PrawfsBlawg

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Random reactions to some items in the news

My response to some random news items.

• Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

• Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

More confusion on legislative immunity

I wrote a few weeks ago about a Ninth Circuit case allowing a state legislator to pursue a First Amendment retaliation claim against legislative leaders who restricted his access to the capitol, wondering how this was not governed by legislative immunity. Further confusing matters, the Sixth Circuit holds that legislative immunity bars a First Amendment retaliation claim against the heads of a party caucus for expelling a member from the caucus (and denying her party resources). Unless there is a meaningful distinction in the legislative nature of "you no longer get to hang out with us in the legislative process" and "you must notify us before enter the chamber," both decisions cannot be correct.

Who assigned this and why? (Update)

Who assigned Dobbs to Alito--the Chief or Thomas?

Assume the following at conference: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett want to overrule Roe, declare the MS law valid, and enter judgment for the state; the Chief wants to declare the MS law valid as not imposing an undue burden  and enter judgment for the state. Who is the senior-most Justice in the majority? What is the "majority" when in Conference and before any opinions have been written--is it a majority for the judgment ("the law is constitutionally valid, plaintiffs lose, state wins") or is it majority for a rationale or an answer to a QP (Roe/Casey are overruled)? If the former, the Chief keeps the assignment; if the latter, Thomas gets the assignment.

I raised this question (without a satisfactory answer) over the now-meaningless June Medical, where four Justices (Breyer for Ginsburg, Sotomayor, and Kagan) declared the law invalid by balancing burdens and benefits under Casey and the Chief agreed the law was invalid but on the logic of WWH and considering only the burdens; did the Chief assign or did Ginsburg? Does the assignment work differently when there is a majority for a result but not for a rationale, as in June, as opposed to where there is a majority for a rationale plus extra votes for the result?

My best guess is Thomas assigned it. If so, I am impressed (and a bit curious) that he chose not to keep it for himself. Casey was decided during Thomas's first Term, meaning he has been waiting his entire time on the Court for this opportunity.

If Roberts assigned it, the choice of Alito creates all sorts of Kremlinology. If Roberts  (presumably) wanted to make the least noise, he would not have assigned it to Alito, knowing the likely tenor of the opinion. Or he assigned it to Alito intentionally, knowing he might draft an opinion (what my colleague called a "nuclear bomb overruling") that might scare off Kavanaugh or Barrett. In which case the "conservative leaker" theory makes sense as a counterpunch to that. Anyway, I doubt anyone thinks this way, which is why I believe the relevant majority was to overrule Roe and Thomas gave the opinion to Alito.

Update: This question was raised on the Con Law Prof listserv. No one knew for sure, although one former clerk says his understanding is that the majority is for the bottom-line disposition. This make some sense, the person argued, because some justices only have identified a conclusion but not a reason at conference. Alternatively, many cases may have a bottom-line majority but competing reasons, none garnering the initial support of any 5; the only way to identify a seniormost-in-the-majority is to go by majority for the judgment, meaning the Chief assigned Dobbs. It also would follow that the Chief, rather than Ginsburg, gave Breyer June Medical.

Of leaks and legitimacy

I am not as outraged by the leak as Paul is, although I agree it suggests something about the elevation of individual personalities over the institution. I want to weigh in on a couple points. (Update: Mark Graber argues that leaks, especially from the Court to the executive but also to the press, were common during the 19th century).

• Regardless of the source--Justice, clerk, court personnel--there are plausible arguments for the source coming from either side of the divide over reproductive freedom. A critic of the decision might leak hoping that public outrage might sway someone off the Alito opinion or, seeing that as a lost cause, to get an early start on generating political activism to prompt Senate action (a law codifying the right to reproductive freedom passed the House but is stuck behind the Senate filibuster*) or to get Democrats to the polls. A supporter of the decision might hope publicity surrounding the prospective opinion would shore-up Alito's majority; soften the public outrage when the opinion issues (closer to the election), so that the anger has dissipated by November; and distract from the story of the Court eliminating reproductive freedom (and perhaps other rights, more on that below) by offering the story of the leak, failed processes, and the Court-as-institution as a competing narrative. As a couple people have put it, the leak is a story, but not the story; the source might have hoped to make it the story, especially in the right-wing noise machine (which will suggest the source is from the other side). One person on the ConLawProf Listserv suggested Alito might be the source--knowing he will be forced to soften the language in the published opinion, he gets his raw thoughts into the world and becomes a Fed Soc rock star.

