Constitutional Law Prof Blog

District Court Tosses DNC's Case Against Russia, Trump Campaign for Hacking its Computers, Distributing Stolen Materials

Steven D. Schwinn, John Marshall Law School

Judge John G. Koeltl (S.D.N.Y.) today dismissed the Democratic National Committee's lawsuit against the Russian Federation, the Trump Campaign, and individuals associated with the campaign for hacking into DNC computers in the 2016 presidential election and distributing stolen material through WikiLeaks.

The ruling ends the case, unless and until the DNC appeals.

The DNC brought the case under a variety of federal statutes, including RICO, and state common law trespass and conversion. The DNC alleged that Russia unlawfully hacked DNC computers and distributed stolen material, and that this benefited the Trump campaign, which "welcomed" the help.

The court dismissed the claims against Russia under the Foreign Sovereign Immunities Act. (The court said that exceptions to the FSIA don't apply because not all of Russia's activities occurred within the United States.) It dismissed the claims against the other defendants under the First Amendment. Here's the short version why:

the First Amendment prevents such liability in the same way [under Bartnicki v. Vopper, ed.] it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC.

So what about all the contacts between the defendants: Don't they show that the defendants "participated in wrongdoing"? The court said no: the DNC simply didn't plead sufficient facts to show this. 

The court rejected the DNC's attempt to distinguish or work around Bartnicki, ruling that the case doesn't permit a challenge for stolen trade secrets, or for "after-the-fact" coconspiracy to steal the documents.

The court ruled that there were other reasons to dismiss the case, based on some of the specific causes of action.

 

District Court--Yet Again--Rejects Fed's Approval of State Medicaid Work Requirement

Steven D. Schwinn, John Marshall Law School

Judge James S. Boasberg (D.D.C.) ruled today that the Secretary of Health and Human Services violated the Administrative Procedure Act in approving a state's proposed work requirements for its Medicaid recipients.

The ruling in Philbrick v. Azar comes just months after the court struck HHS's approvals for Arkansas's and Kentucky's proposed work requirements.Those rulings are now on appeal to the D.C. Circuit.

The government didn't change its position or arguments from the earlier cases, suggesting that it's banking on higher courts to rule in its favor and uphold the approvals.

Judge Boasberg ruled here, as in the earlier cases, that HHS didn't sufficiently consider the purpose of the Medicaid program--to provide health care for the financially needy--in granting the approvals for work requirements. The court noted that the requirements mean that Medicaid beneficiaries lose benefits, not gain them, in direct contradiction to the purpose of the program.

Here's the court's summary:

Plaintiffs argue that the Secretary's approval of New Hampshire's plan suffers from the same deficiency [as the Arkansas and Kentucky plans] and thus must meet the same fate. The Court concurs. On their face, these work requirements are more exacting than Kentucky's and Arkansas's, mandating 100 monthly hours--as opposed to 80--of employment or other qualifying activities. They also encompass a larger age range than in Arkansas, which applied the requirements only to persons 19 to 49. Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage. That omission is particularly startling in light of information before the Secretary about the initial effects of Arkansas's markedly similar project--namely, that more than 80% of persons subject to the requirements had reported no compliance for the initial months, and nearly 16,900 people had lost coverage. The agency's rejoinders--that the requirements advance other asserted purposes of Medicaid, such as the health and financial independence of beneficiaries and the fiscal sustainability of the safety net--are identical to those this Court rejected with respect to HHS's 2018 approval of Kentucky's program.

The government will surely appeal this ruling, too, and try to get the D.C. Circuit or, ultimately, the Supreme Court to bite at its arguments.

High Court Allows Border Wall Reprogramming Funding, Construction to Move Forward

Steven D. Schwinn, John Marshall Law School

The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.

This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.

The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress." 

The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.

A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)

The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.

Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.

Fourth Circuit: Non-Disparagement Clause in Police Misconduct Settlement Violates First Amendment

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

In its opinion in Overbey v. Mayor & City Council of Baltimore, the Fourth Circuit held that non-disparagement clauses in settlement of police misconduct claims violates the First Amendment.

Writing for the majority, Judge Henry Floyd, described the non-disparagement clauses that the Baltimore Police Department inserted in 95% of its settlement agreements. Here, Ashley Overbey sued the city for being arrested in her home when she called 911 to report a burglary, resulting in a settlement of $63,000, complete with the usual non-disparagement provision. The Baltimore Sun newspaper reported on the settlement as it went before a city agency for approval, including a negative comment about Overbey from the City Solicitor, and the reporting prompted some anonymous on-line comments, to which Overbey responded online. The City decided that Overbey's online comments violated the non-disparagement clause and thus remitted only half of the settlement amount, retaining $31,500 as "liquidated damages."

