Constitutional Law Prof Blog

D.C. Circuit Upholds Law that Could Ban TikTok

The D.C. Circuit on Friday upheld a federal law that would ban TikTok in the United States unless its Chinese owner, ByteDance, sells the app to a non-Chinese company by January 19, 2025.

The ruling set off a flurry of criticism and widespread concern by TikTok content creators.

The case, TikTok v. Garland, tests the Protecting Americans from Foreign Adversary Controlled Applications Act, signed by President Biden on April 24, 2024. The Act makes it "unlawful for an entity to distribute, maintain, or update" an app controlled by "a foreign adversary." It specifically calls out ByteDance-owned entities, which includes TikTok.

This means that it's unlawful to "distribute, maintain, or update" TikTok, or to provide "internet hosting services to enable the distribution, maintenance, or updating" of it. The prohibition kicks in on January 19.

Importantly, the Act doesn't regulate TikTok itself. Instead, it prohibits third parties from supporting the app in the United States so long as it's owned by a Chinese entity.

But the Act provides for an exemption if ByteDance sells TikTok to a non-Chinese entity.

TikTok sued, arguing that the Act violated the First Amendment. The D.C. Circuit disagreed.

The court first assessed the applicable level of scrutiny. Strict scrutiny would apply if the Act regulated speech based on content; intermediate scrutiny would apply if not. According to the court, "[t]he question whether intermediate or strict scrutiny applies is difficult because the TikTok-specific provisions are facially content neutral, yet the Government justifies the Act in substantial part by reference to a foreign adversary's ability to manipulate content seen by Americans." 

In the end, the court said that it didn't matter, because the Act failed even the more rigid strict scrutiny. The court said that the government had valid compelling interests in protecting national security--"to counter (1) [China's] efforts to collect data of and about persons in the United States, and (2) the risk of [China] covertly manipulating content on TikTok." The court then explained why the Act was narrowly tailored to achieve these interests:

Here the relevant provisions of the Act apply narrowly because they are limited to foreign adversary control of a substantial medium of communication and include a divestiture exemption. By structuring the Act in this way, the Congress addressed precisely the harms it seeks to counter and only those harms. Moreover, as already explained, the Act's emphasis on ownership and control follows a longstanding approach to counter foreign government control of communication media in the United States.

Ninth Circuit Says Police Chief's Private Texts Aren't Protected Speech

The Ninth Circuit today rejected a First Amendment retaliation claim by a police chief who was forced to resign after sending private texts with a forwarded racist image. The court examined the language, form, and context of the texts and concluded that they did not constitute a matter of public concern under Pickering v. Board of Education.

The case, Adams v. County of Sacramento, arose when Kate Adams, who worked in the Sacramento County Sheriff's Office, sent private texts to colleagues that included forwarded racist pics. (Adams's texts seem to suggest that she disapproved of the forwarded pics.) Years later--after Adams was appointed as City of Rancho Cordova Police Chief and after the texts came out in the course of an EEO investigation involving one of the recipients--a county attorney told her that she'd have to resign or face an investigation that would fuel a "media circus" over the texts. Adams resigned, then sued, arguing that her forced resignation violated the First Amendment, among other things.

The Ninth Circuit ruled that Adams's speech wasn't protected public-employee speech under Pickering, and that she therefore had no First Amendment claim against her forced resignation. The court looked at the language, form, and context of the texts to concluded that they did not constitute a matter of public concern.

Judge Callahan dissented, arguing that this was an unusual case in that "Adams's speech occurred outside of work, was totally unrelated to her job, and should not have had any impact on her employment," and that "Adams should have the chance to hold the County accountable for its harsh reaction to her speech . . . ."

District Court Rejects Trump Bid to Remove Hush Money Case to Federal Court

Judge Alvin K. Hellerstein (S.D.N.Y.) earlier this week rejected Donald Trump's motion to remove his New York state hush-money case to federal court. Trump filed a notice of appeal last night.

This latest episode arose when Trump filed his second motion to remove last week, arguing that the New York courts were biased against him and that he's immune under Trump v. United States.