[*] Putting aside whether such a law is valid under the Commerce Clause or § 5, a question that the same five-Justice majority would likely answer in the negative two years from now.

• I do not understand the insistence that the decision is "illegitimate." I think it is wrong, uses (typically) bad history, and written with the usual Alito arrogance and causticity that grates on me (even when I agree with him). But it does not say anything that Roe/Casey critics have not been saying for years; it reads as the opinion overruling Roe that we have feared for years, at least as written by Alito or Scalia. But that should not make it "illegitimate" any more than Roe/Casey are illegtimate, as Alito suggests throughout the opinion.

What makes it illegitimate as a judicial decision--as opposed to wrong as a matter of substantive constitutional law--for people who do not subscribe to Eric Segall's view that the entire SCOTUS enterprise is illegitimate?

    1) It overrules precedent. No, because the Court has overruled or changed precedent in the past. It has standards for doing so. And disagreeing with how Alito applies those principles is a critique on the merits.

    2) It eliminates an existing constitutional right. That has never been part of the stare decisis or constitutional analysis. While perhaps a worthwhile constitutional principle (a judicial presumption of liberty, if you will), that again goes to correctness on the merits rather than structural legitimacy.

    3) Everything that went into how the five-Justice majority was formed--GWB and Trump losing the popular vote (such that 4/5 of the majority was appointed by a President who, at least initially, was a minority President); McConnell holding Gorsuch's seat open for more than a year; Kavanaugh perhaps perjuring himself; McConnell ramming the Barrett nomination through, Susan Collins Susan Collinsing, etc. But it seems to me that proves to much, rendering "illegitimate" any decision from this Court for the foreseeable future. And many might agree with that conclusion. But we cannot ignore the role of politics, a less "clean" process than the judicial is supposed to be, in the appointment process. Other Presidents and Congresses have gained or sought to gain political advantage through the Court. What makes this uniquely illegitimate.

I am not trying to downplay how bad this opinion is. I am concerned that "illegitimacy" is the new "judicial activism"--an illegitimate decision is any decision I disagree with written by a justice I do not like. That is not helpful to the discourse or to the functioning of any institution. Or it is the new obscenity--I know an illegitimate or judicial activist opinion when I see it (usually because I disagree with it).

• I cannot tell how much mischief the opinion can do in the future--whether it also takes out marriage equality, freedom of intimate association, contraception. Alito tries in several places to distinguish those rights as not involving potential life, although query whether that holds true for contraception, given some religious views about what constitutes abortion and the misunderstanding of how some contraception works. The rigid historical approach to substantive due process does not bode well for rights and interests that have developed in a modern, more open, more technologically advanced, and more accepting society.

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Legal Misunderstanding March Madness

Via Mike Masnick at TechDirt. Here is the Spreadsheet for downloading.

Have fun. And watch for Fire in a Theater, underseeded at a 6.

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Quick thoughts on the Jackson nomination (Update)

1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.

2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.

Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.

3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.

4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.

Breyer to retire

Story here. I presume Ketanji Jackson will be the nominee, which was part of the point of her elevation to the D.C. Circuit. Any chance Sinema or Manchin will throw a fit on this one?

Henry Ford apologized?

I had no idea until a link in this article on the long history of antisemitic conspiracy theories took me to Ford's 1927 written public apology following negotiations with Louis Marshall, president of the American Jewish Committee. Ford said he did not know about the content in the Dearborn Independent or The International Jew because he turned management to others; was "shocked" and "mortified" by their content; retracted the statements; withdrew the publications from circulation (although they were, and remain, out there); and asked for forgiveness from the Jewish community for unintentional harm. Marshall responded with a promise to further the request for forgiveness "so far as my influence" can reach, because "there flows in my veins the blood of ancestors who were inured to suffering and nevertheless remained steadfast in their trust in God." Of course, the apology did not prevent Ford from receiving a medal from Nazi Germany.

