Constitutional Law Prof Blog

District Court Halts Much of Texas's Anti-Sanctuary Cities Law

Steven D. Schwinn, John Marshall Law School

Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.

But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.

In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.

Here's a more complete run-down:

Prohibition on Preventing Communication

Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:

(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.

(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:

a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;

b. Maintaining the information; or

c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.

(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.

(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.

The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).

But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).

Anti-Endorsement Provision

Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."

The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).

Prohibitions on Local Pattern or Practice Limiting Enforcement

Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."

The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.

Detainer Requests and Detention

Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.

The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate[] that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."

But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.

D.C. Circuit Tosses Antitrust, First Amendment Claims of Third Party Presidential Candidates

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.

The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.

The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.

Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."

As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."

Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.

District Judge Dismisses Sarah Palin's Defamation Complaint Against the Ne York Times

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

 In his opinion in Palin v. The New York Times, Senior United States District Judge Jed Rakoff dismissed Sarah Palin's complaint for defamation for failure to satisfy First Amendment requirements under New York Times v. Sullivan.

Sarah Palin's complaint was based on a New York Times editorial written after James Hodgkinson "opened fire on members of Congress" and others playing baseball in a field in Virginia in June.  The editorial decried how "vicious" American politics had become.  Importantly, it referenced a previous act of violence by Jared Lee Loughner, resulting in deaths and the injury of Congresswoman Gabriel Giffords. The editorial stated that "the link to political incitement was clear" and that before the Loughner shooting "Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs."  In the internet-published editorial, "circulated" was hyperlinked to a story which did not support that any link was established.

Judge Rakoff  opined that on its face, the complaint was not sufficient to meet the plausibility standard for dismissal relevant to the First Amendment requirement of actual malice under New York Times v. Sullivan applicable to Palin, an "acknowledged public figure."  But Judge Rakoff held an evidentiary hearing directed in part to determining actual malice of the editorial writer(s).  The Judge found no actual malice, noting that research failures or mistakes do not rise to that level, that the hyperlink's lack of support for the proposition weighed against malice, and that the quick corrections by the newspaper also weighed against actual malice. Judge Rakoff rejected Palin's contention that the editor, James Bennet, was hostile noting that Bennet's "long association with liberal publications" and relation to a political figure opposed to Sarah Palin could not constitute actual malice. "If such political opposition counted as evidence of actual malice, the protections imposed by Sullivan and its progeny would swiftly became a nullity." Judge Rakoff rejected the argument that the New York Times' "collective knowledge and intent" was relevant, although the judge stated that even if it was, the malice standard was not met.

 Rakoff concluded:

each and every item of alleged support for plaintiffs claim of actual malice consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof that must be provided before plaintiff can be said to have adequately alleged clear and convincing evidence of actual malice.

We come back to the basics. What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin they’re very rapidly corrected. Negligence this maybe; a defamation of a public figure it plainly is not.

The court dismissed the complaint with prejudice.  It is uncertain whether Palin would appeal.

 

Alito Stays Three-Judge Court Ruling on Texas Redistricting Violations

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

 In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.

Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." 

As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.

[image: Caricature of Associate Justice Alito by Donkey Hotey via ]

 

Lawsuits Filed Against Transgender Troop Ban

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

 Late Friday August 25, President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex."  By Monday, there were at least three lawsuits challenging the action on constitutional grounds.

A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.

Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole.  Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.

On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories.  In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power.  In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."

However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.

While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.

This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief. 

 

Ninth Circuit Says No Qualified Immunity for Off-Duty but Uniformed Officer Acting as Private Security Guard

Steven D. Schwinn, John Marshall Law School

In an apparent first in the circuits, the Ninth Circuit ruled today that an off-duty but uniformed police officer who was acting as a private security guard could not assert qualified immunity in a suit for a constitutional tort against him. The court went on to say that a reasonable jury could have found for the plaintiff on the merits, so remanded the case for further proceedings.

