of each team and perhaps the members/partners of each member. MLB therefore is not a New York citizen (or not solely a New York citizen); it is a citizen of any state in which a member/partner in any team ownership group is a citizen. We do not know every state, I imagine at least one team has at least one member who is a citizen of Texas or DC. Similarly, a union's state of creation or PPB is irrelevant; it is a citizen of every state in which a union member is a citizen. Again, I imagine at least one current MLB player is a citizen of DC or Texas.

This does not matter to the outcome of the case, because the complaint alleges (and there is) supplemental jurisdiction over the state claims. But I become skeptical of any complaint when the attorney gets the basics so wrong.

Standing

JCN purports to be an association of small businesses injured by MLB moving the game. It asserts associational standing on behalf of its members and organizational standing for the time and money it has spent fighting MLB's actions.

The problem is that the claim seeks primarily damages as a remedy, whereas associational standing works in injunctive actions. One element of the Hunt test for associational standing is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Damage are, by definition, individualized to each plaintiff and thus require the participation of each member. The complaint attempts to get around that by asking the court to order that the defendants pay damages into a common fund, from which moneys are distributed to each plaintiff. But that is not how damages are calculated or awarded. I cannot think of a major constitutional case in which an association has been able to pursue damages on behalf of its members.

Remedies

The complaint asks for compensatory damages of at least $ 10 million and punitive damages of at least $ 1 billion, as well as an injunction ordering MLB to move the game back to Atlanta. That injunction is not happening. The punitive damages request is interesting because a punitive-damages ration exceeding 10:1 presumptively violates due process.

The least-stupid contract claim might be promissory estoppel, although that still fails. But even if it worked, the damages on a P/E claim are limited to what was spent in reliance on the promises, not what they would have made had the defendants followed through on their promise. Did businesses spend $ 10 million+ on the expectation of the game coming to Atlanta?

Whither the First Amendment

At its core, the claim here is that by engaging in the First Amendment activity of protesting Georgia election policy through its business decisions, MLB, et al. interfered with the power of Georgia to enact policy and the equal protection rights of those who support those policies. The Complaint spends some time defending Georgia's new laws, as if the propriety (in the plaintiff's views) of the laws lessens the First Amendment rights of those who protest. I do not believe the level of First Amendment protection for expressive activities turns on the "correctness" of the position asserted. That would have some broad implications.

Posted by Howard Wasserman on June 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, May 30, 2021

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

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

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

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

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

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

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

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

Saturday, May 29, 2021

State action and free speech at Yankee Stadium

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

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

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

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

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

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

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

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

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

Thursday, May 27, 2021

Even First Amendment violations are bigger in Texas

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

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

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

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

That did not take long

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

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

Preliminary injunction coming soon.

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

Further Updates on the procedure of the Texas fetal heartbeat law

A few points in update to my post on the Texas fetal heartbeat law and the procedural insanity it spawned, following some developments and some discussions on the Civ Pro Prof Listserv.

• My proposal (made not entirely seriously) that providers change domicile to create diversity and remove the enforcement action would not work. A listserv member pointed out that the district court upon removal would not dismiss for lack of standing, it would remand, putting the case back in state court. In addition, it would be too easy to avoid; Billy Bob could join a Texas-based doctor as defendant and eliminate complete diversity. I did not think that one all the way through.

• Another pre-enforcement option floated: Sue the state-court judge assigned to hear the private action. This raises the same Younger problems as suing Billy-Bob-as-state-actor, but not the state action problems. I do not believe this works for two reasons. First, a judge cannot be enjoined in the first instance in a § 1983 action; the plaintiffs must get a declaratory judgment first, then go back for a second round of litigation if the DJ is ineffective. Second, and more importantly, the judge is not the target of anti-suit litigation; the target is the litigant in that underlying litigation (such as the executive official charged with enforcing the law).  It would be highly unusual to enjoin a judge from allowing a case to go forward, although perhaps this is an extraordinary case.

• Some people seem a lot higher on the Lugar-based argument that Billy Bob acts under color. I hope not. I disagree with the Lugar line of cases and would not want it extended. And it would be deeply troubling if filing a lawsuit, without more, subjected someone to a § 1983 suit. Consider that MyPillow's lawsuit against Dominion, legal nonsense in current form, would look much different if this were the rule. I am more willing to go with the public-function argument, which is narrower and limited to a unique context in which a state delegates all enforcement to the private sector precisely to avoid pre-enforcement litigation. But I do not trust courts to find the nuance there.