The apology arose as an effort to resolve a defamation lawsuit against Ford and the Independent by a Jewish lawyer named Aaron Sapiro that exposed Ford's antisemitism. Although the alleged defamatory statements had nothing to do with Sapiro's being Jewish, defense counsel struck two Jewish jurors, plaintiff counsel struck an ex-Klansman, and the judge asked during voir dire whether "any of you, by blood or by marriage, connected with the Jewish race." The case ended in a mistrial when Ford accused Sapiro of bribing a juror and a juror gave a newspaper interview. Ford reached his deal with Marshall to avoid a new trial, wanting to avoid continued bad publicity.

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

• Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

• Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

2021 Chief Justice Year-End Report

This ball still drops, even during a pandemic.

This year's theme is the Judicial Conference (which marks its centennial in the coming year) and the importance of the judiciary's "institutional independence," as the "power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government." The opening historical ditty is about Taft and the origins and development of the Conference. Roberts then analyzes three topics flagged by Congress and the press as requiring the Conference's attention: Recusal obligations (in light of the recent WSJ report), judicial misconduct (implementing the Working Group's recommendations), and venue in patent cases.

I have an article coming in early 2022 in Stetson Law Review on the history of the Year-End Reports and how the chiefs have used them to address and push for changes in civil procedure and civil litigation.

What does it mean to have gone to law school?

New York State Senator Brad Hoylman (D) announced a bill defining as a public nuisance (subject to public and private litigation) the promotion of "harmful, false, or unlawful" speech. It targets social-media sites whose algorithms promote or prioritize such "hateful or violent" content, treating it as an affirmative act (compared with passive hosting of third-party speech) not subject to § 230 protection. The obviously problematic piece is making actionable "a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public," a rule that would 1) empower the government to determine medical truth and 2) lacks the required imminence.

First Amendment scholars, lawyers, and commenters jumped to identify the obvious problems with the law under existing precedent and the likelihood its enforcement would be enjoined shortly after it takes effect. They also have pointed out that Hoylman graduated from Harvard Law School, a shot at HLS ("what the hell are they teaching there?") or at Hoylman ("did he not take a First Amendment class or did he just not pay attention?") or at both.

But consider three other possibilities.

    1) One must know the law to ignore it. HLS did a good job of teaching the First Amendment and Hoylman learned it well. But in his new position he does not care, choosing to score political points rather than adhere to the constitutional law that he was taught and knows well.

    2) One must know the law to find ways around it to serve (what one believes are) greater societal goals. HLS did a good job of teaching the First Amendment and Hoylman learned it well. And Hoylman is using that knowledge to find ways around that law in pursuit of a higher purpose or social goal. Whether one shares that goal tells us nothing about how well the law is taught and learned at HLS.

    3) Stop being judicial supremacist. HLS taught and Hoylman learned the First Amendment as interpreted by the courts. As a legislator, he is not bound by judicial precedent or that judicial interpretation and can proceed on his own understanding in drafting, introducing, and pushing legislation. His position may lose in court, but he has the departmentalist authority and discretion to pursue his competing vision within the legislative process. On this last point, perhaps we test the "HLS taught and Hoylman learned the First Amendment" hypothesis by whether Hoylman knows that his position will lose and chooses to pursue it anyway (a defensible position in a judicial-departmentalist world) or whether he believes what he proposes is consistent with prevailing judicial precedent.

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

What we mean by "let the states decide"

Neil Buchanan is taking bets on how quickly after Dobbs overrules Roe/Casey congressional Republicans propose a federal prohibition on abortion. Buchanan sets the over/under at two days after the start of the next Congress with Republican majorities. I will take the under--a bill will be introduced in this Congress the day after Dobbs, although the first bill with a chance will be when Buchanan suggests.

But is it fair to label this Republican hypocrisy? Yes, the anti-choice mantra has been "let the states decide," a phrase repeated during the Dobbs argument. But the mantra has not been about states v. federal government; it has been about popular/democratic branches (at whatever level) against the court. The objection to Roe and Casey is that it removed the decision from political debate and lawmaking; it did not mean to identify the level of government at which that debate and lawmaking will take place. What they mean by "let the states decide" is "let the majority (as reflected in representation) decide."

I believe a potential ban is a bad idea. I do not necessarily see it as hypocritical.