The case arose when the Kyo-ya Hotel and Resort hired Honolulu Police Department Officer Kinchung Chung as a "special duty" officer to provide security for a New Year's Eve party. Chung was off official duty, but he nevertheless wore his police uniform. During the party, Chung detained Dillon Bracken, a hotel patron who crashed the party, and stood by while hotel security guards assaulted Bracken.

Bracken sued Chung for constitutional torts under 42 U.S.C. Sec. 1983. Chung moved to dismiss, arguing that he enjoyed qualified immunity. The Ninth Circuit disagreed.

The court first noted that state action for the purpose of Section 1983 isn't coextensive with state action for the purpose of qualified immunity. That's because Section 1983 is designed "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims," whereas qualified immunity "protect[s] government's ability to perform its traditional functions."

That said, the court went on to rule that Chung couldn't claim qualified immunity. Applying the Supreme Court's two-part test, the court wrote,

First, he has shown no "firmly rooted" tradition of immunity for off-duty or special duty officers acting as private security guards. . . . Second, Chung has not shown that the policies underpinning qualified immunity warrant invoking the doctrine here. In detaining Bracken, Chung did not act "in performance of public duties" or to "carry[] out the work of government."

The case appears to be the first circuit court ruling on whether an off-duty police officer acting as a private security guard can claim qualified immunity.

Third Circuit Gives TSA Agent Free Pass for First Amendment Violation

Steven D. Schwinn, John Marshall Law School

The Third Circuit ruled yesterday that a plaintiff couldn't bring a First Amendment claim against a TSA officer after the officer caused the plaintiff to be detained and charged with making a bomb threat at airport security. The case, which applied the Supreme Court's recent Bivens ruling, Ziglar v. Abassi, walks back circuit law authorizing a Bivens claim for First Amendment violations, and leaves plaintiffs with no federal judicial remedy for a TSA officer's violation of First Amendment rights.

The ruling is a faithful application of Ziglar, but also illustrates the sweep and significance of that decision in restricting constitutional tort claims, especially in areas in any way touching on national security.

The case arose when Roger Vanderklok attempted to pass through Philadelphia airport security with a length of PVC pipe, capped at both ends and containing a watch and heart-monitor for a half-marathon that he intended to run in Miami. TSA employee Charles Kieser performed a secondary screening, which Vanderklok alleged was unduly aggressive. Vanderklok said that he intended to file a complaint; Kieser then called the Philadelphia police and falsely reported that Vanderklok threatened to bring a bomb to the airport. Vanderklook was arrested and charged, but later acquitted, after airport surveillance footage undermined Kieser's story.

Vanderklok sued Kieser for a variety of violations, including a First Amendment violation, pursuant to Bivens. (The Third Circuit only addressed the First Amendment claim.) The court walked back its own circuit law, which applied Bivens to First Amendment claims, and ruled that Bivens didn't "extend" to Vanderklok's First Amendment claim.

The court noted that airport security created a new Bivens context, and that Bivens law had changed:

Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue, as Vanderklok does, that First Amendment retaliation claims have been permitted under Bivens before. We must look at the issue anew in this particular context, airport security, and as it pertains to this particular category of defendants, TSA screeners.

Since Bivens was decided, judicial attitudes about the creation of new causes of action have changed considerably. Courts will no longer imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."

(Cites to Ziglar omitted.)

As to the Bivens analysis, the court said first that Vanderklok didn't have a remedy under the Federal Tort Claims Act, but may have had a remedy under the DHS Traveler Redress Inquiry Program.

Ultimately, it didn't matter, though, because Vanderklok's claim failed on the second Bivens inquiry. In particular, the court said second that the special factor of national security counseled against a Bivens remedy here:

A special factor counseling hesitation in implying a Bivens action here is that Vanderklok's claims can be seen as implicating "the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security." In language laden with separation-of-powers concerns in the context of foreign affairs, national security, and defense, the court wrote that it's up to Congress, not the courts, to create a remedy for constitutional violations in this kind of situation.