• We have a test run for these arguments in a challenge to a Lubbock ordinance banning abortions within city limits and using private enforcement (although the complaint alleges some public-enforcement mechanisms, so it may be less clear than HB8). Planned Parenthood sued the city and the city moved to dismiss for lack of standing. Stay tuned.

• There is a separate question, which I am not competent to address, of whether Billy Bob will have standing to bring the private enforcement action under HB8. According to Charles "Rocky" Rhodes (South Texas), the expert on the Texas Constitution, Texas courts generally follow Article III standing doctrine, but are more accepting of standing when the legislature authorizes the suit.

• A wild proposal from a different emailer: What if a blue state created a cause of action against Billy Bob--allowing any person to sue for damages anyone who brings a claim under HB8? All sorts of extra-territoriality and personal-jurisdiction puzzles there.

• A different version: What if a blue state enacts a clawback statute, allowing anyone (or at least anyone within the blue state) held liable in a Texas HB8 suit to bring a claim in the blue state's courts to recover the amount paid in the Texas litigation. This raises a specific PJ question--is suing a New York corporation (knowing it is a NY corporation) in  a lawsuit that is tortious under New York law purposefully aiming actions at the forum for Walden/Calder purposes? (I believe there are legal malpractice actions that get at the same idea).

This also could raise issues about relationships among state judiciaries and whether the courts of one state can halt litigation in another. Countries enact clawback statutes designed to recover any judgment paid under the laws of another country (e.g., Japan allows a clawback action against U.S. antitrust plaintiffs). Federal courts are split on whether and why they can enjoin those proceedings to "protect or effectuate" their judgment in the underlying case. Could a Texas court, having issued a judgment for Billy Bob against Planned Parenthood, enjoin the NY clawback action?

Posted by Howard Wasserman on May 27, 2021 at 10:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 25, 2021

Against the Well Pleaded Complaint Rule

A point I neglected to make in my post on the Texas fetal-heartbeat law: This illustrates the strongest criticism and biggest problem with the Well Pleaded Complaint Rule.

The argument against the rule is that the benefits of a federal forum--uniformity, respect for federal rights, and expertise in federal law--apply regardless of where and how a federal issue arises. A federal forum is as necessary for a federal defense or a counterclaim as for a claim. Just as The New York Times would have liked a federal forum against Alabama officials using state-law defamation as the functional equivalent of seditious libel against truthful reporting of government misconduct, so does Planned Parenthood need a federal forum against random Texans attempting to bankrupt them into practically depriving women of their opportunity to engage in constitutionally protected activity.

Preenforcement challenges to state laws are important not only because it allows a rights-holder to assert her rights without having to face legal jeopardy, but because they give the rights-holder access to a federal forum. Combining purely private enforcement with the WPC deprives Planned Parenthood of any federal forum (save the unlikely SCOTUS review) in these cases.

Posted by Howard Wasserman on May 25, 2021 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Sunday, May 23, 2021

JOTWELL: Erbsen on Gluck & Burch on MDL

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. ___ (forthcoming 2021).

Posted by Howard Wasserman on May 23, 2021 at 02:25 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, May 20, 2021

Procedural morass of the Texas Fetal Heartbeat Law (Updated)

Texas Governor Greg Abbott yesterday signed SB 8, a "fetal heartbeat" law that bans abortions as early as six weeks. What makes this different than the spate of similar laws from red states is that the law is not publicly enforceable. Instead, it creates a cause of action for "any person" to bring a civil action against any person who performs or induces an abortion or who aides or abets the performance or inducement of an abortion, the latter covering paying, insuring, and reimbursing the costs of an abortion, as well as (I presume) publicizing the availability or option of abortion. Remedies include injunctions, statutory damages of not less than $ 10,000 per abortion, and attorney's fees.

This is a mess, although picking it apart will take work.

A

Josh Blackman is correct about two things.

