PrawfsBlawg

Easy First Amendment cases

I wrote last week about a Sixth Circuit decision holding that the First Amendment protects a group of anti-Israel protesters who have protested outside an Ann Arbor synagogue every Shabbat since 2003 from an intentional-infliction claim by two members of the congregation. My post focused on the stupidity of standing and how it got in the way of the case--the district court dismissed for lack of standing (emotional injury insufficiently concrete) and the concurring judge agreed with that conclusion, while the majority said there was standing (obviously) but the claim fails under the First Amendment.

I did not write about the First Amendment issues because the case was (or would have been, if the district court had not injected standing into the mix) so obvious and easy. The protesters are on the public sidewalk in front of and across the street from the synagogue, both traditional public forums. They do not block the entrance, nor do they attempt to approach people entering the synagogue (so this does not look like the activity outside clinics). Their signs and chants are obnoxious and hateful. Protesting Israel in front of a synagogue is anti-Semitic, the paradigm conflation of Israel with Judaism and Jews. But nothing described in the opinion comes close to falling outside First Amendment protections or the source of liability.

But this Jewish News Syndicate column by Nathan Lewin sees this case as the first step towards enactment of Nuremberg Laws and a program of organized murder. He likens this to spray-painting a swastika on a temple. And to the cross-burning in Virginia v. Black, ignoring that Black and his fellow defendants won because the state had not (and in Black's case could not) prove intent to intimidate. He insists that these messages in this location are not trying to persuade, so they must be trying to harass and intimidate. But speech can do a lot in the vast space between pure rational persuasion and unprotected intimidation. I doubt Paul Cohen (to keep it mischpacha) or Brandi Levi (who is not, but everyone thought she was) was trying to rationally persuade anyone.

Lewin insists "there are solid reasons in federal and Michigan law o sustain the Jewish worshippers’ claim that gatherings and placards designed to harass and intimidate Jewish worshippers are not shielded by the Constitution." He does not  identify those reasons; the best he has is that the majority acknowledged that the case is not frivolous (and thus not dismissable for lack of jurisdiction), which is not much to hang onto. He is right that placards designed to harass and intimidate are not protected. The problem is that no facts show an intent to harass or intimidate and likely cannot, given how intimidation is understood in Black. Nor does he mention Skokie, which would seem to defeat any suggestion that parading anti-Semitic messages in a space with a lot of Jews loses constitutional protection.

Lewin is a well-known First Amendment attorney who litigated several significant religious-liberty cases. (He does not seem to like Judge Sutton, who wrote the majority, taking the time to point out that Sutton argued City of Boerne, as if to suggest Sutton is opposed to religious liberty). But this screed disregards basic free-speech principles, although I am not sure towards what end.

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.

 

The judicial departmentalism of SB8

On an emergency episode of the Divided Arguments podcast, Will Baude and Dan Epps discuss SB8 and SCOTUS's refusal to stop enforcement pending litigation. Dan attempted to distinguish a longstanding law whose constitutional validity was newly called into doubt by a change in Court personnel and constitutional doctrine from a new law enacted in the face of contrary precedent and designed to change precedent against long-protected rights-holders. The former includes the handgun restriction declared invalid in McDonald or the abortion law declared invalid in Roe; the latter includes SB8 and other new abortion restriction. Rights-holders should be protected and free to exercise their rights during litigation. But that problem arises in the latter class but not former class. In the former, rights-holders have not been exercising their rights (which had not existed), so they lose nothing having to wait for resolution of litigation. In the latter, rights-holders have been exercising recognized constitutional rights for years, so they bear a risk of losing long-recognized rights in the interim.

It is an interesting distinction, especially for how we understand zombie laws.

The problem is that--regardless of the source, timing, or nature of the law--constitutional decisionmaking must follow regular judicial processes. That need not and cannot always entail offensive pre-enforcement litigation in which a federal court preliminarily enjoins enforcement pending the completion of litigation. And such offensive litigation remains limited to the parties to the action--any further compliance is voluntary.

It may be, as Dan argues, that the Court would have responded differently to a law prohibiting gun ownership and allowing "any person" to sue a gun owner. But the Court's inconsistency (hypocrisy?) should not obscure the procedural rules. The answer is that the Court should act appropriately as to the guns law, not that we should urge the Court to act inappropriately as to the abortion law.

SCOTUS denies interim relief in SB8 litigation (Updated)

SCOTUS denied interim relief in the SB8 litigation, emphasizing the uncertainty of whether there is a proper defendant in the case. The Chief, Breyer, Sotomayor, and Kagan dissented. I will have some thoughts once I get out of class.