More on academic freedom at UF (Updated)

Updated: The university backed down, at least for the moment. The president convened a task force (including Clay Calvert, an excellent First Amendment scholar who teaches in the journalism school, and law dean Laura Rosenbury) to develop policies for "how UF should respond when employees request approval to serve as expert witnesses in litigation in which their employer, the state of Florida, is a party." That framing is problematic, still conflating the university with the state of Florida, but we have to see. The president also ordered the university conflict's office to reverse recent decisions and allow faculty to testify, for compensation, in cases to which Florida is an adverse party.

The University of Florida Chapter of United Faculty of Florida issued a list of demands. After the jump, I summarize and comment.

1) Allow the three faculty members to provide paid expert testimony in the voting-rights litigation, as well as allowing other faculty to do the same in other cases. They also want the university to issue a formal apology. Makes sense. This is what started this whole thing, which has brought to light other academic-freedom concerns at the university, such as state laws requiring schools to conduct "intellectual environment" surveys and limiting what faculty can speak to students about.

2) Affirm the right of faculty to "conscience, academic freedom, free speech rights, and expertise in an expert witness context, regardless of whether they receive payment for their expertise." Obviously.

3) Affirm its support for voting rights and commit to opposing ongoing efforts to suppress voting rights in the state of Florida. This is stupid, over-grasping, and unnecessary. There are good arguments (from scholars across the political spectrum) that academic institutions should not take institutional positions on public issues, no matter how obvious the issues. This demand says "it is not enough that we be able to express our preferred position, you also must tell us that we are right in our position." It also plays into the narrative of liberal academics controlling the university and silencing those who oppose their messages by insisting that their views be the institution's views.

4) Formally declare that the University's mission to serve the public good is independent of the transitory political interests of state officeholders. Instead, UF should uphold its mission statement as the prime directive for all University activities. Good.

5) Donors should withhold donations unless UF complies with the four main demands, including explaining why they are withholding. Interesting, but unlikely to do much. One of the faculty members at the press conference announcing these demands said he had donated to the school in the past and would stop doing so. But I doubt that the donors the university cares about--those who build buildings and endow centers and chairs--would follow suit.

6) Officials at other schools should tank UF in their US News and other assessments, because of this, as well as its response to COVID, its "poor commitment to environmental sustainability," and broader attacks on employees' speech, academic freedom, and labor rights. This is trying to hit UF where it hurts. The university made a big deal about becoming the #5 public university in the 2021 US News (trailing UCLA, Berkeley, Michigan, and Virginia and tied with UNC and UC-Santa Barbara)--there is a photo circulating of DeSantis with university officials, holding a # 5 Gators jersey. Again, though, why drag an unrelated political issue such as the environment into this?

7) Professional associations should call out UF.

8) Accrediting agencies should investigate, since failing to protect academic freedom undermines its ability to provide a world-class education.

9) Artists, scholars, and intellectuals who are invited to perform at the University of Florida should decline these invitations until the University complies with our academic freedom demands. When declining an invitation to appear at the University, invitees should clearly specify why they are declining the invitation and, if they are active on social media, should use the hashtag #NotAtUF.

I asked Steve Lubet (Northwestern) for his thoughts, as he criticizes calls for academic boycotts. He writes:

Academic boycotts are bad in principle because they undermine the free exchange of ideas. I understand the impulse here, which is to exert maximum pressure on the administration, but it would be performative and counter-productive. Desantis and his acolytes don’t care much about artists or visiting scholars appearing at UF, so only the students and faculty will be hurt. They should try demanding that other universities drop UF from their sports schedules, which might actually have an impact.

I would add that it would create a political imbalance in the exchange of idea, because conservative speakers will be happy to speak at UF, not only for the opportunity to speak but also to own the libs.

10) Call for a UF Faculty Senate resolution affirming these demands.

11) Employees should refuse to disclose outside activities and conflicts of interest via the UFOLIO system. Until the University can be trusted to use this information responsibly, it should not be trusted with this information at all. Nothing like some civil disobedience as a topper. But they might consider Tracy v. Florida Atlantic University, a different conflict between an SUS entity and faculty speech. Tracy, a professor of communications and media studies, ran a blog that questioned Sandy Hook; the university asked him to disclose the blog as an outside activity, Tracy refused, and the university fired him for insubordination. The Eleventh Circuit affirmed summary judgment in favor of the university, concluding that the disclosure policy was not constitutionally invalid and thus firing him was not inappropriate. That one does not trust the university to use information responsibility, divorced from any apparent constitutional violation in the disclosure rules, does not excuse the obligation to comply with the disclosure obligations. I suppose if enough people stop complying the university cannot fire everyone for non-compliance, so maybe it works in the short term.

