Constitutional Law Prof Blog

Seventh Circuit Finds Cook County Sheriff Violated First Amendment in "Backpage.com" Credit Card Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Writing for a unanimous three judge panel, Judge Posner's opinion in Backpage.com LLC v. Dart, finds that the "campaign" by the Sheriff of Cook County, Tom Dart to "crush Backpage’s adult section— crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution" violated the First Amendment. 

The centerpiece was a letter from the sheriff, beginning “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com.” The court finds it important that Dart is "sheriff first," and later observes:

Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Back- page. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff. It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.

Judge Posner's opinion takes pains to point out that the sheriff is not "on solid ground" in suggesting that "everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)" (emphasis in original).  Posner cites an article from xojane.com and wikipedia for information; he does not cite his own 1994 book Sex and Reason, though he might well have. 

Posner rejected the conclusion of the district judge that the credit card companies were not coerced - - - what would one expect the corporate executives to say?  - - - and likewise rejected the argument that the credit card companies were acting on new information brought to their attention by the sheriff.  An email exchange between two credit card employees referencing "blackmail" is mentioned.  Moreover, Posner rejected the argument that the sheriff had his own First Amendment right, as a citizen and even to engage in "government speech." 

A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.

Posner then expands on why the sheriff's speech was a threat, and, with a resort to a bit of "law and economics" explains why the credit card companies would 'knuckle under' with "such alacrity." 

This is a major win for Backpages.com - - - and cannot be good news for the Cook County sheriff's office.

Ruling Moves Soft-Money Ban One Step Closer to Doom

Steven D. Schwinn, John Marshall Law School

Judge Christopher Cooper (D.D.C.) ruled last week that a constitutional challenge to the federal restrictions on soft money by state and local political party committees will be heard by a three-judge district court. The ruling puts the case on the fast-track to the Supreme Court, whose plurality ruling last year in McCutcheon puts the federal soft-money restrictions on extremely shaky ground. The net result: this case, Republican Party of Louisiana v. FEC, will likely go to the Supreme Court; the Court will almost surely strike the soft-money restrictions; and the ruling will open yet another spigot for vast amounts of money to flow in politics.

The case involves BCRA's limits on soft money by state and local political parties. "Soft money" is a contribution to a political party for state and local elections and for "issue advertising," but not for influencing federal elections. (Money for federal elections is subject to other restrictions.) The 2002 Bipartisan Campaign Reform Act flatly prohibits national political parties from raising or spending soft money. But as to state and local party committees, BCRA permits them to use soft money for state and local elections and issue ads, but not for federal election activities. As a result, state and local political party committees use (1) a federal fund, consisting of contributions at and below federal (FECA) limits, for federal elections, and (2) nonfederal funds, consisting of soft-money contributions, for state and local elections and issue ads. (There is a third category, too: Levin funds. Levin funds are a type of nonfederal fund that can be used for some federal election activity. They don't appear to be a game-changer in this case, though.)

The plaintiffs in this case, state and local committees of the Republican Party in Louisiana, challenged BCRA's limits on soft-money. In particular, they challenged (1) BCRA's prohibition on the use of soft-money for federal election activity, (2) BCRA's requirement that state and local committees pay direct costs of fundraising activity for funds used for federal election activity, and (3) BCRA's monthly reporting requirement disbursements and receipts for federal election activity. (BCRA defines "federal election activity" as voter registration, voter identification and GOTV, in addition to campaign communications that refer to a clearly identified candidate for federal office.) The plaintiffs claim these restrictions violate the First Amendment.

The plaintiffs moved to convene a three-judge court to hear their claims. BCRA authorizes such a court to hear constitutional challenges to BCRA, and allows the loser to take the case directly to the Supreme Court. (Constitutional challenges to FECA, on the other hand, go first to an en banc court of appeals. The plaintiffs wanted to by-pass this step and fast-track the case to the Supreme Court, so, learning a lesson from earlier cases, they challenged BCRA's restrictions, not FECA's limits on contributions. Still, a successful challenge would effectively erase FECA's contribution limits.) In this way, the plaintiffs will get the case to the Supreme Court, and quickly.