Update: OK, done with class. I actually discussed this in Fed Courts, something I ordinarily don't do--we have not gotten to standing or EPY yet, although we were in the middle of SCOTUS review of state courts and I was about to talk a bit about the shadow docket. It was a pretty good discussion. I think I will use this law and this case as a case-study when we come back to later topics.

Thoughts on the order:

• Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.

• I think the procedural discussion reduces to this question: Is Ex Parte Young/pre-enforcement offensive litigation required by the Constitution. Breyer cites Marbury for the proposition that when a right in invaded, the law provides "'a legal remedy by suit or action at law." This is true when the right is invaded outside of court--defaming me, hitting me with a car, or not giving me my commission. But here the right is invaded inside court, when someone attempts to enforce a law against me. In that case, I have a legal remedy in the form of a defense. If that is not sufficient, then Younger, limitations on habeas, and other doctrines that channel certain federal issues into defensive state-court litigation are invalid. Maybe that is true, but I do not know that Breyer is going that far.

• The related problem is whether the existence of a law equals a constitutional violation. Again, I think Breyer assumes it does. Which explains his demand for offensive litigation--the "injury" is the existence of the law, so there must be an offensive remedy. But if the existence is not a violation until enforcement, it does not work.

• Breyer says a case could proceed against "those particularly likely to exercise the delegated powers." This is correct. The problem is no such person has been identified. When has has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help--even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim. Not sure Breyer recognized that.

• Michael Dorf has a good post and discussion on some issues.

District court finds standing in SB8 litigation

Opinion here finding standing as to all defendants, contrary to much (but not all) of what Rocky and I argue. There is a joke in here somewhere about either judges or law professors not knowing the law, although obviously I think we are right and the court is wrong. The defendants filed a Notice of Appeal, which I presume they will argue, and the court will treat, as a petition for writ of mandamus since there is no basis for appeal (no finality, no collateral order, no certification of interlocutory review and no possibility of certification). This is a good case for mandamus because parts of this decision are clearly erroneous.

I will post some analysis of the opinion this weekend, as we begin editing the article to discuss and critique the opinion.

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.

A parade of stupid over "Fuck Biden"

Not content to let Roselle Park, NJ be the epicenter of First Amendment stupidity, Blue Rapids, KS, a town of about 1000 people, has taken aim at a yard sign reading "Fuck Biden and Fuck You For Voting for Him" (a cute addendum that makes the political the personal). As in Roselle Park, the town has cited him for a violation of its obscenity ordinance, following a citizen petition objecting to the sign. This story mentions that Evansdale, IA managed to resist the urge to be equally stupid with the same sign.

This is becoming a recurring theme, so a primer for small-town mayors and their lawyers who should know better:

• Bad words such as "fuck" are not obscene as that word is understood in the First Amendment, therefore a municipal obscenity ordinance cannot be the basis for regulating such a sign. There is nothing about the message "fuck ____" that is erotic (to say nothing of prurient) or that depicts or describes sexual activity. And if the thing the sign wants to "fuck" is the President of the United States or his voters (or the draft or cheerleading or anything else), that sign has serious political value. It does not matter that people "think" the sign is obscene and a lot of people signing a petition expressing their view that it is obscene does not establish "community standard" (both of which feature in the Blue Rapids debate).

• "Fuck ____" as a non-sexual political message is constitutionally protected speech under Cohen, reiterated in Mahanoy. There is no community-standards piece to this. Community offense at a political message does not strip that message of protection. Quite the opposite--the message needs protection because of the community opposition.

• "Think of the children" is of limited value where speech reaches a mixed audience of adults and children, especially for a person speaking to the world from the unique forum of her home. Government cannot limit adults to seeing what is fit for children. It follows that government cannot limit a speaker to uttering what is appropriate for children on the chance that some children might happen upon her message.

• Blue Rapids Mayor Jerry Zayas says "the matter belongs in the hands of the court" and "'Whatever the court decides, that is our justice system.'" This is an absurd statement from an elected official. The court decides only because Zayas lacks a rudimentary understanding of free speech and gets the courts involved by attempting to enforce this ordinance in a way at odds with the First Amendment. He could have followed the lead of the town in Evansdale, which, politics aside, recognized what the First Amendment commands. Of course, Zayas can be a good departmentalist and follow his (erroneous) constitutional understanding to enforce the law and force the court to rule.. But it would be nice if the public was aware that the mayor was costing it money it probably does not have on a cause that he (or the town lawyer) should will lose badly once the court does decide.

