Constitutional Law Prof Blog

District Court Says No Standing to Sue U.S. Government for Actions of Israelis

Steven D. Schwinn, John Marshall Law School

Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.

The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.

As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,

Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"

Second Circuit Says NY Can Use Surplus Highway Toll Revenue for Canals

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.

The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.

The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."

Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.

District Court Says Maryland, D.C. Have Standing in Emoluments Case Against Trump

Steven D. Schwinn, John Marshall Law School

Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.

The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.

The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.

The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."

The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.

The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.

But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

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

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via] 

Daily Read: Janet Calvo on DACA and State Professional Licensing

Who needs a professional license? In California, anyone wishing to be an accountant, acupuncturist, cosmetologist, court reporter, bedding salesperson, landscape architect, pharmacist, teacher, real estate agent, pest control operator, or teacher, among many others. Yet the type of immigration status that should be a prerequisite for obtaining a state professional license has not been consistent, at least until California did implement a remedy. And in New York, with a different array of immigration regulations for professional licensing, a different type of remedy was eventually decided upon.

In her article Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests, in Columbia Journal of Race and Law, Professor Janet Calvo analyzes the intersection of Equal Protection doctrine and the Tenth Amendment to argue that states have the constitutional responsibility as well as the constitutional power to remove immigration barriers to state licensing requirements. Distinguishing among categories of immigration status raises equal protection concerns and, as the Second Circuit has held, constitutional violations. Additionally, licensing is a traditional state function which Congress can regulate to some extent but not totally commandeer.

As Calvo argues, California and New York each took a unique path to solving the licensing issue, yet taken together, they offer a map to other states, organizations, and communities seeking to address similar problems.

 

The Census and Citizens: California Challenges Citizenship Question

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

The Commerce Department has announced that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950. Commerce Secretary Wilbur Ross announced the change of policy in a letter which states the change is at the request of the Department of Justice (DOJ) in order to gather data regarding the "citizenship voting age population" (CVAP) to determine violations of section 2 of the Voting Rights Act (VRA).

The first count of the complaint  in California v. Ross alleges a constitutional violation:

34. The Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.

35. By including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution. Because the question will diminish the response rates of non-citizens and their citizen relatives, California, which has the largest immigrant population in the country, will be disproportionately affected by the census undercount. Inclusion of the question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population.

36. This Violation harms the State of California and its residents, given that the State is entitled under the Constitution to a proportionate share of congressional representatives based on its total population.

In support of diminished response rates and the resultant undercount, the complaint includes in its allegations statements from the letter of Secretary Ross (as well as attaching the letter) in which Ross states that he

"carefully considered the argument that the reinstatement of the citizenship question on the decennial census would depress response rate. Because a lower response rate would lead to increased non—response follow—up costs and less accurate responses,this factor was an important consideration in the decision-making process. I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate."

In other words, a lower response rate is acceptable. Although the Ross letter continues that "limited empirical evidence exists about whether adding a citizenship question would decrease response rates materially."  Exhibit 2 to the Complaint is a Memorandum from the Center for Survey Measurement (CSM), a division within the Census Bureau, which raised concerns in September 2017 regarding response rates in current conditions even before the citizenship question would be added.

The Constitution Accountability Center's David Gans has a rather extensive memo posted last week, The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons, which uses originalist and practical rationales to argue that a citizenship question on the census is unconstitutional.

[image: Norman Rockwell, The Census Taker]

 

 

 

Check it Out: Stevens on the Second Amendment

Check out retired Justice John Paul Stevens's piece at the NYT, Repeal the Second Amendment.

Check it Out: Dellinger on Why You Can Indict a President

Check out Walter Dellinger's piece in the NYT, Yes, You Can Indict the President.

Daily Read: Stormy Daniels Sues Trump's Lawyer for Defamation

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

In an amended complaint Stephanie Clifford, better known as Stormy Daniels, has added a count of defamation against President Trump's attorney, Michael Cohen, for defamation.

Recall that Ms. Daniels filed a complaint in state court against Trump and a LLC, Essential Consultants, which mentioned Michael Cohen, seeking a declaratory judgment regarding "hush money" and an agreement not to divulge certain facts. That lawsuit has been removed to federal court.  But the day after Ms. Daniels' widely watched interview on the news show "60 Minutes" aired, Daniels' attorney has filed an amended complaint adding Cohen as a defendant and alleging defamation:

65. On or about February 13, 2018, Mr. Cohen issued a public statement. The entirety of the statement is attached hereto as Exhibit 3. In it, he states in part: “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.” (emphasis added). Mr. Cohen’s statement was made in writing and released by Mr. Cohen to the media with the intent that it be widely disseminated and repeated throughout California and across the country (and the world) on television, on the radio, in newspapers, and on the Internet.