First, the ordinary route to challenging abortion restrictions--Planned Parenthood or other doctors and providers of reproductive-health services brings a pre-enforcement § 1983/Ex Parte Young action against the governor, AG, Secretary of Health and Human Services, or other public official for a declaratory judgment and injunction prohibiting enforcement--is not available. Because no government officials are responsible for enforcing he law, there is no "responsible executive officer" to sue or to enjoin from enforcing the law. Courts may frame this a number of ways--lack of standing (because the officer does not enforce the law, the injury is not fairly traceable to the officer or redressable by an injunction), sovereign immunity (the elements of the EPY exception are not satisfied), or (my preferred way) that official is not violating the plaintiff's substantive rights. The legislature is immune from suit for enacting the law. And, in any event, the existence of the law (the thing for which the legislature is responsible) does not violate anyone's rights.

Second, the enforcement actions will stay in state court, because any federal defense that the law is invalid is not a basis for removal. One workaround on this would be for providers to reincorporate and/or change their principal places of business out of Texas. That would create diversity jurisdiction and allow for removal on that basis. And once the case is in federal court, the defendant should be able to have it dismissed for lack of standing. There could be fun games with the amount-in-controversy requirement. Attorney's fees are generally not included in calculating the amount in controversy, so that remedy is excluded from the calculation. Would a plaintiff limit the claim to recovering the statutory minimum and only for seven abortions to keep it under the amount? What is the "cost" of a prevented abortion procedure? Alternatively, would we see plaintiffs coming from outside Texas to bring these actions? "Oh, Planned Parenthood is incorporated in New York, let's find a New Yorker to bring this suit."

Alternatively, this is where § 1443 would come in handy, as it appears this law will deny defendants the ability to assert certain rights (see below). But that provision is limited to state laws that deny federal equal rights, not to laws denying non-equality constitutional rights such as due process.

B.

The law attempts to limit or deny defendants the right to assert the constitutional rights of women to challenge the validity of the underlying abortion fetal-heartbeat ban as an affirmative defense. This is framed as a limit on third-party standing and as a statutory provision codifying the requirements of the constitutional test. It also removes the affirmative defense if Roe or Casey is overruled, even after the challenged conduct.

This demonstrates the problem with using the language of third-party standing to describe constitutional challenges to laws regulating and criminalizing the conduct of the providers bringing these actions. It is not third-party standing but first-party standing, because the challenged law regulates the party to the action. These cases do not involve a law prohibiting conduct by 18-year-old men and a lawsuit brought by the bar owner injured by the loss of business. These cases involve laws prohibiting conduct by and imposing punishments on reproductive-health-services providers. Planned Parenthood is asserting first-person standing to raise its own rights not to be held liable or sanctioned under a constitutionally invalid law. True, the law is invalid because it violates someone else's constitutional rights. But the law still targets the party to the action, not the non-party rights-holder. This looks more like United States v. Bond, in which the Court held that a defendant can raise federalism and separation-of-powers defects in the law under which she is prosecuted, without viewing it as vicarious assertion of state interests.

I came up with the following analogy: A state wants to silence a critical newspaper. It enacts a statute prohibiting "mean and critical speech" and creates a cause of action to sue for damages and attorney's fees the companies that provide ink and paper to the newspaper that publishes mean-and-critical speech. I believe a court would allow the defendants to argue that the law is invalid because it prohibits protected speech, even if the speech regulated (thus the constitutional right violated) belongs to the newspaper and not the ink or paper companies. The companies' conduct is regulated by the law and thus they must be able to defend themselves.

Is the civil action under SB8 materially different from that case? In both, someone is being made liable under an invalid law. Maybe the difference is (or should be) between pre-enforcement and enforcement actions. We might limit who can bring pre-enforcement challenges and what rights can be asserted in pre-enforcement challenges. But those limitations should not apply when the invalid law is enforced to impose liability on someone; that defending party must be able to raise the full range of defects in the law to avoid liability and damages.

To the extent the statute purports to limit defendants' ability to challenge the invalidity of the underlying ban, does that violate procedural due process?

Again, this gets litigated in Texas state court. Will state courts faithfully apply SCOTUS precedent to this zombie law and dismiss the enforcement actions? The assumption is that they will not, contra the assumption of parity that guides the study of fed courts. And SCOTUS could review the underlying defenses that the law is invalid. Would SCOTUS touch this? Would a majority object to the temerity of either the state legislature for enacting this or for the state courts in disregarding current precedent?

C.

An Erie problem, because this disaster has everything. Section 4 provides that an attorney or organization who unsuccessfully challenges the validity of any state law regulating or restricting abortion or funding of abortion or represents a plaintiff in an unsuccessful challenge, in state or federal court, is liable for the defendant's attorney's fees.