• The ACLU is involved, so, as in Roselle Park, this will be over quickly.

• How many cases like this will we see?

Embrace the judicial departmentalism (Updated)

I do not know enough to say whether the CDC's new eviction moratorium is constitutionally valid, although if Steve believes it is at least an open question, I am inclined to think it must be.

I would have loved for Biden to own the judicial departmentalism underlying the new policy: "Most constitutional law professors believe the policy is constitutionally invalid, but we have found some who disagree. Lawyers within the executive branch disagree. The courts may rule against us, as is their power. But for the moment we believe the policy is valid and will pursue it. And if it turns out we are wrong, we have bought ourselves some time. And in this case, we are willing to risk the attorney's fees and political fallout." I have no problem with the executive taking that position, regardless of my sympathy for the policy at issue.

Update: Mark Tushnet makes a similar argument, framing it in terms of norms v. law v. constitutionalism. But he gets at the same point: Biden and the CDC are not not enjoined from stopping evictions and can continue to pursue what they view as the best course until such injunction comes. And they can balance the benefits of even temporary relief against the cost of being liked to Orval Faubus.

Another Update: This Washington Post op-ed shows how far into judicial supremacy much of the commentariat fallen. The unexplained votes of four Justices to vacate a stay of an injunction pending appeal plus the view of one Justice--announced without full briefing or argument--that the policy is unlawful means any effort by the administration disregards the courts, the rule of law, and the Constitution. The possibility that the one Justice whose views we know might change his mind is "unlikely," therefore the CDC is acting in a constitutionally violative manner in trying. This eliminates Holmes' bad person (which Tushnet references), who is no longer entitled to try to predict what the courts might do.

The piece ends on this note:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

Nothing like some uninformed both-siderism to complete the puzzle. But note how this moves the line. The problem here is not that the executive ignored an injuncti0on, which the cannot do. The problem here is not that the executive ignored binding precedent created by a Court majority, which he can do. The problem here is that the executive ignored a "direct warning" (is there any other kind?), which the Post regards as an equivalent affront to the courts and the Constitution.

Terms limits and judicial reputations

At last week's hybrid SEALS, I moderated an excellent discussion group on court reform. Tom Metzloff (Duke) raised an issue for term-limits proponents--what do we lose or gain by cutting long-serving Justices' careers in half. Among historically great or significant Justices who served way more than 18 years, how much of their greatness or significance occurred within the first 18 years and how much in the back end of their tenure? Alternatively, how much did their later years add or detract from their achievements in those first 18 years?

Tom plans to do more with this, but I wanted to muse on a few names in skeletal fashion; there is a lot more to say in a lot more detail. Two observations. First, how we remember any Justice depends in part on historical vagaries and how those changes alter that Justice's role on the Court. Second, politics and partisan preferences affect whether we see those latter-half achievements or actions as good or bad.

Justice Brennan (1956-90; would have retired in 1974): Brennan's 34-year career divides almost cleanly in half. Until 1969, he was Warren's consigliere on a liberal (later overwhelmingly liberal) Court; for the last 20 years, he was the most influential (and beginning in 1975 senior-most) Justice in a liberal minority. How would we remember Brennan if he only had that first half as the intellectual leader of the liberal majority rather than the second half as great dissenter? This split is historically contingent--had Johnson succeeded in replacing Warren and/or had Fortas not been forced to resign, the Court would not have shifted as much as it did in the first three years of Nixon, leaving Brennan more in the Court's majority for at least a few more years.

Justice Stevens (1975-2010; would have retired in 1993): His first eighteen years were largely non-descript, mostly part of a large middle with an occasional individual voice. His final 15 years were among the longest periods as senior-most Justice in the minority of an evenly divided Court, which is the role for which history will remember him.

Justice Holmes (1902-32; would have retired in 1920): Retires the year after his Abrams dissent. He loses 12 years of continued First Amendment dissents, as well as Buck v. Bell, which remains a stain on his record.

Justice Thomas (1991-Present; would have retired in 2009): Thomas's last twelve years (and counting) have been a more confident and aggressive version of his first 18--solo opinions staking out iconclastic positions, unbound by precedent, and willing to challenge many jurisprudential sacred cows. Is he doing this more than he did prior to 2009? Again, how you feel about this depends on how you feel about the positions Thomas stakes out.