I presume the university will back down on this; it does not want this to remain a national story. I remain focused on how this trickles down to my school.

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

Walen on Ahmaud Arbery

The following post is by Alec Walen (Rutgers).

The killing of Ahmaud Arbery was a horrific tragedy. It is natural to want justice for him. And perhaps the evidence will show, beyond a reasonable doubt, that the three men who chased him down and eventually killed him had no legal right to do what they did. But from what I can see, it seems plausible that they did have a legal right to do what they did. If so, then convicting them of murder, assault, and kidnapping—the three basic charges they face in an 8-count indictment—would turn them into sacrificial lambs, punished to make up for our collective guilt as a racist society. That might make some people feel better, but it would not do justice.

The killing of Ahmaud Arbery was a horrific tragedy. It is natural to want justice for him. And perhaps the evidence will show, beyond a reasonable doubt, that the three men who chased him down and eventually killed him had no legal right to do what they did. But from what I can see, it seems plausible that they did have a legal right to do what they did. If so, then convicting them of murder, assault, and kidnapping—the three basic charges they face in an 8-count indictment—would turn them into sacrificial lambs, punished to make up for our collective guilt as a racist society. That might make some people feel better, but it would not do justice.

By way of background: On Feb. 23, 2020, Mr. Arbery was jogging through the Satilla Shores neighborhood, about 2 miles from his home. As video from the scene indicates, he took a detour to peek into a house under construction, as he had done several times before. The New York Times reports that:

Gregory McMichael, a former investigator in the local prosecutor’s office, saw Mr. Arbery in the house and thought he looked like a man suspected of several break-ins in the area. He called to Travis, his son, a Navy veteran and boat-tour operator. The elder Mr. McMichael grabbed a handgun; his son, a shotgun. The two jumped into a truck and gave chase and were eventually joined by Mr. Bryan, who drove his own truck. Mr. Arbery, a former high school football player, tried to run from them.

Eventually, the pursuers had Mr. Arbery caught between them. Travis McMichael got out of his truck and stood near its door with his shotgun. Mr. Arbery ran around the truck and then at him. They wrestled over the shotgun and it went off three times, killing Mr. Arbery.

It’s not hard to see how this was fundamentally a tragic, racially tinged, misunderstanding. Think of it, first, from Mr. Arbery’s point of view. He went out for a jog and was curious to see how things were coming in this house under construction. I have been that sort of trespasser before, peeking into houses under construction. It’s fascinating to see how they come together. I never stay long, I never touch anything; I’m just looking. It seems this was the case for Mr. Arbery too.

After spending about four minutes in the house, Mr. Arbery left and continued jogging on his way. But a few minutes later he saw that he was being followed by some white guys in a pickup truck, and by another white guy in a car. Now we don’t know what the McMichaels or Mr. Bryan might have said to Mr. Arbery, but it’s easy to imagine that he was afraid that they were aiming to harm him. 

He did what anyone might do: he tried to escape danger. He changed directions and then changed directions again, trying to escape pursuit. Finally, finding himself between the two vehicles, he saw the driver of the truck get out and presumably he saw that he was armed with a shotgun. He heard the word “STOP” but presumably—and we’ll never know—it occurred to him that the best chance he had to avoid being shot by these lunatics was to try to disarm the guy with the shotgun. So, he ran towards him to try to wrestle it away. But he failed to wrest the gun free, got shot in the chest, and died.

Now view the same situation from the point of view of the McMichaels. There have been break-ins in the area, and they see this Black guy emerge from a house where he was trespassing, and he looks like the guy suspected of burglaries in the area. They called the police. But they did more. They knew the law—Gregory was an investigator and had worked in the prosecutor’s office. They knew that the law allows them to make a citizen’s arrest and so they proceeded to do that, to ensure that this trespasser and suspected burglar would not get away before the police came.