And that matters, because the Supreme Court has signaled that it's ready to strike at least some soft-money restrictions. In McCutcheon, a plurality defined "corruption"--the only justification for contribution limits that will withstand constitutional scrutiny--quite narrowly, as "quid pro quo corruption or its appearance," or vote-buying. By that definition, the Court is almost sure to strike soft-money restrictions for things like voter registration, GOTV, and issue ads, and maybe others. (How do these things lead directly to quid pro quo corruption?) Even as the Court said in McCutcheon that it wasn't disturbing prior cases upholding restrictions on soft money, its cramped definition of corruption almost surely rules some or all of those restrictions out.

At least the uncertainty created by the Court's definition in McCutcheon caused Judge Cooper to conclude that the plaintiffs' constitutional challenge was "substantial"--a trigger for the three-judge court.

(One potentially complicating factor: The Court is now considering when a complaint is "substantial" so that it triggers a three-judge court, in Shapiro v. McManus. Judge Cooper wrote that if the Court's ruling in Shapiro alters his analysis of "substantial," the three-judge court could dissolve itself. That wouldn't end the case (necessarily), but it would require the plaintiffs to appeal through the D.C. Circuit.)

Judge Cooper's ruling did not address the merits (except to say that the challenge was "substantial"). Still, the ruling puts the case on the fast-track to the Supreme Court (subject to any potential speedbumps from Shapiro), where some or all of the soft-money restrictions on state and local political party committees will likely meet their doom.

ACLU Sues to Force Indiana to Take Syrian Refugees

Steven D. Schwinn, John Marshall Law School

The Indiana ACLU filed suit late yesterday in federal court seeking to force Indiana to take Syrian refugees. The lawsuit argues that Governor Mike Pence's action halting state aid to refugee resettlement efforts is preempted by federal law and violates equal protection and Title VI of the Civil Rights Act of 1964.

The case started when Indiana Governor Mike Pence said that his state would not accept Syrian refugees after the Paris attacks, and ordered state agencies not to provide assistance for resettlement efforts. Indiana then turned away a Syrian family (that was subsequently placed in Connecticut).

The ACLU sued on behalf of Exodus Refugee Immigration, Inc., a private non-profit that provides nuts-and-bolts assistance to refugee families in the state. Exodus claims it incurred costs in anticipation of the federal government accepting 10,000 Syrian refugees, some of whom would come to Indiana, but did not receive reimbursement from the state (as it usually would) after Governor Pence ordered state agencies to stop supporting Syrian refugee resettlement.

The complaint argues that the INA preempts Governor Pence's order. It recognizes that the INA requires the federal government to "take into account recommendations of the State," among other considerations and to the extent possible, but correctly says that "[t]he INA does not allow a State to veto placement of a refugee within the State . . . ." In short:

Defendants' suspension of the resettlement of Syrian refugees in Indiana is preempted by the Constitution and federal law for multiple reasons, including that it impinges on the exclusively federal authority to regulate immigration and to classify non-citizens; that federal law occupies the field of refugee admission and resettlement; and that it conflicts with the Immigration and Nationality Act and other federal statutes.

The plaintiffs also argue that Governor Pence's order violates equal protection and Title VI.

Indiana is one of 31 states that have "refused" to accept Syrian refugees after the Paris attacks. (The quotes are because states don't have this authority.) But this appears to be the first federal lawsuit against a governor's order to halt state support for resettlement.

Seventh Circuit Finds Wisconsin's Physician "Admitting Privileges" Abortion Requirement Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its divided opinion in Planned Parenthood of Wisconsin v. Schimel, the Seventh Circuit affirmed the district judge's grant of a permanent injunction against the 2013 Wisconsin Statute, §253.095(2), that prohibits a physician from performing an abortion unless she or he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed.

Writing for the majority, Judge Richard Posner (pictured) concluded that the state statute imposed an undue burden on women seeking abortions and focused on the statute's intent to "strew impediments to abortion" rather than achieve its stated purpose of protecting women's health. 