Chief Justice Rehnquist (1972-86; 1986-2005; would have retired in 199o): Like Brennan, Rehnquist enjoyed two quite distinct careers of almost equal length--Most conservative member of the Burger Court authoring many separate opinions and influential Chief Justice. Probably never gets the latter job, because Reagan would not have elevated him if he was four years from retirement.

Chief Justice Taney (1836-64; would have retired in 1854): Off the Court three years before Dred Scott.

We can play this game with a lot of Justices who served 25+ years and this is only intended as an outline. I think Tom is onto something good.

SB8, racist speech, and partisan presumptions

Concerns about the process of SB8--privatizing enforcement, preempting offensive pre-enforcement litigation, and pushing rights-holders into a defensive posture--come from the left. So do fears that this could catch on. In urging the invalidity of this enforcement framework, the Whole Women's Health Complaint argues:

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.

But is this limited to conservative attacks on liberal rights-holders, as the complaint offers (other than the gun-rights example)? Could liberals use private enforcement and would the political alignments and arguments flip?

Imagine a state wants to eliminate racist speech. It prohibits the oral, written, non-verbal, or symbolic expression degrading or dehumanizing a person based on race and creates a private tort action for damages and attorney's fees for "any person" offended or bothered by such expression. This law violates the freedom of speech as currently judicially interpreted to the same degree that SB8 violates the right to reproductive freedom. But a would-be racist speaker (e.g., someone who wants to burn a cross on his own lawn or  display a "White Lives Matter" sign or stand on the corner and shout that only white people should be allowed to vote) could not bring an offensive action to declare the law invalid or stop its enforcement. As with SB8 actions, there is no one causing the racist speaker an injury, no one to sue, and no one for the court to enjoin. Such a racist speaker must continue to engage in his racist speech, get sued by that random "any person," and raise the First Amendment as a defense. Or he will refrain from speaking from fear of suit and liability. Either way, the point of the law is to chill or sue racist speakers into silence.

Would those on the left objecting to SB8 object to this strategy of silencing racists and racist speech? If not, is the reason that liberals favor the right to reproductive freedom affected by SB8 while opposing or wanting to limit the right to engage in racist speech? And can that be an acceptable distinction?

More on Fuck Biden signs in NJ (Updated)

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

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

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

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

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

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

A

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

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

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

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

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

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

B

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

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

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

C

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

Cosby, justice, and what we teach our students

The following is by my FIU colleague Scott Fingerhut, who is Assistant Director of the Trial Advocacy Program and practices criminal defense.

 

 

The call of my summer criminal procedure class is for each student to come to terms with what justice looks like to them. 

Not an easy task, particularly in America today.

But in the two weeks since Bill Cosby was freed, I sense a reckoning, something of what Dr. Cornel West must have meant when he said,  “justice is what love looks like in public.”

For all his wretchedness, give America’s Dad credit: He confessed when he said he would.

Sure, maybe not in full.  And yes, only when his liberty was no longer at stake.

Yet still, he kept his word.  And so, then, should the prosecutors have kept theirs, as the Pennsylvania Supreme Court held. 

A matter of pure contract – reliance, to his detriment, upon an offer for consideration, and then, estoppel.

Justice. 

And not a bitter pill to swallow at all.

For as we continue on our mutual journey to repurpose America, in this season of accountability and rethinking lusts for power in quests for liberty, Cosby delivers yet another powerful teaching moment – on how sacred is honor.

Promises made, promises kept, in court and out.

And make no mistake: for many, too many, this is a message that can and must indeed be taught.

Honor, like humility, is an elusive quality, to be sure, but one that is, in fact, possible to define, able to be told, and capable of being understood, all deference to Justice Jackson.

Honor is the soul of our profession, and a core of criminal justice.  This the Court spoke, in Santobello and Brady: “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

And that our students must really know.  That it will be up to them to do justice.  And to do justice, they must know justice, feel it, in their bones.

That the iron in their word is their bond. 

And that (the wisdom of all prosecutorial decision-making in this case aside) means celebrating, not lamenting, Cosby’s release.

For without honor, what is there left to be taught?

Six months before his death, upon accepting the Liberty Medal at the National Constitution Center in Philadelphia, Thurgood Marshall continued to impress that “[t]he legal system can force open doors and sometimes even knock down walls.  But it cannot build bridges.  That job,” he said, “belongs to you and me.”

Lawyer as bridge-builder. 

Law student as constructor-in-residence. 

So, thanks for the lesson, Mr. Cosby.