It is pretty obvious this cannot apply in federal court. An Act of Congress controls the question of attorney's fees in constitutional actions in federal court--§ 1988, which has been interpreted to make fees virtually automatic for prevailing plaintiffs but recoverable by prevailing defendants only if the case was frivolous and even then relatively rarely. So there is no room for the state law, which directly conflicts with § 1988, to operate.

Section 4 circumvents problem by providing a distinct cause of action to recover attorney's fees within three years of the end of the prior litigation. So a plaintiff who prevails in federal court could bring a new lawsuit in state court seeking fees. Does that create a converse-Erie problem?

D

This is a good, if unfortunate, lesson that most people in law and politics do not take procedural arguments seriously, but use them as cover for substantive preferences. The conservative legal project for 30+ years has been limiting standing and causes of action in environmental- and consumer-protection cases, including using Article III to defeat legislative efforts to enable private enforcement. I guess those limitations do not apply in the areas some people care about.

E (Update)

This is becoming a Fed Courts exam.

A reader proposes that the private state-court litigation under invalid state law equals state action under Shelley v. Kramer and New York Times v. Sullivan. So perhaps Planned Parenthood can bring a § 1983 action against the Texas plaintiff once the lawsuit is filed (but perhaps before service), seeking to enjoin the private action because the underlying law is invalid. I do not think it works, but it is worth exploring.

I describe this situation as state action without a state actor (or a person acting under color of law). There is state action in the creation of state law (statutory or common law) and its enforcement in state courts, thus the Constitution plays a role as a defense in the private litigation. The Shelleys could argue that equal protection means they must prevail in the state-court action to divest them of title to the property, The Times could argue that the First Amendment means it must prevail in the state-court defamation action, and Planned Parenthood could argue that due process protects it from liability for performing or facilitating abortions.

But it requires another step to say that Kramer (the neighboring property owner), Sullivan, or Texas anti-choice advocate Billy Bob Smith is a state actor (or acts under color of state law) and thus is subject to a § 1983 suit for filing those civil actions.  That generally does not happen in these state tort cases with constitutional undertones. And rightly so. A private person who avails himself of state law and state processes, even if constitutionally invalid, does not become a state actor and should not become a state actor. Think of the major constitutional decisions involving state tort or other causes of action; all arose as defenses in the civil action rather than by suing the would-be state plaintiff in federal court. Lugar v. Edmondson Oil represents the exception, where the Court found state action because the use of state law (ex parte pre-judgment attachment) required coordination with the clerk of court and the sheriff, so it was more than availing oneself of state law. (Lugar does the state-action work in the series of post-Janus actions to claw back previously paid agency fees). I happen to believe Lugar is wrong. If we are stuck with it, however, it should not extend to the situation of filing a lawsuit under presumptively valid state law.

On the other hand, let me try a different state-action argument that might work. Texas enacted a new law banning some conduct, then delegated to private individuals lacking any connection to the conduct at issue the exclusive power to enforce that law while declaiming all governmental enforcement. And it declaimed government enforcement specifically to prevent pre-enforcement challenges. Perhaps enforcing state law is a "traditional-and-exclusive government function," delegation of which creates a state actor. This is not to say that every private attorney general acts under color. But perhaps it is different if the government turns all enforcement to the private AG. That argument is at least non-frivolous.

If Planned Parenthood could get past that state-action problem, another hurdle awaits--Younger. In the ordinary case, Planned Parenthood would bring a pre-enforcement action in federal court against the responsible executive official to enjoin enforcement. But it has a time window in which to act--if the state initiated an action to enforce the abortion ban, Younger prohibits Planned Parenthood from running to federal court to enjoin that pending enforcement action. Under HB8, however, Planned Parenthood cannot sue the private plaintiff because it has no idea who the private plaintiff will be--it could be anyone. So it must await for Billy Bob to identify himself by filing the lawsuit, at which point Younger arguably kicks in.