Judge Posner first noted that the statute was signed into law on a Friday and required doctors comply with it by Sunday; this revealed the legislative intent to prevent abortions rather than protect women's health. 

Additionally, Judge Posner concluded that any focus on women's health was spurious.  First, "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was per- formed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doc- tor has admitting privileges," citing the brief by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society.  Second, citing the same brief, Judge Posner concluded that studies show that "complications from an abortion are both rare and rarely dangerous," and contended that this fact "further attenuates the need for abortion doctors to have admitting privileges."  Third, Posner found it troublesome that abortion was singled out for such an admitting privileges law:

Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.

As to the "continuity of care" justification, Posner noted that while the statute requires the physician to have admitting privileges at a hospital within 30 miles, it does not require the physician to care for that patient at the hospital.

Judge Posner firmly rejected the argument that women in Wisconsin could exercise their constitutional right to an abortion in Chicago - - - across state lines - - - and further found that there was an undue burden for women given that such a trip could be "prohibitively expensive" especially for women living below the poverty line.

In his inimitable style, Judge Posner also provided his views on the Fifth Circuit's decision regarding Texas's HB2 in Whole Woman's Health v. Cole, to which the United States Supreme Court recently granted certiorari.  Judge Posner distinguished the Fifth Circuit's conclusion on the admitting privileges provision, noting that the plaintiffs there did not satisfy the court that the statute would lead to a substantial decline in the availability of abortion.  But Judge Posner also provided his opinion on the Texas statute's ambulatory surgical center requirements - - - notwithstanding the fact that a similar provision was not before the Seventh Circuit - - - noting that

The [Fifth Circuit] court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them,  although one wouldn’t think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions, which would require, in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clinics, extensive physical enlargement to house additional patients and doctors.

Judge Posner also responded to the Fifth Circuit's previous decision on HB2 in Planned Parenthood of Greater Texas v. Abbott that "excoriated" the Seventh Circuit's opinion upholding the preliminary injunction against the Wisconsin statute for engaging in "empirical basis review." Judge Posner wrote:

But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional.

Judge Posner ultimately concluded that "We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion."

Judge Daniel Manion's well-organized dissenting opinion disagrees with the majority at almost every turn.  For example, Judge Manion finds that abortion is "subject to less regulatory oversight than almost any area of medicine."  On the subject of state-lines, Judge Manion declares: "Consumers who live near the border of two states tend to shop at the closest destination, regardless of whether they reside in that state." Thus, the courts should consider "distance" rather than "the governor's mansion" to decide whether or not a regulation will constitute an undue burden.  Instead, Wisconsin - - - or the courts - - -need not intervene if "the market fails to provide qualified abortionists within its boundaries." 

For Posner, joined in the opinion by Judge David Hamilton, the overturning of Roe v. Wade is a "steep uphill fight," so persons opposed to abortion "proceed indirectly" in the guise of protecting women's health and thereby pass unconstitutional laws.  Whether or not Judge Posner's predictions will prove correct will be tested as the United States Supreme Court considers Whole Woman's Health this Term.

Second Circuit Keeps Drone Memos Under Wraps

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that plaintiffs are not entitled to certain memos and documents from the Office of Legal Counsel outlining the legal justification for the government's targeted killing (drone) program.

The ruling means that the OLC documents will remain under wraps, and we won't now see (and may never see) the full paper trail for the program.

Recall that the New York Times, Charlie Savage, Scott Shane, and the ACLU sued to obtain OLC memos under FOIA. In the first round of the litigation, the Second Circuit ordered the release of a 2010 OLC memo, because government officials had revealed the contents in public statements and thus waived its right to invoke a FOIA exemption. (The officials' statements revealing the contents came before and soon after the document was released.)