The court rejected both arguments. As to bias, the court said that it lacked jurisdiction under the Rooker-Feldman doctrine, which generally bars lower federal courts from reviewing state court decisions. As to immunity, the court wrote, "Nothing in the Supreme Court's opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority."

Trump appealed to the Second Circuit. But unless something weird happens, he'll lose, and his state case will proceed.

As to his state case, sentencing is scheduled for September 18. Trump moved to push it back, however, and also moved to dismiss the case in light of Trump v. United States. Judge Merchan, the state trial judge, said that he'd rule on Trump's immunity motion by September 16. If he denies the motion, as expected, and keeps the sentencing date in place, Trump will be sentenced on September 18. He can then appeal through the state courts and, ultimately, the U.S. Supreme Court, claiming immunity.

Ninth Circuit Upholds Title IX's Exemption for Religious Institutions Against Establishment Clause, Equal Protection Challenges

The Ninth Circuit ruled that Title IX's exemption for religious organizations from its prohibition on sex discrimination did not violate the Establishment Clause or equal protection. The court also dismissed the plaintiffs' Administrative Procedure Act claim for lack of standing.

The case, Hunter v. U.S. Department of Education, arose when LGBTQ+ students alleged that religious schools discriminated against them on the basis of their gender identity, and that Title IX's exemption for religious institutions allowed that discrimination in violation of the Establishment Clause and equal protection.

The Ninth Circuit disagreed. The court applied the history-and-tradition test for the Establishment Clause from Kennedy v. Bremerton School District and ruled that there's a long history of accommodating religion, even if that history doesn't include accommodations from government benefit programs exactly like Title IX:

[These cases] evidence a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have "withstood the critical scrutiny of time and political change." And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.

As to the equal protection claim, the court said that Title IX's exemption meets intermediate scrutiny, and therefore doesn't violate equal protection:

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion. As the Department states, the "statutory limitations on its application ensure a substantial fit between [ends and] means." It only exempts educational institutions (a) controlled by religious institutions and (b) only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organizations. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution's exercise of religion. Thus, the exemption substantially relates to a "fundamentally important" government interest.

SCOTUS Says Docs, Orgs Lack Standing to Challenge Mifepristone

The Supreme Court ruled today in FDA v. Alliance for Hippocratic Medicine that doctors and organizations lack standing to challenge FDA's relaxation of regulations on the use of Mifeprex, the brand-name for mifepristone--the second of a two-drug regime to end pregnancies. The ruling means that mifepristone can stay on the market, along with the FDA's actions that make it more easily accessible.

FDA originally approved Mifeprex in 2000, with certain restrictions on its use. FDA relaxed those restrictions in 2016 and again in 2021--allowing the drug's use up to 10 weeks of pregnancy, allowing healthcare providers other than doctors to prescribe it, requiring just one in-person visit, and, in 2021, dropping the in-person visit requirement entirely.

A group of pro-life doctors and organizations sued FDA, arguing that the Agency improperly approved the drug and relaxed the standards for its use. As their basis for standing, the doctors claimed that FDA's actions would cause patients to suffer harms from using the drug, and that the doctors would have to treat them. The organizations said that they had to divert resources to provide their members with safety information about the drug.

The Court ruled today that those plaintiffs lacked standing. The Court said that the doctors lacked standing on the groud that FDA's actions caused conscience injuries to them. The Court noted that doctors could avoid "conscience injuries" by declining "to perform or assist" an abortion under federal conscience laws. It wrote that the doctors lacked standing on the ground that the doctors would have to divert their time and efforts with other patients in order to serve patients who suffered harm from mifepristone, because the causal link between FDA's actions and this "harm" was too attenuated. The court said that the organizations lacked standing in their own right on the ground that they had to divert resources, because "an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action."

The ruling was unanimous. Justice Thomas wrote a concurrence, arguing that the Court should "explain just how the Constitution permits associational standing" at all, but in a different, appropriate case.

SCOTUS Says Takings Plaintiff Must Proceed Under State Law

The Supreme Court ruled today that property owners should pursue their claims under the Takings Clause through a cause of action available under state law. The Court declined to say whether the Takings Clause contains its own cause of action (whether it's "self-executing") in the absence of any other cause of action that would vindicate the property owner's rights under the Takings Clause. But when a state-law cause of action exists to protect Takings Clause rights, a plaintiff must use the state law, not the Takings Clause.