The court found that the settlement agreement included a waiver of Overbey's First Amendment rights (rejecting the City's argument that the First Amendment was not implicated by refraining from speaking), and further held that the waiver was "outweighed by a relevant public policy that would be harmed by enforcement." The court rejected the city's arguments, including a fairness argument that the court should enforce Overbey's sale of her speech rights:

Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.

The court thus reversed the district judge's grant of summary judgment to the city. It's opinion clearly held that "the non-disparagement clause in Overbey's settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void."

The court also considered the First Amendment claim of the other plaintiff, Baltimore Brew, a local news website, which the district judge had dismissed for lack of standing. The court held that Brew had standing based on its complaint's allegations regarding the City's pervasive use of non-disparagement clauses in settlements with police brutality claimants as it "impedes the ability of the press generally and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions." The court stressed that its conclusion was based on the allegations in the complaint and that the evidentiary record should be developed by the district judge.

Dissenting, recent appointee to the bench Judge Marvin Quattlebaum stated that since Overbey entered into the settlement agreement voluntarily — a question the majority stated it need not resolve given its conclusion regarding public interest — the courts should enforce it. The defendants, the dissenting judge argued, have an interest in finality, the certainty of their contract, and gave up their "opportunity for vindication by a judge or jury" and are thus entitled to have the non-
disparagement clause enforced.  In a footnote, the dissenting judge found the "hush money" by the majority as "harsh words," suggesting that a better view is that the plaintiff "cannot have her cake and eat it too."

[image: "hush money" circa 1883 via]

 

Fourth Circuit Tosses D.C., Maryland Emoluments Suit Against Trump for Lack of Standing

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.

We last posted here and here.

The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.

The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.

The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:

To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.

Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:

And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.

The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.

Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.

Second Circuit: "RealDonaldTrump" Blocking Users on Twitter Violates First Amendment

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

In its opinion in Knight First Amendment v. Trump, the Second Circuit ruled that the "First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open dialogue because they expressed views with which the official disagrees."  The case arose from challenges to the President, Donald J. Trump, blocking users on Twitter. Recall that United States District Judge for the Southern District of New York, Naomi Reice Buchwald, issued a 75 page opinion based on the parties motions for summary judgment (and stipulated facts) concluding that found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views. A unanimous panel of the Second Circuit affirms that decision.

The Second Circuit opinion, authored by Judge Barrington Parker, first considered the state action threshold. The government attorneys interestingly represented the President to argue that his account is nongovernmental. The court rejected the government attorneys' position that while the @realdonaldtrump Twitter account is not independent of Trump's presidency, that the specific act of blocking should not be considered state action. Further, the Second Circuit rejected the argument that because the person of Donald Trump established the account before becoming President and will retain control after he leaves the presidency, the @realdonaldtrump account must be considered "private" and not subject to the First Amendment: "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative." The court stated:

The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.”

Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.

The court then proceeded to the merits of the First Amendment claim, finding that viewpoint discrimination violates the First Amendment. Interestingly, it is for this proposition and only this one that the court cites the United States Supreme Court's closely divided case from last month, Manhattan Community Access Corp. v. Halleck. The Second Circuit easily finds the account creates a public forum. The Second Circuit noted that the government did not contest the district judge's conclusion that the plaintiffs were engaged in protected speech, but the government argued that the plaintiffs' speech was not burdened by being blocked. While the court stated that the government was correct that the plaintiffs did not have a First Amendment right to have the president listen to them, 

the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.

The court also rejected the government's position that the plaintiffs should employ "workarounds" such as creating new accounts, in large part because the government itself conceded that such workarounds burdened speech.

Finally, the Second Circuit rejected the argument that the Twitter account is government speech and thus not subject to the First Amendment. The court stated that while the president's initial tweets are government speech, the interactive features are decidedly not:

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.

The Second Circuit ends with what might be considered a chastisement:

The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

Con Law Prof Opening: LSU Law

Faculty Recruitment Announcement

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.

LSU is also looking to fill other positions including a director of the Immigration Law Clinic and Assistant Professor of Professional Practice to teach legal analysis and writing.

Applications should include a letter of application, resume, references, and teaching evaluations (if available) to: Melissa T. Lonegrass and Christina M. Sautter, Co-Chairs, Faculty Appointments Committee c/o Pam Hancock (or by email to phancock AT lsu.edu), Paul M. Hebert Law Center, Louisiana State University, 1 East Campus Drive, Baton Rouge, Louisiana 70803-0106