In this second round of litigation, the court today said that the district judge properly withheld the documents, because they contained intelligence information. As to the plaintiffs' argument that the government disclosed the contents of one of these memos, a 2002 memo, the court said that the disclosure came too long after the document (8 years), and that the disclosure might have come up in a different context. The court explained:

However, the passage of a significant interval of time between a protected document and a Government official's subsequent statement discussing the same or a similar topic considered in the document inevitably raises a concern that the context in which the official spoke might be significantly different from the context in which the earlier document was prepared. Even if the content of legal reasoning set forth in one context is somewhat similar to such reasoning that is later explained publicly in another context, such similarity does not necessarily result in waiver. Moreover, ignoring both the differences in context and the passage of a significant interval of time would risk requiring Government officials to consider numerous arguably similar documents prepared long before and then measure their public words very carefully so as not to inadvertently precipitate a waiver of protection for those earlier documents.

The upshot is that we won't get these additional OLC documents and won't learn much or anything more than we already know about the legal justifications for the program.

Students Lack Standing to Challenge SAT, ACT Sale of Personal Information for Profit

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled today that students who authorized the corporations who run the SAT and ACT standardized tests to provide their personal information to educational organizations lacked standing to challenge the corporations' sale of that information. The ruling means that the putative class action against the SAT and ACT is dismissed.

Along the way, the court also ruled that the Iqbal/Twombly heightened pleading standard ("plausibility") applies to facial challenges to standing under Rule 12(b)(6). This may raise the bar for plaintiffs in pleading and arguing standing. This portion of the ruling aligns with the approach in several other circuits; but it's in tension with the Ninth Circuit, which says that "Twombly and Iqbal are ill-suited to application in the constitutional standing context."

The case arose when ACT, Inc., and The College Board (which administers the SAT) sold personal information of students who signed up to take the tests. The students agreed that the corporations could share their personal information with educational groups (schools, scholarship funds, and the like), but they didn't know that the corporations were going to sell their personal information. (The price was small--$.33 per student per educational group--but would add up quickly for the defendants.) The plaintiffs argued that they were harmed by the sale because (1) they should have received some of the proceeds, (2) the sale diminished the value of their personal information, and (3) they paid a fee to take the ACT or SAT, which presumably would have been lower if they had not consented to the sale.

The Seventh Circuit flatly rejected these claims. The court ruled that under the Iqbal/Twombly standard, the plaintiffs' allegations didn't plausibly suggest that they'd been harmed. The court said that just because the defendants benefited doesn't mean that the plaintiffs were harmed for standing purposes: "Plaintiffs have claimed injury based solely on a gain to Defendants and without alleging a loss to themselves." (Although the court applied the Iqbal/Twombly standard, it looks like the plaintiffs would have failed even without it.)

The court rejected the plaintiffs' claim that their complaint gave rise to a reasonable inference that if they knew of the sale they would have conditioned their permission on receipt of a portion of the proceeds. The court said that the plaintiffs didn't provide factual support for the inference, so it didn't even need to get to whether the claim gives rise to a plausible claim of subject matter jurisdiction under Iqbal and Twombly.

In other words, it's not clear that the heightened Iqbal/Twombly standard mattered to the outcome at all. Still, the case says that the standard now applies to standing in the Seventh Circuit.

 

Federal Judge Finds Transgender Status a Fundamental Privacy Right

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause.  The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses.  Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate.   Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.

sample Michigan driver license via

In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”:  the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.”  The court found that the latter - - - the "informational privacy" interest - - - was implicated.  This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature."  The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied.  The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.

The judge then applied strict scrutiny, writing that when

state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.”  Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”

[citations and footnote omitted].   The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests."  The judge considered two facts especially salient.  First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification).  Second,  Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."

While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.

 

Federal Judge Applies Intermediate Scrutiny in Transgender Equal Protection Claim

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Considering a complaint regarding an arrest during the 2011 Occupy Wall Street protests, United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion  in Adkins v. City of New York.

 The judge based his opinion on the Second Circuit's 2012 decision in United States v. Windsor (affirmed on other grounds by the United States Supreme Court):

[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.

