Thursday, September 20, 2018
The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.
The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.
The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:
To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .
Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .
Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate the effects of the alleged violation[s]."
The ruling sends the case back to the district court for further proceedings.
Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."
A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.
Here's the list of authors and titles, all accessible here:
Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”
Mary Anne Franks, “The Free Speech Fraternity”
Sarah C. Haan, “Facebook and the Identity Business”
Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”
Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”
Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”
Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories”
Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency”
Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”
Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”
Ruthann Robson, “The Cyber Company Town”
Kelli Sager& Selina MacLaren, “First Amendment Rights of Access”
Sonja West, “President Trump and the Press Clause: A Cautionary Tale”
Wednesday, September 19, 2018
The Supreme Court yesterday declined to stay a lower court ruling that struck an FEC reg that created a disclosure loophole for 501(c)(4) organizations.
The reg allowed 501(c)(4)s and cooperating super-PACs to avoid statutory disclosure requirements. The district court ruled that the reg was at odds with statutory disclosure requirements.
Chief Justice Roberts last week issued an order (without opinion) staying the district court ruling, but yesterday the full Court vacated the Chief's order and denied the stay (also without an opinion).
Under the (now not stayed) district court ruling, the FEC has 45 days to come up with new regs that comply with the statute.
Tuesday, September 18, 2018
In need of a new playlist — something constitutional perhaps?
Try "27: The Most Perfect Album" available from WNYC Radiolab here.
A bit of text about each of the amendments, but the treasure is the linked songs. For example, the Third Amendment features Palehound and They Might be Giants. Not to be missed is the Fifteenth Amendment
Not to be missed are the Fifteenth Amendment pieces by Aisha Burns and Nnamdi Ogbonnaya. But the whole project is worth a listen - and one can play through the list.
Wednesday, September 12, 2018
The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.
The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.
Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.
Tuesday, September 11, 2018
In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.
The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"
After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."
Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.
Eighth Circuit: Missouri Constitutional Amendment Prohibiting Inter-PAC Contributions Violates First Amendment
In its brief opinion in Free and Fair Election Fund v. Missouri Ethics Commission, a panel of the Eighth Circuit agreed with the district judge that Mo. Const. Art. VIII §23.3 violates the First Amendment.
The Missouri constitutional provision, approved by voters in November 2016, prohibited political action committees (PACs) from receiving contributions from other political action committees. The PAC Free and Fair Election Fund quickly challenged the constitutional amendment contending that the inter-PAC transfer ban violated the First Amendment. The district judge and appellate panel agreed, reasoning that restricting the recipients to whom a PAC can donate "limits the donor-PAC’s speech and associational rights under the First Amendment," and thus "the challenged law must advance a sufficiently important state interest and employ means closely drawn to avoid unnecessary abridgment of First Amendment freedoms."
Quoting McCutcheon v. FEC (2014), the Eighth Circuit reasoned:
There is only one legitimate state interest in restricting campaign finances: “preventing corruption or the appearance of corruption.” This interest is limited to preventing “only a specific type of corruption—‘quid pro quo’ corruption” or its appearance. A large donation that is not made “in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to . . . quid pro quo corruption.” Similarly, the general risk that a donor, through large donations, will “garner influence over or access to elected officials or political parties,” either in fact or in appearance, is insufficient to create quid pro quo corruption. Instead, “the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.”
[citations omitted]. The Eighth Circuit held that the inter-PAC transfer ban "does little, if anything, to further the objective of preventing corruption or the appearance of corruption," distinguishing the 2016 Eleventh Circuit decision in Alabama Democratic Conference v. Attorney General of Alabama, because "unlike Alabama, Missouri limits the contributions that a PAC can make to a candidate, so the anti-corruption interest cited in support of the Alabama law is diminished here."
The Eighth Circuit further found that the transfer ban was not closely drawn: "the risk of corruption from PAC- to-PAC transfers is modest at best, and other regulations like contribution limits and disclosure requirements act as prophylactic measures against quid pro quo corruption."
The Eighth Circuit affirmed the injunction against the Missouri constitutional provision, perhaps setting up a circuit conflict on the constitutionality of inter-PAC transfers.