The case, DeVillier v. Texas, arose out the state's efforts to use part of U.S. Interstate I-10 as a flood evacuation route. The state erected a 3-foot barrier on the highway that kept the south side open during heavy rains, but flooding the north side, including plaintiffs' lands. Plaintiffs sued in state court, arguing that Texas effected a taking and seeking just compensation under the Texas Constitution and the Fifth Amendment's Takings Clause. Texas removed the case to federal court and moved to dismiss the Fifth Amendment claim, arguing that the plaintiffs had no cause of action under the Takings Clause.

A unanimous Supreme Court declined to answer that question. Instead, the Court ruled that the plaintiffs had to proceed under Texas state law to enforce their Takings Clause claim for just compensation. In other words, the Court said that when an alternative cause of action can protect the plaintiffs' Takings Clause rights, plaintiffs must use the alternative cause of action.

The Court said that because Texas provided a cause of action, "[i]t would be imprudent to decide" whether the Takings Clause contains its own cause of action.

The ruling means that the plaintiffs can go back to state court and seek just compensation under state law.

Sixth Circuit Says Certain Religious Objectors Have Standing to Challenge Vaccine Mandate

The Sixth Circuit ruled that two religious objectors to a Cleveland, Ohio, hospital's COVID-19 vaccine mandate had standing to sue the hospital for a violation of Title VII, while dozens of other objectors didn't. The difference turned on whether each objector actually resigned, and, if so, whether each objector's resignation was a "constructive discharge," which, in turn, depended on when each resigned.

The case, Savel v. MetroHealth System, tested the hospital's COVID-19 vaccine mandate for employees. The hospital accepted applications for religious exemptions, then categorically denied all religious exemptions, telling objectors that they had 45 days to get a vaccine or be fired. But nine days short of the vaccine deadline, the hospital reversed course and granted all requests for religious exemptions.

Employees sued, arguing that the mandate violated Title VII. The district court dismissed the case for lack of standing or, in the alternative, failure to state a claim.

The Sixth Circuit agreed that most of the plaintiffs lacked standing. The court first noted that most of the plaintiffs were still employed by the hospital. It said that those plaintiffs' alleged injuries (severe mental anguish and the looming threat of losing their job if the hospital were to reinstate the mandate) were "too conclusory" and "contingent on future events that may never come to pass." Of the remaining plaintiffs, the court noted that most of them resigned after submitting exemption requests, but before the hospital denied them, and therefore failed to "support a theory of constructive discharge."

But the court said that two plaintiffs had standing. These two only resigned after the hospital denied their requests for exemptions, but before the 45-day deadline for getting a vaccine. The court said that these resignations amounted to constructive discharges, because "the forty-five day window was not an uncertain process that may or may not end in discharge." To the contrary, the "facts plausibly allege that [the hospital] communicated to Plaintiffs 1 and 2 that they would be terminated after forty-five days if they refused to be vaccinated on religious grounds."

At the same time, though, the court noted that these plaintiffs "may lack standing at a latter phase of this litigation based on additional evidence about the certainty of termination."

The ruling sends the case back to the district court for further proceedings on these two plaintiffs' claims.

Sixth Circuit Rejects Medical Resident's Due Process Claim

The Sixth Circuit rejected a procedural due process claim by a medical resident at a public medical school after the school dismissed the resident for unprofessional behavior. Consistent with other courts that have considered the issue, the court ruled that a medical resident was more like a student than an employee, and therefore entitled to lesser procedural protections.

The case, Mares v. Miami Valley Hospital, arose out of complaints against the plaintiff, a medical resident at Wright State University's Boonshoft School of Medicine and Miami Valley Hospital, for unprofessional behavior. After a series of interventions, probation, and a committee vote to dismiss the plaintiff, a review panel recommended that the plaintiff remain on probation through graduation, but that any additional violations of WSU's academic and professional standards would result in immediate termination from the program.