Judge Rakoff then applied each of the factors (derived from Carolene Products' footnote four) to hold that transgender people are a quasi-suspect class.  Indeed, Judge Rakoff decides that in each of the factors, transgender people more easily meet the factor than "gay people" did at the time of the Second Circuit's decision in Windsor.  For example, on the political weakness factor, Judge Rakoff reasoned:

Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.

In applying intermediate scrutiny, the judge rejected the government's argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss).  Judge Rakoff continued:

Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.

The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit's decision in Windsor occurred after the October 2011 Occupy Wall Street protest.  However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.

Thus, the case moves to settlement as so many of the Occupy arrest cases have done - - - unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause.

[image via]

Supreme Court Grants Certiorari in Texas HB2 Abortion Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. 

The Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas.  The facility in McAllen is the only one in the "Rio Grande Valley."  However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico.  The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border."   Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.

The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban.  The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.

Can a trial judge prohibit defendants (and spectators) from wearing "Black Lives Matter" shirts?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The trial judge in Massachusetts set to preside over the prosecution of four Black Lives Matter protesters has reportedly told the defendants that they cannot wear shirts with those words - - - Black Lives Matter - - - during the trial.  Apparently at a pretrial hearing, the judge noticed one of the defendants wearing attire with the words and stated:

"Is that appropriate to wear in front of a jury? Why isn't that unfair to the commonwealth? You're asking me to ferret out jurors who are not fair ... I'm not going to allow clothing with that message."

While judges have a great deal of discretion in the courtroom, the courtroom is not without First Amendment protections, even when it comes to the symbolic expression of attire.  However, most of the cases involving defendant attire have been about protecting the defendant's right to a fair trial rather than any right of the government's.  A quintet of cases from the United States Supreme Court - - - Illinois v. Allen (1973), Estelle v. Williams (1976), Holbrook v. Flynn (1986), Deck v. Missouri (2005), and Carey v. Musladin (2006) - - - considered various aspects of "attire" during trial.  In Allen, it was the possibility of the shackling and gagging the defendant,  in Williams it was the defendant's "prison garb," in Holbrook v. Flynn it was uniformed guards in the courtroom, in Deck it was shackling the defendant,  and in Musladin it was the defendant's objection to spectators' wearing buttons with the victim's photograph.   

The rights of court spectators to First Amendment expressions is not well-established.  Justice Souter concurred in Musladin mentioning the possibility of such a right, but contended that trial judges had affirmative obligations to ensure a fair trial, including regulating the attire of spectators. But what if the spectators support the defendant?  Some judges have prohibited supportive attire.  For example, in 2013 an Indiana judge prohibited spectators from wearing buttons supporting Bei Bei Shuai, on trial for unsuccessful suicide attempt that resulted in a miscarriage.  And last year, a judge banned spectators from wearing pink hands pinned to their shirts in support of Cecily McMillan for assaulting a police officer who she said had grabbed her breast.  

As to the defendants, they risk being held in contempt if they do wear the prohibited clothing.  Perhaps the most famous case involved the Chicago Eight conspiracy trial.

But the First Amendment principle is preserved whether or not the defendants comply with the judge's order about their expressive attire.  Prohibiting defendants from wearing non-obscene words that support their political viewpoints certainly raises a First Amendment issue of viewpoint and content discrimination.

[image via; video with defendant and shirt here]

Daily Read: SALT Amicus Brief in Fisher v. UT (II)

As the oral argument scheduled for December 9  for Fisher II approaches, organizations and individuals are filing amicus briefs for the Court's consideration.  SALT - - - the Society of American Law Teachers - - - a progressive organization of law faculty that has long fought for diversity in legal education, has predictably filed an amicus brief supporting University of Texas's admissions program. 

One of the more interesting aspects of the brief is its argument that race neutrality is essentially impossible: "race-blind holistic review is not only a contradiction in terms, it is infeasible."  As the brief argues, "Put simply, because peoples’ lives are not “color blind,” neither can a holistic admissions policy be."