Monday, September 10, 2018
Check out Adam Serwer's piece in The Atlantic, The Supreme Court is Headed Back to the 19th Century. Here's a taste:
The conservative majority on the Supreme Court today is similarly blinded [like the Court in the late 19th century] by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts's June 2018 ruling to uphold President Donald Trump's travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
Thursday, September 6, 2018
In its unanimous judgment and opinions in Johar v. Union of India, the Supreme Court of India has declared that §377 of the Indian Penal Code, which prohibited "carnal intercourse against the order of nature" is unconstitutional. The Court overruled the 2013 judgment in Koushal v. NAZ Foundation which we discussed here.
The opinions of the Court, totaling just short of 500 pages, rest the decision on Articles
- 14 (equality)
- 15 (prohibition of discrimination, including sex)
- 19 (protection of speech and association) and
- 21 (protection of liberty against deprivation without due process)
of the Constitution of India. The opinions include extensive discussions of cases from other nations and jurisdictions finding that criminalization of same-sex relations is unconstitutional, including Lawrence v. Texas (2003) in the United States, overruling Bowers v. Hardwick (1986).
History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
The choice of "history" as being held accountable rather than the Court (and its previous opinion) may be deflective, but it is more of an acknowledgement that the United States Supreme Court gave in Lawrence (and which would have been arguably very appropriate).
Wednesday, September 5, 2018
In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional. Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.
Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.
On the due process issue, Judge Ezra applied the doctrine from the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, and found that the Texas laws
place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.
By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.
This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.
Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.
Tuesday, September 4, 2018
In its Report entitled The Civil Rights Record of Judge Brett Kavanaugh, the Legal Defense and Education Fund, Inc. of the NAACP supports its opposition to the confirmation of Judge Kavanaugh to the United States Supreme Court.
At just shy of 100 pages, the Report details concerns regarding Kavanaugh's record in areas such as executive power, criminal justice, qualified immunity, voting rights, campaign finance, reproductive rights, Second Amendment, and access to justice issues such as standing and pro se litigants. But importantly, the Report makes clear:
even before considering the opinions he has authored, the speeches he has given, and his full legal record, the following is true: Judge Kavanaugh’s nomination is tainted by the influence of reactionary groups in his selection by the President and by the President’s assertion that his nominees will target and overturn settled Supreme Court precedent. A woefully inadequate document production is thwarting the Senate’s “advice and consent” function and the ability of the American public to determine whether they want their Senators to support this nominee. And perhaps most significantly, the President’s credibility has been sapped by the ongoing investigations that raise questions about the legitimacy of his occupancy of the Oval Office and the vast powers it confers, such as the nomination of Supreme Court Justices. This highly unusual and critical context powerfully bears on our assessment of Judge Kavanaugh’s nomination.
Yet the report does delve deeply into Kavanaugh's decisions and reaches conclusions. For example, after a discussion of his decisions about campaign finance, the Report states:
Judge Kavanaugh’s campaign finance record provides four overarching themes. First, Judge Kavanaugh appears hostile to campaign finance regulations, seeming to be unwilling to uphold regulations beyond a narrow anti-corruption rationale. Second, Judge Kavanaugh’s BCRA interpretation [in Bluman v. Federal Election Committee] about the scope of issue-advocacy expenditures would allow foreign actors to engage in thinly veiled “issue advocacy” that deepens racial and religious division leading up to elections. Such a narrow interpretation of the BCRA prevents it from barring foreign actors who influence U.S. elections in concrete ways and increases the likelihood of the use of these racial appeals during the next federal election, an important tool of suppressing the votes of communities of color. Third, as evident in Emily’s List [v. Federal Election Commission], Judge Kavanaugh appears willing to reach out unnecessarily to decide issues in this context. Fourth, Judge Kavanaugh would likely revisit the soft-money limits on contributions to political parties as justice.
At several points, the Report suggests questions and specific focus for the Senate questioning. The hearings begin today.
Saturday, September 1, 2018
Check out Michael Kruse's The Weekend at Yale That Changed American Politics on the founding of the Federalist Society, at Politico.