The court added a final "practical concern" to authorizing a Bivens remedy. It wrote that because TSA employees aren't typically law enforcement officers, they aren't trained in probable cause determinations of the type that would've been necessary here. Therefore, the court said, "a Bivens claim is poorly suited to address wrongs by line TSA employees. Indeed, the inherent uncertainty surrounding the probable cause standard is itself a factor counseling hesitation."

The ruling ends Vanderklok's First-Amendment portion of his lawsuit.

District Judge Finds Arizona Anti-Ethnic Studies Law Violates Fourteenth and First Amendments

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

 In his opinion in González v. Douglas, United States Circuit Judge A. Wallace Tashima, sitting by designation in the District of Arizona, found that Arizona Revised Statutes §§15-111 and 15-112, the so-called anti-ethnic studies law eliminating the Tucson Unified School District's Mexican-American Studies (MAS) program violated the Fourteenth and First Amendments.

Recall that the law, passed in 2010, prohibits any school or charter school from including in its program of instruction any courses or classes that:

• Promote resentment toward a race or class of people; 
• Are designed primarily for pupils of a particular ethnic group; or
• Advocate ethnic solidarity instead of the treatment of pupils as individuals

Recall also that in 2013, Judge Tashima upheld most of the statute in a facial challenge based on the First and Fourteenth Amendments on summary judgment.

On appeal, in Arce v. Douglas, the Ninth Circuit concluded that subsections (3) and (4) of the statute, while not facially discriminatory, raised Equal Protection Clause issues because of evidence of their discriminatory purpose in enactment or enforcement, and found there might be First Amendment viewpoint discrimination, and remanded the case.

In his opinion on remand, Judge Tashima found both an equal protection and First Amendment violation after a non-jury trial in an opinion with extensive findings of fact. As the Ninth Circuit had instructed, Judge Tashima considered the equal protection issue regarding racial intent in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

• (1) the impact of the official action and whether it bears more heavily on one race than another;
• (2) the historical background of the decision;
• (3) the specific sequence of events leading to the challenged action;
• (4) the defendant’s departures from normal procedures or substantive conclusions; and
• (5) the relevant legislative or administrative history.

Judge Tashima's opinion carefully analyzes each of the factors. He noted that the anonymous blog posts of  then-Senator John Huppenthal, who  was chairman of the Senate Education Accountability and Reform Committee at the time the statute was passed, were "the most important and direct evidence that racial animus infected the decision to enact A.R.S. § 15-112." Judge Tashima rejected the defendants' argument that Huppenthal’s public statements, which were facially neutral as to race, should be considered more probative of his true intent. Instead,

The blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly. Huppenthal’s use of pseudonyms also shows consciousness of guilt. Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity. 


 In looking at the legislative history, Judge Tashima also focused on Huppenthal, who along with other officials used "code words" to refer to Mexican-Americans.  These code words included “Raza,” “un-American,” “radical,” “communist,” “Aztlán,” and “M.E.Ch.a,” were employed as derogatory terms. "In Huppenthal’s own words, the term “Raza” became “shorthand for . . . communicating with Republican primary voters” in the Tucson community." Then, considering the application of the statute to the Tucson program, Judge Tashima noted that Huppenthal had become Superintendent of Public Instruction, with an enforcement process rife with irregularities.  Essentially, it seemed that Huppenthal and other officials, believed they knew what really happened in the classrooms, with no need to investigate or believe evidence contrary to their preconceived notions.  In sum, "the passage and enforcement of the law against the MAS program were motivated by anti-Mexican-American attitudes."