Contrary to most of the press, your case has nothing to do with celebrity, and everything to do with honor.  As much, if not more, about process than outcome.  The spirit of American crim pro.  And the essence of justice.  Even for, especially for, the least, last, lost, left out, and looked over. 

And that’s the point.

How a society treats its outcasts, the least among it, says perhaps the most about the type of society it is, and yearns to become.

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.

 

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?

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?

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.

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?

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.

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.

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.

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Universally recognized as one of the most “marketable” athletes in the world, Osaka, who, in 2020, had earned the distinction of being the highest-earning female athlete of all time by annual income, announced that she has been struggling with depression. She decried "people [with] no regard for athletes' mental health,” noting that "We're often sat there and asked questions that we've been asked multiple times before or asked questions that bring doubt into our minds and I'm just not going to subject myself to people that doubt me."

As many commentators have pointed out, Osaka’s exodus has thrust into the spotlight issues of mental health and self-care among everyone in workplaces from sports arenas to boardrooms to factory floors. Words of support and encouragement have poured in for Osaka from athletes and celebrities ranging from Serena Williams, to  Stephen Curry.

            Because the tournament at issue, at Roland-Garros, is not held in the United States, US law does not apply. Moreover, we know nothing about Osaka’s mental or emotional state, other than what she has shared. We do not know whether she would ever claim or be capable of being shown to be disabled so as to entitle her to protection under any law. But many now wonder what would happen if someone who did claim that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health. Under the ADA, an individual deemed disabled within the meaning of the Act (via a physical or mental disability) may not be discriminated against because of their disability and is entitled to an affirmative reasonable accommodation that may be needed.

            This hypothetical case immediately reminds me of a 2001 Supreme Court case that I analyzed over a decade ago, when discussing the varying amounts of deference that courts give defendants in ADA cases: PGA Tour, Inc. v. Martin. In that case, the PGA refused to allow Casey Martin,  a pro golfer stricken with Klippel-Trenaunay-Weber Syndrome, a degenerative condition that impeded his ability to walk, to use a golf cart to get around during PGA Tour competition, as he had been permitted to do in other, lower-level tournaments. The Supreme Court held, over the PGA’s strident protestations, that walking the course was not an essential part of the game of golf and that no real disadvantage would be imposed upon Martin’s opponents due to the accommodation of a golf cart to transport him from hole to hole.

In a previous article, I noted that the case was somewhat remarkable, in that the PGA was charged with the administration and regulation of professional golf, a sport whose rules, by all accounts, are inherently arbitrary. Unlike a more objectifiable “essence” (such as of a pizza business to sell pizza) or “essential function” (such as of a fire department to fight fires, perform rescues, etc.), the rules/requirements of any sport are typically precisely what the regulatory body overseeing the sport and administering its competitions says they are. As dissenting Justice Scalia famously quipped, if the majority could answer the question “What is golf,” in a way that put it at variance with the PGA itself, then “One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)”

            In Martin, as would likely happen here, the plaintiff, though a professional athlete, was not considered an “employee” of the PGA  such that he could pursue a claim under Title I of the ADA; rather, he needed to use Title III, which covers public accommodations. Under title III, a plaintiff is entitled to a reasonable accommodation so long as it does not threaten safety or effectuate a fundamental alteration of the defendant entity or that which it purveys. The Supreme Court in Martin held that despite the PGA’s contention that as the arbiter of professional golf and its rules it could proclaim that walking was an essential element of the game, it would not effect a fundamental alteration of the PGA Tour’s highest-level tournaments if Martin were afforded the use of a golf cart.

What does this tell us about how our hypothetical might play out? There are several key points to keep in mind. In the first place, Martin is considered good authority for the proposition that even in the case of a sport or sports tournament whose purpose is leisure and recreation, the regulatory body of the sport is not entitled to the final word or even to high levels of deference when it comes to defining the rules of the sport or the essence of the defendant entity.

So where does that leave us? Assuming that our hypothetical plaintiff could establish that she is disabled within the meaning of the ADA and the issue was her entitlement to refuse  to comply with the tournament’s requirement that she make herself available to the press after competing, the issue would boil down to whether an exemption from the press conferences would be a reasonable accommodation or whether it would constitute a fundamental alteration of the tournament. Unlike in Martin, this requested accommodation could probably not, at first blush, be argued to confer a physical, athletic, competitive advantage (though the Martin Court did give this issue thorough consideration). It is an interesting question as to whether a defendant might try to argue that the press conferences are so draining and deleterious to an athlete’s psyche that avoiding them might amount to an advantage, or whether that might not be a thing that would be auspicious for the USTA to put out there.