But Younger is uncertain in three respects. First, under Sprint, Younger bars federal actions in deference to three classes of state litigation--criminal cases, civil enforcement actions brought by the state, and ordinary civil litigation involving court orders that are uniquely central to the state court's authority (e.g., contempt and pre-judgment attachment). Billy Bob's lawsuit does not fall within any of those three, unless the court extends the second category to include civil enforcement by a private attorney general. Second, if Younger applies to this type of case, it would test Younger's "flagrantly and patently violative" exception, because it is hard to imagine a law more flagrantly and patently violative under Roe/Casey than a ban on abortions at six weeks, before many women know they are pregnant. Finally and alternatively, this might fit the bad-faith exception, because the plaintiff could not win a valid (under current judicial precedent) judgment. A district court held earlier this year that the exception applied to a new action to sanction Masterpiece Cakeshop for refusing to back a cake for a trans woman following the SCOTUS decision. It is even more obvious that a fetal-heartbeat law is invalid under Roe/Casey and that any judgment would be invalid.

Posted by Howard Wasserman on May 20, 2021 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 17, 2021

Fed Courts Day at SCOTUS

Monday was the seemingly annual day in which the Court drops multiple Fed Courts decisions.

CIC Servs. v. IRS held unanimously that an action challenging the validity of a reporting requirement, even one backed by a tax penalty for noncompliance, is not barred by the Anti Injunction Act. The Court identified three features that define whether the purpose of an action is to restrain assessment or collection of a tax: Whether the challenged rule imposes costs separate from any tax, how attenuated the tax payment is from the challenged rule, and whether noncompliance is enforced through non-tax mechanisms, such as criminal penalties. Justice Sotomayor concurred to suggest the answer might be different in a challenge brought by a taxpayer as opposed to a tax adviser (the plaintiff in this case), because those three features, especially costs, play differently for the taxpayer. Justice Kavanaugh concurred to seemingly broaden the Court's opinion as allowing all challenges to regulations backed by tax penalties ("Do X or pay a tax penalty) even if the result of a successful suit would preclude assessment or collection of a tax. Would his reading mean that the ACA individual mandate was not barred by the AIA not because it was not a tax, but because it was a regulation backed by a tax penalty?

B.P. v. Mayor of Baltimore held 8-1 that when a case is removed in part under § 1442 (federal-officer removal) and the district court remands, all bases for removal may be raised on appeal, even those bases for removal that could not have been appealed independently. Section 1447(d) says "order remaning," which includes all possible bases and grounds for the order remanding. Justice Sotomayor dissented and I think has the better of the argument; the text is not as clear as the majority suggests and the potential mischief--borderline frivolous federal-officer or civil rights removal followed by appeal of other grounds not otherwise appealable--would undermine the purposes of § 1447(d) in limiting appeals of remand orders.

Edwards v. Vannoy held 6-3 that Ramos v. Louisiana (holding last term that the Sixth Amendment required unanimous juries) did not apply retroactively to habeas actions. The Court held that new procedural rules cannot apply on habeas, eliminating Teague's exception for "watershed" rules of criminal procedure because no rule had ever been held to be such a watershed. Justice Thomas (joined by Justice Gorsuch) concurred to argue that the case should have been resolved under AEDPA--the state court's decision upholding Edwards' conviction could not have been unreasonable prior to the Court changing the law in Ramos. Gorsuch (joined by Thomas) concurred to provide a disquisition on the history and evolution of habeas to argue that modern habeas review of state court judgments does not reflect the original purposes of habeas corpus and does not authorize federal courts to reopen final state court judgments. Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.

Apart from the details, the case included one interest exchange. Justice Kavanaugh wrote the majority here and supported the judgment in Ramos (he joined Gorsuch's plurality in part and concurring in part), while Kagan dissented in Ramos and here. Kavanaugh objected to Kagan criticizing the Court was failing to live up to the promise of Ramos and "impugn[ing]" the Court for shortchanging defendants. Kavanaugh argued that defendants are better off under his (and the Court's) view--some defendants (those whose cases are pending and whose convictions have not completed direct review) benefit, even if not all do. That is better off than if Kagan's view in Ramos had prevailed. Kagan responded that the force of stare decisis shifted--it supported her position in Ramos, but Ramos having been decided as it was, stare decis "was on its side" and the Court must "take the decision on its own terms, and give it all the consequence it deserves." Given recent stories about Kagan's efforts to reach out to Kavanaugh, Kavanaugh seemed put off by Kagan "rhetoric" and what he perceived as an implication of bad faith.

Posted by Howard Wasserman on May 17, 2021 at 02:01 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 14, 2021

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Prosecution's evidence:

    • Dawson and Downey attacked Santiago, stuffed a rag in his mouth, and Santiago died.