On the First Amendment claim, Judge Tashima relied upon Island Trees Union Free Sch. Dist. No. 26 v. Pico (1982), that there may be a  First Amendment violation if the reasons offered by the state, "though pedagogically legitimate on their face, in fact serve to mask other illicit motivations."  Judge Tashima found that while the "stated policy" of the statute was to "reduce racism in schools, which is a legitimate pedagogical objective," the plaintiffs' argument that this was only a pretextual objective, and that the "statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons was valid, "because both enactment and enforcement were motivated by racial animus" as found in deciding the Fourteenth Amendment claim.

 Given the previous rulings and Judge Tashima's extensive findings of fact including on credibility, the ruling that the enforcement of the statute is unconstitutional may be the final chapter in the lengthy saga of Arizona's anti-ethnic studies statute.

 

 

[ image: Painel Paulo Freire by Luiz Carlos Cappellano via]

 

 

Second Circuit Rules Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

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

 In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.

As the opinion by Judge Barrington Parker states:

We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.

Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  

In applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found

it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.

Thus, the majority concluded that the ordinance violated the First Amendment.

The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed.  Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast.").  He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.

Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.

 

Fifth Circuit Says Group Has Standing, Strikes Texas Voter-Interpreter Restriction

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled this week that an organization had standing to challenge Texas's restriction on a voter's use of an interpreter under the Voting Rights Act. But at the same time, the court said that the district court's injunction was too broad. The ruling, a victory for the plaintiffs, nevertheless sends the case back to the district court for a more narrowly tailored injunction.

The case arose when the Organization for Chinese Americans stepped-in to a lawsuit challenging Texas's law that limits a non-English-speaking voter's use of an interpreter at the polls. Texas law says that such a voter can use an interpreter "outside the ballot box," but that the interpreter must "be a registered voter of the county in which the voter needing the interpreter resides." OCA argued that the provision violated Section 208 of the VRA, which says that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union."

The court ruled that OCA had organizational standing, because, as an educational organization, it had to ramp up its educational efforts in response to Texas's law. In particular,

OCA calibrated its outreach efforts to spend extra time and money educating its members about these Texas provisions and how to avoid their negative effects. Specifically, OCA employees and volunteers must carefully explain to those it contacts, in the language they understand, that when they bring an interpreter to a Texas polling location, the interpreter must identify his or herself as an "assistor" rather than as an "interpreter" to avoid being turned away under Texas law . . . .

The court went on to reject Texas's claim of sovereign immunity, because OCA sought only declaratory and injunctive relief (and not monetary damages).

On the merits, the court concluded that the Texas provision violated Section 208 of the VRA, but that the district court went too far in enjoining "any provision of its Election Code to the extent it is inconsistent with the VRA." The court remanded the case for a more narrowly tailored injunction.

Sixth Circuit Says No Standing to Challenge Foreign Account Tax Compliance Act

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled yesterday that a group of plaintiffs, including taxpayers with overseas accounts and Senator Rand Paul, lacked standing to challenge the reporting and penalty provisions under the Foreign Account Tax Compliance Act. The ruling ends this challenge.

The FATCA imposes certain reporting requirements, and provides for penalties for noncompliance, on individual taxpayers and foreign financial institutions ("FFIs") with overseas accounts. It also requires FFIs to withhold 30% of every payment made by the FFI to a noncompliant account holder.

In order to implement the FATCA and facilitate the FFIs' disclosure of financial-account information to the IRS, the IRS has entered into a number of intergovernmental agreements ("IGAs").

Separately, the Bank Secrecy Act imposes a foreign account reporting requirement on U.S. citizens living abroad who have aggregate foreign-account balances over $10,000. The Act also imposes a penalty of 50% of the value of the reportable accounts, or $100,000, whichever is greater.

Several individuals with foreign accounts and U.S. Senator Rand Paul sued, arguing that the provisions violate equal protection (by treating citizens living overseas differently than citizens living in the U.S.); that the penalties constitute excessive fines; that the reporting requirements violate the plaintiffs' right to privacy; and that the IRS lacked authority to enter into the IGAs without Senate advice and consent.