The dean and president of Miami Valley rejected the recommendation, however, and affirmed the earlier committee decision to dismiss the plaintiff. WSU's provost affirmed. The plaintiff sued, arguing that WSU violated procedural due process.

The Sixth Circuit disagreed. The court first ruled that the plaintiff, as a resident, was more like a student than an employee, and that she was therefore entitled only to the "minimal" procedural due process protections of a student dismissed for academic reasons. (The court based this conclusion on the nature of the program and program materials. It also noted that this is consistent with every other court that considered the question.) The court then wrote that she received "more than enough process":

It is undisputed that [the plaintiff] accumulated several complaints about her unprofessional behavior from medical students, colleagues, and WSU faculty members throughout her residency. In less than two years at WSU, [the plaintiff] had been formally warned about her performance, suspended for several days, and placed on probation. Despite these formal warnings, [the plaintiff] continued with her problematic conduct and, after deliberation, WSU's Clinical Competency Committee recommended dismissing her from its residency program. In doing so, the Committee set in motion WSU's extensive internal procedures . . . which ensure that residents facing an adverse action are provided with quintessential due process.

The court also rejected the plaintiff's substantive due process claim, ruling that she had no substantive due process right in her residency (again, an educational program), but in any event that the school didn't act arbitrarily and capriciously or in a way that would shock the conscience.

D.C. District Says Voters Lack Standing to Challenge Noncitizen Voting

Judge Amy Berman Jackson (D.D.C.) ruled today that a group of voters in D.C. lacked standing to challenge a D.C. law that allows noncitizens to vote in local, but not national, elections. The court said that plaintiffs lacked a particularized injury:

In sum, plaintiffs have not alleged that they have personally been subjected to any sort of disadvantage as individual voters by virtue of the fact that noncitizens are permitted to vote, too. They may object as a matter of policy to the fact that immigrants get to vote at all, but their votes will not receive less weight or be treated differently than noncitizens' votes; they are not losing representation in any legislative body; nor have citizens as a group been discriminatorily gerrymandered, "packed," or "cracked" to divide, concentrate, or devalue their votes. At bottom, they are simply raising a generalized grievance which is insufficient to confer standing.

Federal law prohibits noncitizens from voting in federal elections. According to Ballotpedia, as of March 2024, seven states prohibit noncitizens from voting in state and local elections (Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio), and D.C. and municipalities in three states (California, Maryland, and Vermont) allow noncitizens to vote.

Fifth Circuit Halts S.B. 4, for now

The Fifth Circuit lifted its earlier administrative stay, allowing Texas's S.B. 4 to go into effect, at least for now. The move came shortly after the Supreme Court allowed the administrative stay to remain in place, thus allowing Texas to enforce S.B. 4, at least temporarily.

The back and forth is all preliminary. The Fifth Circuit will hear oral arguments tomorrow, March 20, on the state's motion to stay the district court injunction against S.B. 4 pending appeal. And even that's technically preliminary, even though the ruling on that motion will likely telegraph the court's ultimate ruling on the merits of S.B. 4.

Recall the district court enjoined enforcement of S.B. 4 and declined to stay the ruling pending appeal. The state moved the Fifth Circuit for a stay pending appeal (that's the motion that'll be heard tomorrow), but in the meantime issued an administrative stay. The Supreme Court yesterday left the administrative stay in place. Today's order by the Fifth Circuit lifts the administrative stay. Oral argument on the state's original motion for a stay pending appeal is tomorrow. Oral argument on the merits is April 3.

High Court Lets Texas Run its own Immigration Policy, for now

The Supreme Court today allowed Texas's S.B. 4, the state's effort to regulate immigration, to go into effect, at least temporarily. The ruling came with no explanation from the Court, though several justices wrote separately (as below).

The cases, United States v. Texas and Las Americas Immigrant Advocacy Center v. McCraw, test Texas's S.B. 4. That provision makes it a state crime for unauthorized noncitizens to enter or reside in Texas, and gives state courts the authority to remove unauthorized noncitizens without regard to federal immigration proceedings.

In short, S.B. 4 pretty plainly runs up against Arizona v. United States and federal supremacy over immigration enforcement.