    • The doctor testified that the rag was poisoned, largely based on the results of the autopsy and the cause of death.

    • Kendrick testified that he ordered the men in the unit not to touch Santiago, however much they might want to.

    • Santiago was scheduled to be transferred the next morning, so Kendrick and Jessup had not reason to "train" him through a Code Red.

    • Dawson had motive--Santiago threatened to report Dawson for a fence-line shooting. It is not clear what Downey's motive was--following Dawson, I guess.

Defense evidence:

    • Dawson had previously ignored orders and helped a Marine who was being denied food as a Code Red; his performance ratings and the speed of his promotions dropped.

    • Code Reds (Codes Red?) were a thing at Gitmo, it was in the air, and everyone knew about them.

    • Dawson protected Santiago. The men in the unit knew that and would not have given him a Code Red because Dawson would not have allowed it.

    • Santiago had not packed and had not told family that he was being transferred (although he was supposedly being transferred not discharged, so I am not sure whom he was supposed to tell).

    • Men follow orders or people die.

    • We did not see it, but there almost certainly would have been other positive character evidence on the defendants, who were, before this, "poster-child marines."

    • The doctor's testimony changed--initially inconclusive, then certain about the presence of poison.

Kaffee's closing: Much of what Kaffee does in examining witnesses, especially Jessup, would properly have occurred during closing and could have been effective then.

    • Inconsistency between the supposed transfer and the supposed order not to perform a Code Red, given that men follow orders. Both were designed for Santiago's protection, but there is no reason to issue both. Combined with Santiago not having packed and being asleep four hours before his flight, it seems unlikely that he was being transferred. So the plan was to tell the men not to touch Santiago.

    • Dawson had gotten in trouble for ignoring orders, so he would not have ignored Kendrick's order not to touch Santiago. Especially given his history of protecting weaker marines, including Santiago. Dawson would not disobey an order anymore and he would not attack a weaker marine. For him to do this, he must have been ordered.

Reasonable doubt?

Posted by Howard Wasserman on May 14, 2021 at 09:31 AM in Film, Howard Wasserman | Permalink | Comments (5)

Thursday, May 13, 2021

Fed Courts Puzzle

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

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

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

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

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

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

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

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

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

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

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

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

Monday, May 10, 2021

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

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

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

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

Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

End of (snow) days

I called this one.

Because everyone in my family was teaching and/or learning remotely for much of this academic year, we spent six months (mid-August to mid-February) in the Philly suburbs. We experienced the snowiest Philly winter in about a decade, with three major (6"+) snowstorms and 2-3 snow days. While taking a family walk in the snow, I wondered whether the year of remote learning signaled the end of the snow day--schools would shift to remote learning on those days in which weather prevents students and teachers from getting to the building.

New York City announced the elimination of snow days for the 2021-22 academic year, continuing the practice of the past year for many school districts. It made sense this year, when many schools were doing an in-person/remote hybrid; if half the school would have been remote, it made sense to make everyone remote for the day. But presuming schools are back to normal and everyone is in-person next year, this represents a major change, shifting the entire school from in-person to remote for the day. The arguments for this are clear--eliminating snow days gives the district control over the academic calendar and avoids the risk of the school year running (in the northeast) into late June. The arguments against it sound in nostalgia for the snow days of our youth.

In Miami, we do not have snow days, we have hurricane days. Eliminating these off-days is not an option, because a storm severe enough to close schools likely knocked out power and internet for teachers and students. On the other hand, kids cannot go out and play in the hurricane or its aftermath, so no one misses anything fun.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Oral arguments

With the exams about over, I come to my favorite days of the semester today and tomorrow: Oral Arguments in my Fed Courts and Civil Rights classes. Each student argues one case before SCOTUS and serves as Justice on one case as a final project; the cases are recent decisions from lower courts. Ordinarily, the class spends the day in the courtroom watching one another and we bring in lunch and coffee; this semester will be via Zoom, hopefully for the last time.

This is a fun exercise. It gives students another chance to do oral advocacy, which many do not do after 1L legal writing. It allows me to engage the students to see how well they can talk about material, outside the formalities of a paper. The list of this year's cases is after the jump (case numbers are made up, usually representing key dates in my family).