The Sixth Circuit didn't touch the merits, however, and instead ruled that the plaintiffs lacked standing. As to most of the plaintiffs, the court said that they weren't actually harmed, because "no Plaintiff has alleged any actual enforcement of FATCA such as a demand for compliance with the individual-reporting requirement, the imposition of a penalty for noncompliance, or an FFI's deduction of the Passthru Penalty from a payment to or from a foreign account."

Moreover, the court said that no plaintiff could satisfy the standard for a preenforcement challenge, because "no Plaintiff claims to hold enough foreign assets to be subject to the individual-reporting, and, as a result, no Plaintiff can claim that there is a 'credible threat' of" enforcement against them.

The court rejected some plaintiffs' claims of harms that arose apart from FATCA's reporting requirements and penalties, because those harms weren't fairly traceable to the FATCA. Finally, the court said that Senator Paul lacked standing under the no-legislator-standing rule. "Rather, Senator Paul has a remedy in the legislature, which is to seek repeal or amendment of FATCA itself, under the aegis of which Treasury is executing the IGAs.

No Individual Right to Sue When State Drops Planned Parenthood from Medicaid, Says Eighth Circuit

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit ruled this week that Planned Parenthood patients didn't have an individual right to sue Arkansas when the state terminated its Medicaid provider agreement with the organization. But the two judges in the majority differed as to their reasoning, and a third judge sharply dissented. The ruling creates a circuit split on the question and sets the case up for possible en banc review or even cert.

The issue in the case was whether Planned Parenthood patients could sue the state under Section 23(A) of the Medicaid Act and Section 1983. Here's how it works: The Medicaid Act requires the Secretary of HHS to "approve any plan which fulfills the conditions specified in subsection (a)." Subsection (a), in turn, says that "[a] State plan for medical assistance must" satisfy certain conditions, including the one at issue here, Section 23(A), that is, that the state plan must "provide that . . . any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services requires . . . who undertakes to provide him such services."

So the issue was whether this last provision created a private right of action for the patients. The court said no.

Judge Colloton wrote that the provision didn't create a private right of action, because recent Supreme Court doctrine set a higher standard for determining whether a congressional act created an individual cause of action, and that standard wasn't met here. Judge Colloton explained:

There was a time, illustrated by Wilder v. Virginia Hospital Association when the Medicaid Act was deemed to create an enforceable right if the provision in question was "intend[ed] to benefit the putative plaintiff." Starting from that premise, Wilder held that the Boren Amendment to Section 13(A) of the Medicaid Act created a federal right for providers that was enforceable under Section 1938.

Later decisions, however, show that the governing standard for identifying enforceable federal rights in spending statutes is more rigorous. It is not enough, as Wilder and Blessing v. Freestone might have suggested, to show simply that a plaintiff "falls within the general zone of interest that the statute is intended to protect." It is now settled that nothign "short of an unambiguously conferred right" will support a cause of action under Section 1983.

Judge Colloton went on to argue that the Court's recent ruling in Armstrong v. Exceptional Child Ctr. repudiated Wilder and thus supported this conclusion. Judge Colloton went on to argue that this higher standard wasn't met here, because "the focus of the Act [a directive to HHS to approve certain state Medicaid plans] is two steps removed from the interests of the patients"; Congress authorized other ways of enforcing the Act (by withdrawing federal funds); and the Medicaid Act, with its "aggregate focus," "do[es] not give rise to individual rights." Judge Colloton also noted that there's an administrative appeal process for Planned Parenthood (which it did not pursue here).

Judge Shepherd concurred, but for a different reason. Judge Shepherd argued that even if Section 23(A) provided a substantive right to sue under Section 1983, "the right provided is to a range of qualified providers--not the right to a particular provider the State has decertified."