And that's exactly what the district court said. The district court halted enforcement of the measure and declined to stay its injunction pending appeal. This meant that Texas couldn't enforce S.B. 4 as it pursued its appeal to the Fifth Circuit.

Texas asked the Fifth Circuit for a stay of the district court's order pending appeal. That would've allowed the state to enforce S.B. 4 during its appeal to the Fifth Circuit.

The Fifth Circuit deferred consideration of Texas's motion, however, and instead issued a "temporary administrative stay." An administrative stay is usually just a docket-management device that allows a court to pause an action for a short time while it considers a motion for a stay pending appeal (which requires legal analysis, including an analysis on the merits, and therefore a little more time). An administrative stay requires no legal analysis.

Justice Alito, as circuit justice, previously stayed the lower court's administrative stay, thus preventing Texas from enforcing S.B. 4. But the Court today denied the government's motion to vacate the Fifth Circuit's administrative stay.

This means that Texas can enforce S.B. 4 as long as the Fifth Circuit's administrative stay remains in effect. We don't know how long that could be. As Justice Sotomayor reminds us, "[t]he Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months." (Remember: administrative stays are supposed to be short-term docket-management devices.) The Fifth Circuit expedited the appeal and deferred Texas's motion for a stay pending appeal to the merits panel. But given the Court's ruling today, the Fifth Circuit, which through its administrative stay already telegraphed its thoughts on S.B. 4, has no reason to move quickly.

In other words, it looks like the Fifth Circuit could be using an administrative stay as an end-run around the legal analysis required for a stay pending appeal, but yet to achieve the same result as a stay pending appeal. And it looks like the Supreme Court fell for the gambit. The upshot is that Texas can enforce a pretty plainly unconstitutional law--with significant implications for immigration enforcement, federalism, and international relations--as long as the Fifth Circuit wants to drag its feet on a ruling on the merits (either in a ruling on Texas's motion for a stay pending appeal, or on the appeal itself).

Justice Barrett, joined by Justice Kavanaugh, concurred, but warned that "[t]he time may come, in this case or another, when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly." "But at this junction in this case, that conclusion would be premature."

Justice Sotomayor, joined by Justice Jackson, dissented, detailing the many legal and practical problems with the Court's ruling. "The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional."

Justice Kagan separately dissented, arguing that the Court should vacate the stay under the stay-pending-appeal standard, whether the Court calls the Fifth Circuit's stay an administrative stay or a stay pending appeal. That's because on the merits, "the subject of immigration generally, and the entry and removal of noncitizens particularly, are matters long thought the special province of the Federal Government."

 

Court Says No-Fly-List Case is Not Moot

The Supreme Court ruled today that a plaintiff's challenge to his inclusion on the N0-Fly List was not moot even after the government removed him from the List, because the government didn't adequately establish that it wouldn't re-list him in the future. The ruling sends the case back to the lower court for further proceedings . . . and for the government to try again to show that it won't relist him.

The case, FBI v. Fikre, arose when Yonas Fikre, a U.S. citizen on business in Sudan, learned from FBI agents that he was on the No-Fly List and couldn't return to the U.S. The agents offered to take him off the List if he agreed to serve as an informant and report on members of his religious community. Fikre refused.

Fikre later traveled to the UAE, where authorities arrested, imprisoned, and tortured him, and questioned him about his Portland, Oregon, mosque. Authorities held Fikre for 106 days, then flew him to Sweden, where he remained until February 2015, when the Swedish government returned him to Portland.

While in Sweden, Fikre sued, arguing that the government violated due process, among other things. He sought a declaratory judgment and an injunction prohibiting the government from keeping him on the No-Fly List.

In May 2016, the government notified Fikre that it removed him from the List, but didn't provide any further explanation. The district court granted the government's motion to dismiss the case as moot, but the Ninth Circuit reversed. On remand, the government entered a declaration stating that Fikre "will not be placed on the No Fly List in the future based on the currently available information." The district court again dismissed the case, but the Ninth Circuit again reversed.