Here’s exactly what the law said (it has since been repealed): “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”

The McMichaels presumably thought that they had immediate knowledge that this Black guy was trespassing. It’s a misdemeanor in Georgia to enter “upon the land or premises of another person … for an unlawful purpose.” They can’t know his purpose, but what lawful purpose could he have had? Moreover, if he is a burglar, then maybe he was engaged in more than trespassing; maybe entered the property with the intent to take something. Burglary is a felony and he was fleeing. They only needed “reasonable and probable grounds of suspicion”—in other words, they only needed to reasonably suspect—that he entered the building without authority and “with the intent to commit a felony or theft therein” to arrest him.

It’s not that they did nothing wrong. But to appreciate what they did wrong, and how it is significant, you need to take seriously the idea that citizens in Georgia were supposed to act, essentially, like the police in making arrests. Imagine, then, that you are a police officer and you are chasing a fleeing felon. You see a man running from a house and you have reasonable suspicion that he was not only engaged in criminal trespass, but that he was engaged in a burglary. You give chase. You see that he’s faster than you and so you pull your gun and yell STOP.

What you’ve done is exercise your “constructive authority” as a police officer. You’ve also done so wrongly. You know that under Supreme Court precedent (Tennessee vs. Garner) you have no right to shoot a fleeing felon unless you have probable cause to believe that he poses a significant threat of death or serious injury to yourself or others. You have no probable cause to believe that, but you think you’re still operating within the law because you pulled your gun to intimidate, not to shoot. In New Jersey—where I teach and where retired Police Captain Brian Donnelly, with whom I consulted, also teaches—that sort of act runs counter to policy issued by the Attorney General. It also was stupid, because it risked escalating the conflict. And indeed, that’s what happened.

So, to continue with the case, suppose the suspect you were chasing sees your gun and turns on you and tries to disarm you. You would have a right to shoot in self-defense. It was, in a way, your fault that the situation reached that point. You never should have pulled your gun. But having made that mistake, it’s not your fault that you need to use lethal force to defend yourself. Your provocation of a conflict would not cause you to lose the right of self-defense because you had the authority to arrest him, and your misuse of your firearm to threaten does not cause you to forfeit that authority.

In Georgia, the McMichaels and Mr. Bryan can say that they likewise had the authority to arrest Mr. Arbery. Moreover, even if it was stupid to brandish a shotgun to try to intimidate Mr. Arbery and cause him to submit himself to their authority, that by itself did not cause them to forfeit the right to arrest him, and it did not cause them to lose the right to use lethal force if necessary to act in self-defense.

Both sets of actors, in other words, plausibly had perfectly understandable reasons to act as they did. If this is how the jury sees it at the end of the presentation of evidence, then they must acquit the McMichaels and Mr. Bryan of the charges brought against them.

Indeed, if this is how the prosecution sees the case, then the prosecutor has violated basic prosecutorial ethics by bringing this case. It would then be a cowardly act of putting the burden of doing the right thing on the jury because the prosecution doesn’t want to stand up to the political pressure to bring the case.

But one can ask: Is there nothing that can be done? Well, what was done was important: the citizen’s arrest law was repealed. That’s good because police and citizens have a different impact on others. If Mr. Arbery had seen police officers telling him to stop, it is likely that he would have obeyed rather than going for one of their guns. He would likely have presumed that they had the authority to arrest him and were exercising that authority rather than coming to harm him. Without an obvious sign of authority, citizens who seek to wield authority may instead seem to be merely trying to assault a fellow citizen. And in an area beset by racial mistrust, there is all the more reason to think someone would react as Mr. Arbery did in his situation.

In the longer term, we need to address our racist culture. I have no doubt that if I, a middle-aged white guy, had been seen peeking into the house, no one would have called the police on me. I might have been approached to see what I was up to if I wasn’t from that neighborhood. But I would have been approached politely. Even if I resembled someone suspected of burglary in the neighborhood, I presume the encounter would have gone more smoothly; I would have explained who I was and that I was indulging my idle curiosity, and no one would end up dead. Likewise, as a white guy, if I had been pursued by other white guys in a truck flagging me down, I’d be less likely to assume that the intent was hostile. I’d be more likely to stop, and talk, and resolve the matter peacefully. Racism creates fear and misunderstanding on both sides, and it was fear and misunderstanding that seems most likely to have led to Mr. Arbery’s death.