Judge Melloy dissented, siding with the several circuits and district courts that have found an individual right of action under Section 23(A). Judge Melloy wrote that Blessing established a three-part test--(1) whether Congress intended that the provision benefit the plaintiff, (2) whether the right "is not so vague and amorphous that is enforcement would strain judicial competence," and whether the provision "impose[s] a binding obligation of the States"--that Gonzaga simply amended the first part (by heightening the requirement, to an "unambiguously conferred right"), and that the plaintiffs satisfied the test here.

Daily Read: Gorsuch To Give Speech at Trump Hotel Venue

As reported, the newest Supreme Court Justice, Neil Gorsuch, appointed by President Trump is scheduled to deliver a talk at the “Defending Freedom Luncheon,” hosted by the nonprofit Fund for American Studies, an invitation-only event to be held at the Trump Hotel in Washington, D.C.

It's not the conservative Fund for American Studies sponsorship that is attracting attention, but the venue of the private Trump Hotel. As the emoluments clauses challenges to Trump's alleged intermingling of his office and his personal profits proceed, it is possible that the issue will reach the United States Supreme Court, including facts about functions at the Trump Hotel in D.C.

As we've previously discussed, the Judicial Code of Conduct does not apply to Supreme Court Justices.  And even if it did, it is unclear that the appearance at the hotel - - - without a link to a specific pending case before the Court at this time  - - - would be encompassed or if the only remedy would be subsequent recusal from that case.

Nevertheless, given the controversy surrounding the nomination of Gorusch, this may not be the best look for a Justice intending to eschew continuing controversy.

[caricature of Justice Neil Gorsuch by Donkey Hotey via]

 

 

Ninth Circuit Upholds San Francisco Sign Ordinance Against First Amendment Challenge

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

 In its opinion in Contest Promotions v. City and County of San Francisco, a panel of the Ninth Circuit upheld San Francisco's sign ordinances prohibiting off-site advertising (billboards) with an exception for noncommercial notices.

The plaintiff company is an advertiser that rents the right to post signs on the premises of third-party businesses advertising "contests in which passing customers can participate by going
inside the business and filling out a form."  It challenged two components of the Planning Code ordinances passed in 2002:

• a general prohibition of new billboards and other off-site signs with a general permission for business on-site signs advertising that business;
• an exemption for noncommercial signs.

Judge Susan Graber, writing for the unanimous panel and affirming the trial judge's dismissal of the complaint, rejected the plaintiff's primary argument that the First Amendment intermediate scrutiny standard of Central Hudson & Electric Corporation v. Public Service Commission of New York (1980) was elevated by IMS v. Sorrell (2011) and Reed v. Town of Gilbert (2015).  It relied on the June en banc Ninth Circuit in Retail Digital Network v. Prieto, rejecting a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products, in which the challengers had also argued that Sorrell required heightened scrutiny. It also relied on a 2016 panel opinion in Lone Star Security and Video v. City of Los Angeles, in which the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing Reed v. Town of Gilbert. 

As in RDN v. Prieto and Lone Star Security and Video, once the Central Hudson standard was deemed appropriate, its four-step application was fairly straightforward.  That the plaintiff's advertisements were legal and nonmisleading was not in dispute. Second, the court easily found that "a locality’s asserted interests in safety and aesthetics" met the requirement of substantial interests. The third step  and fourth steps, both relating to the "fit" and often, as the court acknowledges, not "entirely discrete," were also satisfied. The court found that the ordinance directly advanced the government interests and there was no "constitutional infirmity in the ordinance’s failure to regulate every sign that it might have reached, had Defendant (or its voters) instead enacted another law that exhausted the full
breadth of its legal authority."  The court rejected the plaintiff's analogy to City of Cincinnati v. Discovery Network, Inc. (1993) because in Discovery Network the newsracks that were banned were a small portion of newsracks (thus not actually serving the purpose of the ordinance) and that there was no requirement to ban all advertising, including noncommercial to achieve the purpose.  In essence, the court found that San Francisco's ordinances were not underinclusive.