The Court agreed with the Ninth Circuit that the case isn't moot. The Court emphasized that under the voluntary-cessation exception to mootness, the defendant bears the "formidable burden" * * * "'to establish' that it cannot reasonably be expected to resume its challenged conduct--whether the suit happens to be new or long lingering, and whether the challenged conduct might recur immediately or later at some more propitious moment." The Court noted that "a party's repudiation of its past conduct may sometimes help demonstrate that conduct is unlikely to recur." But "[w]hat matter is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct. It is on that consideration alone--the potential for a defendant's future conduct--that we rest our judgment." The Court held that the government declaration simply didn't meet these standards.

That's not to say that the government can't meet the standards on remand, and the ruling gives the government another shot, on mootness or any other aspect of Article III justiciability (or on some national-security ground, and ultimately the merits, of course).

Justice Alito concurred, joined by Justice Kavanaugh, "to clarify my understanding that our decision does not suggest that the Government must disclose classified information to Mr. Fikre, his attorney, or a court to show that this case is moot."

 

Second Circuit Says No Pretext Limit on Government Taking Power

The Second Circuit rejected a claim by property owners that a local government violated the Takings Clause by taking private property for concededly public, but pretextual, reasons. The ruling means that the Town of Southold, New York, can take private property to build a park, even if the Town's true motive was to prevent the owners from building a hardware store.

The case, Brinkmann v. Town of Southold, arose when the Brinkmanns bought land in Southold to expand their chain of hardware stores. The Town sought several times to thwart the effort, and ultimately acquired the land to build a public park. The Brinkmanns sued, arguing that the Town's stated purpose for acquiring the land was pretextual, and that the Town really only sought their property to prevent them from building a new hardware store. The Brinkmanns argued that this violated the Takings Clause.

The Second Circuit rejected the argument. The court ruled that the Takings Clause doesn't contain a pretext limit on the government's power of eminent domain. The court explained:

A "pretext" limitation that invalidates a taking for a public park would undo this "longstanding policy of deference to legislative judgments in this field," by inviting courts "in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motivates of the various government officials who approved it." Such motives are by nature fragmented--and rarely, if ever, pure.

Judge Menashi dissented, arguing that "the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause. A taking of property must be 'for public use,' or at least for 'a public purpose'--and thwarting the rightful owner's lawful use of his property is not a public purpose."

Sixth Circuit Says Plaintiff Has Standing for Preenforcement Challenge to State Ballot Self Ban

The Sixth Circuit ruled that a plaintiff had standing to lodge a pre-enforcement challenge to Ohio's criminal ban on ballot selfies. The ruling sends the case back to the district court for proceedings on the merits--whether the ban violates the First Amendment.

The court ruled that a plaintiff who took a ballot selfie and wished to publicize it, but didn't, had standing to challenge Ohio's law, because, among other things, she demonstrated a "credible threat of enforcement." The court explained:

On this record, an individual deciding whether to display a photograph of his or her marked ballot must do so in light of the following: a law that punishes revealing one's marked ballot with imprisonment, repeated statements by Defendants that posting photographs of a marked ballot is illegal, no evidence that Defendants have publicly disavowed these statements, and at least one past instance in which the Board has ordered an individual to remove a ballot from display. Under these circumstances, [the plaintiff] demonstrates more than a "subjective apprehension and a personal (self-imposed) unwillingness" to post a ballot photograph. Therefore, she has alleged an injury in fact at the summary judgment stage.

Court Defines When Public Official's Social Media Violates Free Speech

The Supreme Court issued a pair of rulings this week that set the test for when the First Amendment prohibits a public official from restricting access to their social media. The rulings send the cases back to the lower courts for application of the Court's new test.

Both cases arose when local public officials blocked users from their social media. In both cases, the officials used social media for both public posts and personal posts. The blocked users sued, arguing that the officials violated the First Amendment. In response, the officials argued that their use of social media did not constitute state action, and so neither Section 1983 nor the First Amendment applied.

The Court ruled that the First Amendment applied to public officials' mixed-use social media when (1) the public official had actual authority to speak on behalf of the government on a particular matter and (2) the public official purported to exercise that authority in the relevant posts. As to (1), the Court said that "[t]he alleged censorship must be connected to speech on a matter within [the official's] bailiwick." It also said that "[d]etermining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage."

In sum, a defendant . . . must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.