However, a defendant that made participation contingent upon press availability would need to argue that the ability to face the press and answer even aggressive questioning is essential to making the tournament what it is. Selling tickets, procuring ratings, and keeping the tournament relevant and current is dependent upon permitting the public a window into the athletes’ reflections upon and reactions to their performances. Inasmuch as probing into these innermost thoughts may cause stress, embarrassment, or perseveration, the state of social media and the public’s increasingly handy access to and hunger for sports heroes’ and other celebrities’ thoughts and feelings necessitates the press conferences. They are as much a part of the essence of the tournament as the competition itself. Would a court buy this? Might a court be persuaded that in the age of social media and instantaneous access to celebrated public figures, fan access to athletes’ personas, including their most agony-filled defeats and regrets, is now necessary in a way that maybe it didn’t even used to be? To the extent that a reasonable accommodation could be argued to be an athlete’s furnishing this access through written statements or some other less immediate means of communication, could a court nonetheless be persuaded by a defendant that the buffer of time and space to prepare responses and the filter of the keyboard failed to yield sufficiently direct, raw access?

This is not to say that the defendant would necessarily win this case. Our hypothetical plaintiff might be, like Osaka, a personally and professionally compelling figure who is pushing back on not only the rules of this tournament, but on the idea of the public’s entitlement to this kind of access—especially when it causes and inflames harm and/or is deemed unnecessary. A court adjudicating the dispute would have wide latitude in determining the questions of the “essence” of the event and of the “fundamental alteration” or transformation that the requested accommodation could cause. Any number of considerations—including increasing societal recognition of the sanctity of the mental health of athletes (and all people trying to earn a living) at work, the evolving nature of what it means to be a public figure, the public’s insatiable hunger for access to athletes’ post-game thoughts and opinions, or even individual judges’ conceptions of “What is this tournament—to me”—could factor into the final determinations.

A case like our hypothetical would thrust the issue of workplace bullying into the spotlight. Only Puerto Rico and no U.S. state has passed comprehensive legislation that makes status-blind workplace bullying unlawful. This failure of legislatures to act has occurred despite high-profile stories about how celebrities and athletes have been driven from their workplaces and even from their careers by workplace bullying. Years ago, I pointed to the compelling case of Jonathan Martin, a talented, successful Stanford graduate who was driven from his career in professional football when Richie Incognito and other Miami Dolphins teammates tormented him. This torment took the form of both abhorrent race-based abuse as well as more generic bullying. Many scholars bemoaned the failure of the law and law makers to take not only bullying but the mental health of those at work seriously enough.  It should not be lost on anyone that Martin and Osaka are Black, and many of us have pointed to the impact and compounding effect of systemic racism and sexism on so-called “status-neutral” bullying.” Not only does “neutral bullying” often accompany race-based abuse as with Jonathan Martin, even when it doesn’t, it still befalls and, some studies say, affects, women and minorities more than it does others.

Last, but far from least, a comparison of the hypothetical case of an athlete who sought to avoid a contentious press conference for the sake of her mental health with the Martin case should also draw a comparison between the way we address and compel accommodation of physical disabilities and mental/emotional disabilities at work or in places of public accommodation. Michael Perlin has written extensively about sanism, "an irrational prejudice of the same quality and character of other prevailing prejudices such as racism, sexism, heterosexism and ethnic bigotry that have been reflected both in our legal system and in the ways that lawyers represent clients.” Would a case brought by someone with a disability that was not physical lay bare the differences in the ways in which the law and society regard and address mental disabilities?

I am working on an article that will seek to address these and other issues raised by this very compelling news story. I am interested in hearing others’ thoughts.

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.

When Is It Too Soon to Call a Catastrophe a “Genocide”?

The following post is by my FIU colleague Hannibal Travis.

At an interesting event held by the United Nations General Assembly, with the UN Secretary-General Antonio Guterres and delegates from many nations in attendance, the question of the “g-word” came up.  On the topic of “Multilateralism and Diplomacy for Peace,” the General Assembly president, Volkan Bozkir, responded to a question from an Armenian diplomat regarding denial and justification of past genocides being a “test of multilateralism” and the principles of the United Nations regarding the peaceful resolution of disputes.  Mr. Bozkir stated that in “order to describe an incident as genocide, a competent international tribunal must make a decision to that effect,” and that in April of this year, a spokesperson for Mr. Guterres had “reiterated that genocide needs to be determined by an appropriate judicial body, as far as the UN is concerned.”  By that standard, it may be too soon for the United Nations to label as “genocide” the Armenian catastrophe, or the great anti-Armenian crime (Meds Yeghern).   