While the case seems relatively straightforward, it is yet another indication that the appellate courts are not interpreting Sorrell and Reed as expansively as they might and Central Hudson remains entrenched.

[image: "Ice Sitting Contest," N Y Public Library Collection, via]

 

Torture Case Against Psychologists Settles

The New York Times reported today that the torture case against two psychologists who designed the CIA torture program settled. We last posted here, when the district court ruled against the defendants' motion to dismiss and rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.

California Sues Sessions Over Sanctuary Cities Policy

Steven D. Schwinn, John Marshall Law School

The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.

California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).

Three Judge Court Finds Fault with Texas Redistricting Plan

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

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

• In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
• In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
• In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
• In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
• In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
• In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

 

UPDATE: Stay

On Remand, Ninth Circuit Says Spokeo Plaintiff Has Standing

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled today that Thomas Robins suffered a sufficiently concrete injury to establish Article III standing in his case against the consumer data website Spokeo, Inc. The case was on remand from the Supreme Court.

The case arose when Robins learned that Spokeo published false information about his age, marital status, wealth, educational level, and profession, and published a photo of a different person. Robins claimed that the false report affected his employment prospects. He sued under the Fair Credit Reporting Act, which authorizes consumers affected by a violation to sue, even if the consumer cannot show that the violation caused actual damages.

The Ninth Circuit previously ruled that Robins had standing, because he alleged that Spokeo violated his statutory rights under the FCRA. But the Supreme Court vacated that ruling, saying that even if Robins had statutory standing under the FCRA, he still had to show Article III standing--in particular, a concrete harm--and that the Ninth Circuit didn't engage with that question. The Court remanded the case for a determination.

The Ninth Circuit said today that Robins demonstrated a concrete harm and therefore satisfied Article III standing. The court drew on language in Spokeo that said that sometimes Congress enacts procedural rights to guard against a "risk of real harm, the violation of which may be sufficient in some circumstances to constitute injury in fact" under Article III. Congress may do this, the court explained, "[i]n some areas . . . where injuries are difficult to prove or measure." "Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm." According to the court, the test is when the congressionally conferred procedural right protects a plaintiff's concrete interests and where the procedural violation presents "a risk of real harm" to that concrete interest.

The Ninth Circuit ruled that Robins met that test. The court said that "Congress established the FCRA provisions at issue to protect consumers' concrete interests." Moreover, even though trivial (but technical) violations of the FCRA won't give rise to concrete harm under Article III (and therefore the plaintiff would need to allege more), in this case

it is clear to us that Robins's allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court's example of an incorrect zip code. Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is. It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins's life could be deemed a real harm.

The court rejected Spokeo's argument that Robins's harm was too speculative, because Robins met the court's risk-of-real-harm standard.

The ruling means that Robins's case against Spokeo can proceed to the merits.

Seventh Circuit Says No Free Speech Retaliation Claim for Policymakers

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled that state workers' compensation arbitrators did not have a free-speech claim against the governor for not re-appointing them in retaliation for their earlier lawsuit against the governor for changes to the worker-compensation system.

The case is notable, because the court applied restrictive circuit law on policymakers' First Amendment retaliation claim (and not the more general, and more speech-friendly, Pickering test for most public employees), and because the court applied this law to a claim for retaliation for a lawsuit (and not a more familiar form of public speech, like an op-ed).

The case arose when Illinois changed its workers' compensation law. Among other changes, the state changed the appointment schedule for workers' compensation arbitrators. In particular, it terminated all arbitrators' six-year appointments effective July 1, 2011, and provided for executive appointments (with advice and consent of the state senate) for staggered three-year terms for future arbitrators.