66. It was reasonably understood by those who read or heard the statement that Mr. Cohen’s defamatory statement was about Ms. Clifford.

67. Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is “something [that] isn’t true.” Mr. Cohen’s statement exposed Mr. Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her.

68. Mr. Cohen’s defamatory statement was false.

69. Mr. Cohen made the statement knowing it was false or had serious doubts about the truth of the statements.

70. As a result, Plaintiff Ms. Clifford has suffered damages in an amount to be proven at trial according to proof, including but not limited to, harm to her reputation, emotional harm, exposure to contempt, ridicule, and shame, and physical threats of violence to her person and life.

Unlike any claims against President Trump, there is no question of executive immunity, but the First Amendment contours of defamation will undoubtedly be relevant.  Given that Stormy Daniels is clearly a public figure, much more so than Summer Zervos who is suing President Trump for defamation, Daniels will need to satisfy the actual malice standard. (Recall that a state judge has held that Zervos's lawsuit against Trump is not barred by executive immunity.)

[Image: Stormy Daniels via]

 

 

Check it Out: Trump's Anti-Administrative-State Litmus Test for Judicial Nominees

Check out Jeremy Peters's piece in the New York Times on President Trump's litmus test for judicial nominees--shrinking "the Administrative State." "With surprising frankness, the White House has laid out a plan to fill the courts with judges devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations," in other words, to overturn Chevron deference.

Sixth Circuit Upholds State Single-Subject Ballot-Initiative Rule Against First Amendment Challenge

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.

The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.

The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).

The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.

District Court: No First Amendment Right Against Release of FEC Investigation

 

Steven D. Schwinn, John Marshall Law School

Judge Amy Berman Jackson (D.D.C.) ruled on Friday that donors to a PAC don't have a First Amendment right against public disclosure of their identities as part of the FEC investigation file into their political contributions.

The ruling means that the FEC investigation file, including the contributors' identities, will be released, unless and until the ruling is appealed.

The case, John Doe 1 & John Doe 2 v. FEC, arose when the FEC launched an investigation into a series of transactions that landed Now or Never PAC with a $1.7 million contribution. The FEC's OGC learned that John Doe 2 sent about $1.7 million to Government Integrity; that Government Integrity wired about that amount to American Conservative Union; and that American Conservative Union, in turn, sent that amount on to Now or Never PAC.

The FEC's OGC recommended that the Commission find reason to believe that John Does 1 and 2 violated FECA's prohibition on "mak[ing] a contribution in the name of another person or knowingly permit[ting] his name to be used to effect such a contribution." The FEC rejected the recommendation, however, and sent the case to conciliation. Based on the results of conciliation, the FEC found that there was reason to believe that the plaintiffs, the PACs, and the treasurer of Now or Never violated FECA's prohibitions on making or receiving contributions in another person's name. 

The FEC also advised that it would put the documents related to the case on the public record.

The John Does sued, arguing that this violated their First Amendment rights, among other things.

Judge Jackson disagreed. She noted initially that "plaintiffs do not make any claim that anyone's associational rights are being infringed, and disclosing the identities of plaintiffs here would not involve the disclosure of anyone's internal operations or political strategies." She also noted that the FEC recently revised its disclosure policy and tailored it "to minimize the burdens on constitutional rights while providing for sufficient disclosure to advancing legitimate concerns of deterring future violations and promoting Commission accountability." 

She then wrote that "the constitutional issue has already been decided in the agency's favor." Quoting Citizens United, 

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

Judge Jackson went on to hold that the FEC's disclosure policy is reasonable (under the APA) and consistent with FOIA.

Check it Out: Schmidt on Student Protests, from Lunch Counters to Guns

Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.

Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.

District Court Rejects Suit Against Trump for Violations of the Presidential Records Act

Steven D. Schwinn, John Marshall Law School

Judge Christopher Cooper (D.D.C.) today dismissed a suit against President Trump for violations of the Presidential Records Act. Judge Cooper ruled that the plaintiffs, Citizens for Responsibility and Ethics in Washington and the National Security Archive, didn't have a valid statutory or mandamus claim, and that they failed to state a Take Care Clause claim (if they even had one). The ruling ends the case, unless and until CREW appeals.