For Michael Berenbaum, a project director for the emerging United States Holocaust Memorial Museum and the first director of its Research Institute, the U.S. House and Senate resolutions of 2019 and presidential statement of 2021 recognizing the Armenian genocide did not come too soon.  The very word “genocide,” he argues, was used and invented by Raphael Lemkin “to speak of the Armenian genocide.”  

Advocates of Armenian genocide recognition point out that the UN does not often wait for an international tribunal to make a final decision on a genocide before the UN opines on whether one has occurred.  In 1985, a study prepared at the request of the UN Commission on Human Rights, for example, named the “massacre of the Armenians in 1915-1916” as a “genocide.”  At least 40 U.S. states and many national parliaments followed suit, as did the European Parliament in 2006 in a resolution that also referred to Assyrian and Greek victims.  (Incidentally, Lemkin wrote in 1948 not so much of an “Armenian genocide” as of a broader phenomenon – “the destruction of the Christians under the Ottoman Empire” – in promoting a genocide treaty; similarly, the House of Representatives in 2019 referred to a genocide against Armenians and “Greeks, Assyrians, Chaldeans, Syriacs, Arameans, Maronites, and other Christians,” whereas the presidential commemorative statement of 2021 referred only to Armenians even though it mentioned other Christian orphans and refugees as being affected by the same events.) 

In 1992, the General Assembly called the tragedy of ethnic cleansing in Bosnia and Herzegovina a “form of genocide,” after noting that human rights violations and mass refugee flight had happened.  The resolution also acknowledged that the Security Council had not even begun considering creating an international war crimes tribunal with jurisdiction over acts committed in Bosnia and Herzegovina.  The UN’s own records also designated the extermination of the Jews in Germany and occupied Europe and North Africa as a “genocide” before a genocide treaty had been signed, let alone enforced in court.

Waiting for a tribunal to declare a genocide could involve substantial delays in the effort to salvage the victims’ lives by such means as providing a safe haven, an independent country, an arms embargo, a UN or regional force to restore order, housing and land restitution, psychosocial counseling, or medical treatment.  It can take about three years for the memorials to be filed and preliminary objections to be heard in an interstate case involving state responsibility for genocide, such as Bosnia and Herzegovina v. Serbia and Montenegro.  It can take even longer than that, or more than a decade, for significant movement to occur in a genocide prosecution at the International Court, such as the “Darfur situation.”  The first chance to begin to assess the guilt of a suspect in the Darfur genocide at the ICC came in March of 2021, involving events that took place starting in 2004.  The Genocide Convention states that genocide has occurred throughout history and that all parties to the convention have a duty to punish the crime; while it states that all trials should be before a competent domestic or international tribunal, it does not state that all punishments must be meted out to natural persons after a trial.

There remain very few survivors of the events of 1914-1918 in the Ottoman Empire, or even of the events of 1919-1925 which followed and involved further massacres and denials of a homeland.  In that respect, many of the considerations which might persuade a diplomat to seek genocide recognition in order to advance an ongoing agenda of civilian protection carry less weight in the Ottoman case.  Scholars who write on the Armenian genocide therefore emphasize the ongoing character of the events, including reduced populations, lower birth rates as a result of physical violence and impoverishment, impacts of trauma on lifespans, and compromised cultural and religious traditions due to “dispersion.”

Other reasons not to recognize a genocide with resolutions or statements such as those that the United States issues include the following: politicians should not be the arbiters of what happened in history, recognition of important human milestones both for good and evil should be balanced rather than selective, contemporary political and strategic relationships are more important than proclamations about the past, and congressional or White House procedures may be twisted towards biased ends.  While each of these reasons has some validity, politicians make a variety of factual and historical findings and commemorations in the course of shaping legislative or executive policy and proclamations.  There are more urgent matters to investigate from the standpoint of the present moment than how to conceptualize the Armenian catastrophe as a matter of U.S. policy, but there are also other far less significant statements that are made in the annals of Congress, in the halls of the White House, or on a U.S. website.  The selectivity of U.S. proclamations is also obvious, especially given the executive branch’s policy of opposing judicial inquiry into allegations of internationally wrongful acts by the United States or its allies (whether in the International Court of Justice, the federal courts - update, or in foreign courts).  Perhaps rather than giving up on commemorating events with legal concepts that capture some of their gravity, politicians could strive to be even-handed across nations and situations, including their own nation and situation.  Finally, while the strategic situation of the United States is beyond the scope of this post, it is not as if the period during which the presidency and the Congress denied the Armenian genocide (beginning in the late 1980s or thereabouts) was uniformly characterized by greater security and reduced Middle East tensions.  Nor was Turkey’s role always a benign one during this period.