Consider a college application from an individual who lists youth leadership in his or her African Methodist Episcopal Church as an activity. Or consider an application from a first-generation Latina high-school senior whose personal essay discusses her immigrant parents’ experiences and how she learned to thrive in an English-dominated culture even though Spanish is the language spoken at home. If the reader is to conduct holistic review but cannot consider race, the reader is confronted with uncomfortable choices about how to handle these applications.

Moreover, if the reader cannot consider race, the reader would be confronted with an impossible task, because race affects assessments of individuals consciously or unconsciously, regardless of intentions and any mandate from this Court. . . .

Just as Dostoevsky’s polar bear will occupy the mind of anyone challenged not to think about it, so too will the admonition not to think about race generate an unspoken preoccupation with that subject.

 Although the SALT amicus brief does not argue that race will then be only used negatively, that is perhaps a consequence of an elimination of racialized diversity as a positive value.

 

President, DAPA Lose at Fifth Circuit

Steven D. Schwinn, John Marshall Law School

A sharply divided panel of the Fifth Circuit ruled today that states had a substantial likelihood of success on the merits in their case against the President's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The ruling affirms a nationwide injunction issued by the lower court and means that the government is barred from enforcing DAPA across the country--unless and until the government files for and wins a stay and appeals.

The ruling is a win for plaintiff-states that don't like DAPA and a loss, though perhaps not unexpected (at the conservative Fifth Circuit), for the government.

The dispute between the majority and the dissent on the merits comes down to whether DAPA is really an exercise of discretionary non-enforcement (majority says no; dissent says yes) and whether DAPA violates federal law (majority says yes; dissent says no). The majority and dissent also dispute the states' ability to bring the suit in the first place, or their standing.

This ruling is surely not the last say on the question; this case is undoubtedly going to the Supreme Court.

The court issued four key holdings. First, the court said that the states had standing, and that the case is justiciable. Next, the court said that DAPA likely violated notice-and-comment rules of the APA. Third, the court said that DAPA likely violated federal law (the Immigration and Naturalization Act) and therefore violated substantive APA requirements. Finally, the court said that the district court was within its discretion to issue a nationwide injunction.

The court did not address the plaintiffs' Take Care Clause challenge.

As to standing, the court said as an initial matter that the states were due "special solicitude" for standing under Massachusetts v. EPA. The court went on to say that the states had standing because DAPA would require them to issue drivers licenses to DAPA beneficiaries, because DAPA would "impos[e] substantial pressure on them to change their laws" for drivers licenses, and because the states "now rely on the federal government to protect their interests" in immigration matters.

On the procedural APA claim, the court ruled that the states "established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion," despite conflicting evidence on the point, apparently ignored by the lower court. The court also ruled that DAPA is a substantive rule (and not procedural), because "receipt of DAPA benefits implies a 'stamp of approval' from the government and 'encodes a substantive value judgment,' such that the program cannot be considered procedural." As a result, according to the court, DAPA was subject to APA notice-and-comment rulemaking, and, because the government didn't use notice and comment, the states had a substantial likelihood of success on their procedural APA claim.

On the substantive APA claim, the court said that DAPA is "manifestly contrary to the [Immigration and Naturalization Act]," in particular, the INA's "specific and intricate provisions" that "directly addressed the precise question at issue." The court rejected the government's claim that DAPA is consistent with historical practice.

Importantly, the court did not "address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA . . . ." It only concluded "that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens."

Finally, the court said that the district court could issue a nationwide injunction, because, in short, immigration is a nationwide issue that calls for uniform regulation.

Judge King wrote a lengthy and sharp dissent, challenging the majority at each turn.

Supremes Take Up Contraception Mandate Accommodation

Steven D. Schwinn, John Marshall Law School

The Supreme Court yesterday agreed to hear the cases testing whether the government's accommodation to the "contraception mandate" violates the Religious Freedom Restoration Act.

The move was expected. The Court will likely hear oral arguments in March 2016.