The case involves the White House practice of using instant-delete apps to delete text messages that might otherwise be subject to recording-keeping requirements. The White House has not denied the practice. CREW alleged that it violates the PRA, and that the President's use of executive orders (instead of administrative action) to side-step PRA requirements violates the Take Care Clause. But Judge Cooper ruled that CREW didn't have a cause of action, and that it didn't state a Take Care claim.

As to the statutory causes of action, the court declined to say whether under circuit law the PRA denies judicial review, and instead ruled that even if it didn't, CREW failed to state a valid mandamus claim. The court said that the PRA didn't create a "clear and compelling duty" on the part of the President to issue record classification guidelines, and so CREW couldn't get mandamus:

While the Presidential Records Act may obligate the President to take steps to preserve records, it nowhere dictates which steps to take. And while CREW may question the effectiveness of any guidance the President has issued regarding the preservation of his records, the Act nowhere clearly and definitively directs him to issue particular guidelines. Because CREW has not identified a ministerial duty, it has failed to state a valid mandamus claim.

As to the Take Care claim, the court said even if CREW could get declaratory relief against the President directly under the Take Care Clause, CREW's claim wouldn't fall within it:

Even assuming some universe of viable Take Care Clause claims exists, CREW's claim here does not fall within it. CREW does not challenge any of the President's executive orders themselves, nor does it argue that they exceed the President's authority to issue. Nor does CREW offer any reason why an administration could not, in good faith, elect to act through executive order rather than administrative action, even if that decision has incidental effects on the preservation of government records and the public's access to them. And the Court is aware of no authority preventing the President from electing to "faithfully execute" the laws by executive order rather than administrative process (assuming, of course, that the particular executive order at issue does not exceed the President's authority). Put another way, CREW does not dispute that the President has the discretion to make policy by executive order. The Supreme Court has advised that "[h]ow the President chooses to exercise the discretion Congress has granted him is not a matter for [the courts'] review." The Court will not ignore that counsel here.

SCOTUS Hears Oral Arguments on First Amendment Challenge to Regulation of Crisis Pregnancy Centers

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

The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act). 

The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.

The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion."  Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.

Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment).  Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.

The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"? 

Will it be sauce for the goose as well as for the gander? 

The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases. 

[image via]

New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos

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

In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?

Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."

Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:

Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”

A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . .  His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda.  Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .  

 Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.

image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via

 

D.C. District Says No Standing for Groups to Challenge FDA Inaction on Hair Product

Steven D. Schwinn, John Marshall Law School

Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.

The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.

The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."

The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.

While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.

Check it Out: O'Donnell on Simon's Eisenhower v. Warren

Check out Michael O'Donnell's review of James Simon's forthcoming (April) Eisenhower vs. Warren: The Battle for Civil Rights and Liberties, in this month's The Atlantic.

Fourth Circuit Says Students Have Standing to Challenge "Disturbing," "Disorderly Conduct" Laws

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled this week in Kenny v. Wilson that a group of primary and secondary school students had standing to lodge a facial First Amendment challenge against South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law." The ruling says nothing about the merits, however; that's for remand. (Although it's kind of hard to see how these laws aren't unconstitutionally vague.)

The laws are basically what their titles imply. The Disturbing Schools Law makes it unlawful

(1) for any person willfully or unnecessarily (a) to intefere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) or loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or

(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

The Disorderly Conduct Law says:

Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.

Plaintiffs-students lodged facial vagueness challenges to the laws, after they were disciplined for violations. But they sought declaratory and injunctive relief, not damages, so standing became an issue.

The court said that they had standing, for two independent reasons. First, the court said that they had standing under Babbitt v. Farm Workers, because "[t]hey attend school without knowing which of their actions could lead to a criminal conviction," and "there is a credible threat of future enforcement" that's not "imaginary or wholly speculative." Next, the court said they had standing because the plaintiffs alleged an "ongoing injury in fact" based on a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression."

Check it Out: Uzzell on LOC's Release of Madison's Notes, and Why We Should Care (or Not)

Check out Lynn Uzzell's take on the Library of Congress's just-released new digital scans of Madison's Notes, Madison's Notes: At Last, a New and Improved Look, at Law and Liberty.