If this is right, the jury should acquit. That will be problematic. Many will think that racism caused the death of Mr. Arbery and then caused his killers to go free. But if they committed no crime, they may not be punished. They may not be sacrificed for our collective, racist past. We need, rather, to work, collectively, on doing the hard work of coping with tragedy, fixing bad laws that encourage citizens to pull guns on each other, and trying to get people to understand that all people, no matter their race, deserve respect.

Braid v. Stilley in federal court

This happened Tuesday, but a busy teaching day and other events make it moot, at least for now. Dr. Alan Braid, the Texas doctor who performed a prohibited abortion and announced it in the Washington Post, was named in three state-court actions. Braid filed suit against those SB8 plaintiffs in the Northern District of Illinois (where one of the three lives).

The lead claim is an interpleader action. This is a claim allowing a federal court to resolve competing claims over a res (usually a limited pool of money). Braid alleges that the $ 10,000 judgment is a limited pool and the three SB8 plaintiffs (as well as any other potential plaintiffs) make competing claims. Interpleader requires minimal diversity and allows for nationwide service of process. It then seeks declaratory judgments about the validity of SB8, complete with allegations about the plaintiffs acting under color of state law (although without citing § 1983 or identifying § 1331 as a basis for jurisdiction).

Teddy Rave (Texas) floated the interpleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res or limited fund that can be the basis for an impleader--otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a limited fund, creating a federal forum. The res in this case has not come into existence. And there is no definite limited fund because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages available under the statute (the Arkansas-tax-cheat plaintiff asked for $ 100,000), not the settled res. The three SB8 plaintiffs do not have competing claims on a single pot of money. Rather, all have state-law claims against him of at least $ 10,000 and are in a race to a judgment of some as-yet-undetermined amount, with the first entitled to recover and the others out of luck. Again, to compare a tort: If I injure three people in a car accident, I cannot use interpleader to go to federal court and say "I have $ 250,000, adjudicate which of the three injured people get it." I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.

Plus, why is this necessary? Braid's attorneys recognize and make the arguments and factual allegations for constitutional claims against SB8 plaintiffs as state actors to get a DJ about SB8's validity and an injunction stopping those state lawsuits. Why not make that the core of the argument (with jurisdiction under § 1331) and avoid the messy procedure? Yes, they have to deal with Younger. But the arguments for getting around Younger are stronger than the arguments that this is not what interpleader looks like and for Colorado River abstention. The only benefit I see from this move is being in in federal court in Illinois (because of nationwide service of process--two of the defendants have no connection to Illinois) and the Seventh Circuit. Some federal district judges in Texas are receptive to creative procedural arguments to get to the substance of SB8's invalidity, so that is a wash. My guess is Braid wants review to be in the Seventh Circuit rather than the Fifth. Which is understandable.

I continue to not understand the insistence that this is some strange case requiring strange procedures. There are ordinary mechanisms for litigating these issues, including in federal court. There are tremendous costs to these processes in this case and they are not the ones that reproductive-rights supporters (of which I am one) would prefer. But that is different than insisting, as the district court did last night, that this law eliminates judicial review and so requires extraordinary procedures.

SB8 and SCOTUS politics

SB8 is getting caught up in debates over SCOTUS politics, whether the justices are partisan hacks, and the shadow docket. This is skewing some of the discussion of the validity of the law and how providers and advocates should navigate it.

The Court was right to deny emergency relief. The WWH lawsuit was bad, given the law. No public official was a proper defendant--executive officials do not enforce the law, regulatory agencies disclaimed indirect enforcement, and you do not sue judges to stop adjudication. The individual defendant had not sued or indicate an intent to sue; the complaint alleged that he made public statements in support of the law and of people suing to stop abortion, but never that he intended to bring his own suits. So the Court could look at this law and this complaint and say the plaintiffs (the ones seeking relief) have not shown a likelihood of success on the merits because they have not found anyone suable at this time.

SB8 critics--in the media, in academia, and in the WWH dissent offer three basic arguments. The first is that the Court can enjoin SB8 itslef (and keep it from taking effect) because it is so clearly invalid and it hid intended to avoid preenforcement reveiw, so it does not matter who the defendants were. That, of course, is not how constitutional litigation works. Court enjoin enforcement, not laws. The Constitution does not dictate that states adopt any enforcement mechanism or that offensive litigation be an option in challenging a law.