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."

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.

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.

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?

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.

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.

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.

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.

Universality in Tandon v. Newsom

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

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

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

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

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

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

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

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

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

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

Speech is not money (Update)

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

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

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

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

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

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

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

Return of Kitty Genovese?

The video-recorded attack on an (unidentified) elderly Asian-American woman in New York is striking two themes: the increase in bias-motivated violence against Asian-Americans and the apathy of the men inside the building who watched the attack on the sidewalk, then closed the door when the attack was over and the woman was lying on the ground. The staff members have been suspended pending an investigation in cooperation with the SEIU; the union says that their current information is that the workers called for help and urged people not to rush to judgment. Meanwhile, video and stills of the attacker have been released and calls are out for information about the identity of the assailant.

The story brings to mind Kitty Genovese, whose 1964 murder wrapped into an inaccurate narrative of bystander apathy that remains 57 years later, even as recent accounts have shown that narrative to be false. That this new (apparent?) apathy was caught on video makes the narrative more powerful and potentially stickier. It is different in two respects. First, it does not allow a complete-apathy narrative, as witnesses say someone on the street (not captured on video) chased the assailant, who pulled a knife before escaping. Second, the apathy is bound up with the anti-Asian narrative. So this is not public apathy, but racist apathy directed at a vulnerable population.

Qualified immunity, inconsistency, and level of generality

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

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

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

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

Zombie revivals

Michael Dorf writes about a new Arkansas law that bans all abortions except to save the life of the woman in the case of a medical emergency. Dorf wonders why Arkansas (or any other state) does this rather than attempting to enforce an existing law. He argues it is partly political--current legislators and the current governor want the political trophy of such a law, as opposed to give the attorney general the glory of new enforcement. There also is the problem that Arkansas or another state may be under an injunction not to enforce the existing laws, so the new law is necessary to create a new enforcement opportunity. Alternatively, the AG would have to ask the district court to lift the injunction, which may be difficult when done in anticipation of SCOTUS overruling precedent.

Some good thoughts here that I want to incorporate into my Zombie Laws paper.

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Cascading Fed Courts issues

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

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

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

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

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

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

Nominal damages, past injury, and a morass to come

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

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

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

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

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

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

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

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

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

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Campus speech (Updated)

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

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

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

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

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

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

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

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

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Citizens United meets cancel culture

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

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

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

Which Republican party will emerge? Early returns not encouraging

In two posts, I discussed suggestions that the GOP was going to come apart into two or three groups. The question is which group will retain the party's power within government. Would the autocrats be cast out or abandoned, leaving a slightly smaller but rational center-right party committed to the system? Would the autocrats be left alone in the husk of a party (a la the pro-slavery Whigs) while the pro-democracy group formed a new entity? Or would the autocrats retain control aided by the pragmatic fence-sitters who want to retain power, leaving the tiny group of sort-of moderates (Murkowski) and those committed to the system (Romney) nowhere to go but to stay and shout at the rain.

Early returns are not encouraging. Trumpist Ronna McDaniel was reelected, unopposed, as RNC Chair. A super-majority of House Republicans voted to sustain challenges in Arizona and Pennsylvania and would have sustained challenges in Georgia, Michigan, and Nevada had any Senators gone along. Mitch McConnell will not bring the Senate back before January 19 and an evenly divided Senate may decide there is no jurisdiction over an ex-President. Lindsay Graham says it is time to "heal and start over" and not hold anyone accountable for a mob storming the Capitol (he was talking about impeaching Trump but I assume he would say the same about efforts to censure or expel Hawley, Cruz, et al).

Even after Republican playacting at overthrowing the government turned real, violent, and deadly, most members of the Republican congressional caucus and others "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know."

Update: Steve Scalise says the same thing about impeachment interfering with whatever will unite and bring our country together, while Jim Jordan speaks of "united and healing." Even Derrick Evans, the West Virginia legislator who was arrested for being part of the mob, wants  to help the healing process and bring the nation together. So everyone seems to have received the talking points memo. And the talking point is that unity, healing, and bringing the country together are more important than accountability and repercussion for past misdeeds--at least when Republicans engage in those misdeeds.

On "cancel culture"

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

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

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

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

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

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.