The cases involve HHS's requirement under the Affordable Care Act that employers' health insurance plans include certain kinds of contraception, and the government's accommodation to that requirement for religious non-profits. (Religions are already exempt.) The accommodation simply requires non-profit that objects to providing contraception on religious grounds to so notify the government (a letter will do, or the non-profit can use a government form). At that point, the government requires the insurer or third-party administrator to provide contraception, free of charge, directly to the non-profit's employees.

Some religious non-profits argue that the accommodation itself violates the RFRA, because their notification to the government triggers the provision of contraception. Seven circuits have rejected that claim; only the Eighth Circuit has accepted it. We posted most recently, on the Eighth Circuit's ruling, here.

The accommodation isn't a new idea. The Court itself identified it as a possible solution to objecting closely held for-profit corporations in Hobby Lobby. But the Court didn't say whether it would violate the RFRA--that issue simply wasn't before the Court.

The parties in the case will argue whether the accommodation creates a "substantial burden" on their religious freedoms and, if so, whether it is narrowly tailored to meet a compelling government interest.

The non-profits' arguments push the bounds of the RFRA. After all, if an accommodation can be a "substantial burden"--and one that operates in such a minimally intrusive way--it's hard to see what couldn't be a substantial burden on some religion. Moreover, to get to the non-profits' result, the courts have to accept their view of how the law works--that the accommodation triggers the provision of contraception (in contrast to the view that the law itself triggers the requirement that insurers provide contraception). The Eighth Circuit (and the Eighth Circuit alone) got there, but seemingly by deferring to the non-profits' view of their own religion, as I explained here. Under RFRA, the courts certain defer to a religion on its own tenets and beliefs, but it's hard to see why the courts should extend that deference to a religious belief about the way the law works.

Sixth Circuit Says Clean Air Act Does Not Preempt State Common Law Claims

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled yesterday that the federal Clean Air Act does not preempt state common law claims.

The ruling was hardly a surprise, given the plain language of the CAA. Still, the case is a victory for those who seek to enforce clean air requirements through the higher standards of state common law. (The court emphasized several times that the CAA permits states to adopt more stringent standards than the federal standards.) The ruling also allows the plaintiffs' state common law case to move forward.

The case arose when neighbors of Diageo Americas Supply, Inc., a whiskey distiller, complained that ethanol vapors from the facility combined with condensation to propagate "whiskey fungus" on their property. The neighbors filed suit in federal court, alleging state common law caused of action. Diageo moved to dismiss, arguing that the CAA preempted these claims.

The Sixth Circuit rejected that argument. The court looked to the plain text of the Act, congressional purposes, and Supreme Court precedent--all of which pointed against preemption. But the case can be resolved on the text alone, in particular, the savings clause. As the court explained:

The states' rights savings clause of the Clean Air Act expressly preserves the state common law standards on which plaintiffs sue. The clause saves from preemption "the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution," except that the "State or political subdivision may not adopt or enforce any emission standard or limitation" that is "less stringent" than a standard or limitation under an applicable implementation plan or specified federal statute.

The court went on to say that state courts are part of the "state," and that common law requirements are "requirement[s] respecting control or abatement or air pollution."

In addition to looking at text, purpose, and precedent, the court added a federalism point:

When Congress acts to preempt state law--especially in areas of longstanding state concern--it treads on the states' customary prerogatives in ways that risk upsetting the traditional federal-state balance of authority. This is why there is a strong presumption against federal preemption of state law, one that operates with special force in cases "in which Congress has legislated . . . in a field which the States have traditionally occupied." Environmental regulation is a field that the states have traditionally occupied. Accordingly, even if the express language of the states' rights savings clause here did not preserve state common law claims, principles of federalism and respect for states' rights would likely do so in the absence of a clear expression of such preemption.

Standing, Access Case Meets Sharply Divided Court

Steven D. Schwinn, John Marshall Law School

The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.

The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.

(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)

The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).

Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.

Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:

Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."

And we distinguished that from procedural requirements in vacuo.

. . .

Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.

Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.

On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:

Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?

Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.

Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.

Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:

Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.

. . .

And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.

The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.

Court Hears Oral Arguments in Batson Challenge to Death Sentence

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.