The second is that the usual target (AG or governor) was unavailable, so WWH sued everyone it could think of (true), therefore the Court should have enjoined enforcement because someone in that mix must be a proper defendant. That would have given some court time to dig through and find that proper defendant. But that is not how this works. It is on the plaintiffs to identify proper defendants. And there may not have been a proper target for offensive litigation at this moment. Dickson or another individual could be subject to a federal suit, but he must make some move towards bringing an SB8 suit that he has not yet made. Sometimes (e.g., defamation) state law is enforced only through private litigation and challenged only defensively.

The third argument is that the outcome in SCOTUS would have been different if the political valence of the law had been different--that five-Justice majority would have granted relief, despite the glaring procedural problems, if California banned gun purchases and allowed private suits against gun owners. This assertion is neither provable nor disprovable. But accept it as true (it probably is). So what? Granting emergency relief in that situation would be wrong and it would expose the Justices as the results-oriented partisans they insist they are not. But the solution to that problem is not that the Court should have granted relief here --that it should have been wrong when the case carried a different political valence.

Constitutuionalizing constitutional litigation

The district court held argument Friday on DOJ's motion for a TRO (which will be treated as a preliminary injunction) in its lawsuit against Texas over SB8. Reports suggest the judge was skeptical of the law. I could see the judge granting the injunction because the irreparable harm is so great. Then we see how faithful the Fifth Circuit is to the standard for stays.

Many stories about the hearing focus on one question from Judge Pitman to Texas: If it was "confident" in the constitutional validity of SB8, why did it "go to such great lengths" to avoid direct enforcement. The question presumes that the purpose of private enforcement is and that this is constitutionally problematic. Accepting the first, point which is probably true, the second point presumes two further, erroneous things.

The first is that states are limited in the power to decide what laws to enact and how to enforce them. That has never been the case. States create substantive rights and can choose to have those rights enforced through private tort- or tort-like litigation. The Constitution limits the substantive rights, not the enforcement process. If those state substantive rights abridge federal constitutional rights, rights-holders can raise that as a defense. This is what happened in New York Times and its progeny and in Shelley v. Kramer and what is happening now to Jack Phillips and Masterpiece Cakeshop. And the tort analogy is important because tort law uses exclusive private enforcement--the state will not sue or prosecute a newspaper for defamation.

The response, of course, is this is not tort law because tort law is about remedying personal injuries, where as an SB8 plaintiff can be any random person who need not show any personal effects. That leads to the second false premise--that Article III's personal-injury requirement is incorporated into Fourteenth Amendment due process. The Constitution limits state power to decide who can sue to enforce the state-law rights it creates, allowing states to authorize private suits only by those who have suffered a personal injury. But this also has never been the case. For example, the Court never considered or raised the possibility that California law violated the Constitution by authorizing non-injured, disconnected "any persons" to sue Nike for false advertising.*

[*] The Court dismissed cert as improvidently granted in Nike, avoiding an important First Amendment issue about the meaning of commercial speech. The possibility that the state-law authorization of private litigation was invalid would have given the Court an additional reason not to dismiss.

News reports suggest the district court will grant the injunction. I will be curious to see the grounds for the injunction, envisioning a "right-result-for-the-wrong-reason" opinion. The DOJ lawsuit runs into the same problem as private offensive actions. SB8 does not violate the Constitution by existing, so the constitutional violation and thus the injunction must focus on stopping enforcement of the law. But "Texas," in the sense of Texas executive officers, does not enforce this law. "Texas" includes state judges. But anti-suit relief from a federal court does not run against the courts or judges (as opposed to litigants) to keep them from adjudicating cases before them; capturing judges within "Texas" does not change that the injunction would prevent adjudication rather than enforcement. A proper injunction in the DOJ lawsuit depends on"Texas" including the millions of deputized "any persons" who do enforce the law. It must be that suing Texas reaches this entire group, even if an individual rights-holder plaintiff could not prove that any particular person intended to sue. I believe that argument works, in the unique and rare context of sovereign-to-sovereign. I doubt the district court can parse the issue that well. And no one will care if he reaches the "right" (in the eyes of reproductive-rights supporters, of which I am one) result.

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?