Federal Courts:

New Hampshire v. Massachusetts, No. 21-0526

      Motion for Leave to File Bill of Complaint on Original Jurisdiction

      Issue Presented: Whether this Court must and should exercise original jurisdiction over an action by one state challenging another state’s collection of income tax from non-residents.

 Shands Teaching Hosp. & Clinic v. Morgan, No. 21-0520

      Issues Presented: Whether a federal district court has subject matter jurisdiction over action for a declaratory judgment that plaintiff has no obligation to comply with state law to disclose medical records because state law is preempted by federal law.

Waterfront Comm’n of New York Harbor v. Murphy, No. 21-1028

      Issue Presented: Whether an interstate compact agency can sue a state official under the doctrine of Ex Parte Young to prevent that official from implementing a state law that would be preempted by the terms of a congressionally approved interstate compact.

Nike, Inc. v. Fleet Feet, Inc., No. 21-1227

      Issues Presented:

      (1) Whether appeal of preliminary injunction becomes moot where the injunction restrains defendant from designating “confusingly similar” marks, where the time period in which the defendant wanted to use the challenged mark has passed.

      (2) Whether, if the appeal is moot, vacatur of a preliminary injunction is proper under United States v. Munsingwear, Inc.

 

Civil Rights:

Campbell v. Reisch, No. 21-0526

      Issue Presented: Whether an elected state representative acts under color of law in blocking an individual from accessing the social-media account she uses to publicize performance and accomplishments as a state representative.

Janus v. American Federation of State, County and Municipal Employees, No. 21-1028 (Diamond v. Pennsylvania State Education Ass’n, No. 21-1227 (Consolidated))

      Issues Presented:

        Whether public-employee labor unions acted under color of state law in collecting fair-share fees from non-union members pursuant to state law mandating such fees, so as to be subject to suit for damages under § 1983 for violating the First Amendment.

        Whether § 1983 recognizes a good-faith immunity allowing public-employee labor unions that act under color of state law in collecting fair-share fees from non-union members pursuant to state laws mandating such fees to avoid liability for damages for violating the First Amendment.

Fowler v. Irish, No. 21-0520 (Robinson v. Webster County, No. 21-0303 (Consolidated))

      Issue Presented: Whether state officials can be liable under substantive due process for injuries caused by non-governmental third persons, contrary to this Court’s decision in DeShaney, under a “state-created danger” theory.

Nance v. Commissioner, No. 21-0423

      Issue Presented: Whether death-row inmate’s claim that state’s lethal-injection protocol would cause undue suffering in violation of the Eighth Amendment and seeking to require the state to employ an alternative method of execution is cognizable under § 1983.

Polk County v. J.K.J. No. 21-0515

      Issue Presented: Whether a municipality can be liable under Monell for sexual assaults of detainees committed by a corrections officer, where county policy prohibited sexual contact between guards and inmates and the county knew of sexual assaults by other officers but not the officer involved.

Mack v. Yost, No. 21-1216

      Issue Presented: Whether federal inmate can seek damages for First Amendment retaliation under Bivens against prison officials who fired him from his paid prison job for complaining about anti-Muslim harassment by correctional officers.

Thomas v. Freed, No. 21-0428

      Issue Presented: Whether § 1983 action challenging state’s failure to return excess proceeds from foreclosure sale of real property is barred by the Tax Injunction Act, § 1341.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the dirt and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, April 28, 2021

Can kids be assholes? And other thoughts on Mahanoy arguments

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

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

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

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

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

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

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

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

Monday, April 26, 2021

AALS Art Law Section Program on Painting Constitutional Law

The AALS Art Law Section will host Painting Constitutional Law—An Author Discussion, 2-3:30 p.m. EDT, Tuesday, April 27.

The panel will discuss Painting Constitutional Law: Xavier Cortada’s Images of Constitutional Rights, the book co-edited by my FIU colleague M.C. Mirow and me. Speakers will include Cortada, whose painting series inspired the book; Corinna Lain (Richmond); Linda McClain (B.U.); and Laura Underkuffler (Cornell).

Register here.

Posted by Howard Wasserman on April 26, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Saturday, April 24, 2021

JOTWELL: Coleman on Gadson on stolen plausibility

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L.J. ___ (forthcoming 2021), on courts preventing plaintiffs from relying on facts from other cases and other investigations as a way to satisfy Twiqbal.

Posted by Howard Wasserman on April 24, 2021 at 10:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)