Some of the arbitrators sued, arguing that the change violated due process. While that suit was pending, the governor appointed and reappointed arbitrators, but not the plaintiffs in the due-process suit. So they sued again, this time for retaliation for exercising their First Amendment rights in bringing the original due-process suit. They claimed that the governor declined to reappointment them only because they filed that earlier suit, which, they claimed, was "important to, in a public forum, hash out concerns . . . regarding the workers' compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution."

The district court tossed the suit, concluding, under Pickering, that the earlier due-process suit was not speech on a matter of public concern.

The Seventh Circuit affirmed, but on a slightly different ground. The Seventh Circuit applied its "policymaker corollary" to Pickering--a circuit rule that derives from Elrod v. Burns and Branti v. Finkel. In those two cases, the Supreme Court said that as a general matter government employers can't fire public employees on the basis of political affiliation. But the Court also recognized an exception for employees who occupy policymaking or confidential positions, thus ensuring that elected officials wouldn't be "undercut by tactics obstructing the implementation of policies . . . presumably sanctioned by the electorate."

The Seventh Circuit's "policymaking corollary" takes the Elrod and Branti exception a step farther, to policymakers' speech:

Instead, under the "policy-maker corollary to the Pickering analysis, the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies."

The court concluded that the arbitrators were "policymakers," because "the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement," and because "the position entails the exercise of a substantial amount of political (as distinct from professional) discretion." It further concluded that the due-process lawsuit amounted to "speech . . . in a manner that is critical of superiors or their stated policies."

The ruling ends the arbitrators' case.

Eighth Circuit Upholds Nebraska Funeral Picketing Statute in First Amendment Challenge

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

 In its opinion in Phelps-Roper v. Ricketts, a panel of the Eighth Circuit, affirming the district judge, rejected First Amendment facial and as-applied challenges to Nebraska's funeral picketing law, §28-1320.01 et seq. 

The Nebraska statute was prompted by the activities of the "Westboro Baptist Church" (WBC) organization, of which Shirley Phelps-Roper is a leader, in picketing military funerals as their opposition to "homosexuality."  Recall that in 2011, the United States Supreme Court held that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion.  Recall also that the constitutionality of ordinances and statutes seeking to regulate funeral protests has been previously challenged by the WBC and Phelps.

Here, the unanimous panel, in an opinion authored by Judge Bobby Shepherd, held that the Nebraska statute survived a facial First Amendment challenge.  The Eighth Circuit en banc had previously upheld the City of Manchester, Missouri's ordinance as a constitutional time, place, and manner restriction, but the Nebraska statute differed because the place restriction extends the distance between the picketers and the funeral from 300 to 500 feet and the time restriction is “from one hour prior to through two hours following the commencement of a funeral,” instead of Manchester’s “during or within one hour before or one hour after the conducting of a funeral.” Nevertheless, the court held that the Nebraska statute, like the Manchester ordinance, "serves a significant government interest, is narrowly tailored, and leaves open ample alternative channels for communication."

The as-applied challenge centered on one Omaha protest in 2011, with Ms. Phelps-Roper claiming that the Omaha police treated her differently than others (viewpoint discrimination), that she was forced well beyond the 500 foot buffer zone, and that the police allowed others to interfere with her message. The Eighth Circuit discussed the evidence for each claim and affirmed the trial judge's findings that there was no constitutional violation.  On the interference claim, the Eighth Circuit discussed the Sixth Circuit en banc decision in Bible Believers v. Wayne County (2015), but found the situation clearly distinguishable and there was no violence at the WBC funeral event.  as the opinion declared,

WBC is not entitled to its own bubble-ensconced pedestal surrounded by chalk lines or yellow tape any more than those opposed to WBC messages are entitled to a heckler’s veto. Law enforcement has a duty to enforce the laws equally without regard to the viewpoints expressed.

The opinion is thorough yet succinct, with little that merits continued litigation.  Perhaps we might be nearing the end of the First Amendment funeral protest saga.