As to (2), the Court said that "the public employee [must] use his speech in furtherance of his official responsibilities" and that this can sometimes (as with speech "on an ambiguous page") require "a fact-specific undertaking in which the post's content and function are the most important considerations." The Court also noted that the technology mattered. For example, "[b]ecause blocking operated on a page-wide basis, a court would have to consider whether [an official who blocked users] had engaged in state action with respect to any post on which [the user] wished to comment." "If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designed personal account therefore exposes himself to greater potential liability."

No Takings Claim for Utilities Displaced by Government Streetcar Project

The Ninth Circuit ruled that two investor-owned utilities had no takings claim when a local transit authority asked them to move their equipment to make way for a streetcar line. The ruling means that the utilities will have to pay the costs of the relocations, unless the government (in its graces) voluntarily pays.

The case, Southern California Edison v. Orange County Transportation Authority, arose when OCTA asked Southern California Edison and Southern California Gas Company, two investor-owned utilities, to move pipes, transmission lines, and other equipment so that OCTA could construct a streetcar line. The utilities estimated that the relocations would cost about $15 million (total, for both utilities together). They sued, arguing that OCTA's ask constituted a taking of private property requiring just compensation.

The Ninth Circuit rejected the claim. The court said that under California law the utilities had no property interest. That's because under California Supreme Court precedent, "it has generally been held that a public utility accepts franchise rights in public streets subject to an implied obligation to relocate its facilities therein at its own expense when necessary to make way for a proper governmental use of the street." The court rejected the utilities' claim that the streetcar project was proprietary, not "governmental":

OCTA easily satisfies [the governmental-project] standard. In building the streetcar line--that is, in making use of the public streets of Orange County, OCTA exercised its state-delegated authority to meet the "demand for an efficient public transportation system in the southern California region," "reduce the levels of automobile-related air pollution," and "offer adequate public transportation to all citizens, including those immobilized by poverty, age, physical handicaps, or other reasons." In other words, OCTA invoked the public right to use the streets for public benefit.

The court also rejected the utilities' claim that rail lines are per se proprietary activities, holding that case law didn't support that conclusion.

Seventh Circuit Says Parent Group Lacks Standing to Challenge School Guidelines for LGBTQ Students

The Seventh Circuit ruled last week that a parent organization lacked standing to challenge a school district's "guidelines" for schools to follow "to address the needs of transgender, nonbinary, and/or gender non-conforming students." The court said that the plaintiff organization simply hadn't alleged that its members were harmed.

The case, Parents Protecting Our Children, UA v. Eau Claire Area School District, arose when Parents Protecting lodged a facial challenge to the District's brand-new policy to "foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression." The District issued "Administrative Guidance" for schools to follow and a "Gender Support Plan," both of which recognize that there are circumstances where "parents are not involved." Still, by its terms, the Plan is a student record, and a parent can gain access upon request.

Parents Protecting argued that the Guidance and Plan violated its members' rights to due process and free exercise. But their pre-enforcement, facial challenge failed to identify a particular harm to members.

As a result, the Seventh Circuit said that the group lacked standing, and dismissed the case.

The ruling contrasts with a ruling just today from the Fifth Circuit, where the court held that a parent had standing to challenge federal law that prohibited federal contraception grant recipients from informing parents of a minor that the minor sought contraception. The parent in that case also didn't allege that the policy resulted in actual services in violation of their rights, yet the Fifth Circuit nevertheless said that the parent had standing.

Texas Law Requiring Parental Notice and Consent for Contraception Not Preempted by Title X

The Fifth Circuit ruled today that Title X does not preempt a Texas law that requires parental notice and consent when a child tries to access contraceptives.

The ruling leaves the Texas law on the books, but also leaves open the question whether a federal regulation is valid and may preempt it.

The case, Deanda v. Becerra, arose when a father claimed that Texas law gave him the right to consent before his minor daughters obtained contraceptives, and that the Secretary unlawfully administered Title X by funding grantees who provide contraception to minors without parental notification and consent. The government argued that Title X preempted Texas law.

The Fifth Circuit disagreed. The court noted that Title X says, "To the extent practical, entities which receive grants or contracts [to provide contraception] shall encourage family participation in projects assisted under this subsection." The court said that there's "no real conflict" between that provision and Texas law:

The federal text plainly conveys the overarching goal of encouraging family participation in adolescents' family planning decisions. The Texas law pursues the same goal through more specific means: requiring parental consent before minors obtain contraceptives. Those objectives reinforce each other. As Deanda argues, Title X establishes a "floor" for grantees' participation (encouraging family participation), and Texas law establishes a specific means of achieving that goal (obtaining parents' consent). So, far from undermining Title X's purposes, Texas law concretely furthers them.

But there's a hitch. After Deanda sued, HHS implemented a regulation that prohibits Title X projects from "requir[ing] consent of parents or guardians for the provision of services to minors." (The regulation codifies long-standing HHS practice.) The regulation, if valid, would independently preempt Texas law. The district court vacated the reg, but the Fifth Circuit reversed that portion of the ruling, noting that Deanda never challenged the reg, and the district court never assessed it under the APA. (That's not surprising, because HHS issued the reg after Deanda sued.)

The upshot: the court says that Title X does not preempt Texas law, but leaves opens the question whether the HHS reg does. Both the Texas law and the HHS reg stay on the books, awaiting the next challenge.

District Court Rules Minority Business Development Agency's Racial Presumptions Unconstitutional

Judge Mark Pittman (N.D. Tex.) ruled today that the MBDA's racial presumptions violate equal protection and permanently enjoined the Agency from using them. (The court previously entered a preliminary injunction.)

The case, Nuziard v. MBDA, tests the MBDA's presumption that members of certain identified racial groups qualify as "socially or economically disadvantaged" under the MBDA Act. Importantly, the Act doesn't say that members of other groups don't qualify for MBDA services and assistance; but it says that only members of the identified racial groups presumptively do.

The court ruled that this violates equal protection. Applying strict scrutiny, the court first acknowledged that the government had a compelling interest in remedying past discrimination in government contracting:

In sum, the record shows several examples of historic discrimination in which the government participated. Taken alone, that wouldn't be enough. The record also shows statistical analyses and disparity studies that raise an inference of government-linked discrimination. Taken alone, that wouldn't be enough, either. But combining the concrete examples with the robust empirics, the Court finds remedying past discrimination in government contracting is a compelling governmental interest.

But the court went on to rule that the presumptions weren't narrowly tailored to meet that interest. The court said that the racial categories are imprecise, that they're based on stereotypes, that there's no endpoint to their use, and that the MBDA has other ways to remedy the government's past discrimination.

Court Says Free Speech Trumps Antidiscrimination for Website Designer

The Supreme Court ruled on Friday that Colorado's anti-discrimination law violated the free-speech rights of a website designer who does not wish to create custom wedding websites for same-sex couples.

The ruling leaves the anti-discrimination law in place, but prohibits enforcement that would compel speech.

The Court didn't define "speech," however, at least not with any precision. The case therefore promises to bring new rounds of litigation as individuals and businesses seek to get out from under anti-discrimination laws--including laws that prohibit discrimination by sexual orientation or, apparently, any other characteristic--by defining their products and services as "speech." In short, we don't know exactly how far this ruling extends--to what kinds of objections based on what kinds of characteristics, and what constitutes "speech."

The ruling, while dealing with free speech (not religion), also follows the Court's trend in its Religion Clause cases of inviting and compelling religion and religious beliefs to play a greater and greater role in public life. That's because the plaintiff in the case, Lorie Smith, who owns 303 Creative, objects to creating custom wedding websites for same-sex couples because of her religious beliefs. But just to be clear: nothing in the ruling protects only a person or business who objects based only on religion; instead, the ruling prohibits the government from applying anti-discrimination laws in a way that would compel a speaker to communicate in violation of any of their beliefs.

The case, 303 Creative v. Elenis, tested whether Colorado's anti-discrimination law (which prohibits discrimination by public accommodations because of sexual orientation, among other characteristics) impermissibly compelled Smith, who sought to provide custom wedding websites for customers, to create websites for same-sex couples. The Court said yes: the Colorado law compelled Smith to speak against her beliefs in violation of the First Amendment.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson.