Constitutional Law Prof Blog

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."

Check it Out: Harvard J. L. & Pub. Pol'y on Law and Democracy

Check out the Harvard Journal of Law and Public Policy, Spring 2024, essays on law and democracy:

Jud Campbell, Four Views of the Nature of the Union

Sandy Levinson, Templates of American Democracy for the 21st Century: The Importance of Looking at American State Constitutions

Daniel H. Lowenstein, What Democracy is Not

Ilya Somin, How Federalism Promotes Unity Through Diversity

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."

Did Biden Administration Officials Impermissibly Coerce Social Media to Moderate Content?

The Supreme Court will consider the issue on Monday, March 18. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Two states and five individuals sued the government after social-media platforms removed or downgraded their posts. The plaintiffs claimed that 67 federal entities, officials, and employees coerced or significantly encouraged the platforms to censor their posts, which primarily related to COVID-19 and the 2020 election. In their Statement of the Case, starting at page 2 of their brief, the plaintiffs set out what they call “a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.” Here are some highlights, according to the plaintiffs. (The Fifth Circuit’s opinion contains a similar narrative.)

• On January 23, 2021, in response to an anti-vaccine tweet by Robert F. Kennedy, the White House asked Twitter (now X) to “get moving on the process for having it removed ASAP.” The White House also asked, “And then if we can keep an eye out for tweets that fall in this same genre that would be great.” (The plaintiffs claim that this was part of a larger coordination effort between the Biden Administration’s “transition and campaign teams” and Twitter.)

• Government entities, including the White House in “close cooperation” with the Surgeon General’s Office, asked social-media platforms for reports on their content-moderation policies. Government actors also suggested content-moderation policies to social-media platforms to monitor and restrict misinformation about COVID-19.

• The White House told one platform that “[i]nternally, we have been considering our options on what to do about it.” It sent another platform a list of regulatory proposals for content moderation and said, “spirit of transparency—this is circulating around the [White House] and informing thinking.”

• On May 5, 2021, the White House Press Secretary asked platforms to “stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” On July 16, President Biden said that platforms were “killing people” by not moderating false content. Four days later, the White House Communications Director said that the Administration was considering “whether these companies should be held liable for publishing false information,” including “amending the Communications Decency Act, or Section 230 of the act,” which gives social-media platforms immunity from claims based on third-party content.

• According to the plaintiffs, “[t]he platforms capitulated to virtually all White House demands going forward, and ‘began taking down content and deplatforming users they had not previously targeted.’” Moreover, “platforms responded by treating the CDC as the final authority on what could and could not be posted on their platforms.”

• The FBI and CISA held regular meetings with platforms and pressured them to moderate content, including election content posted by Americans, sometimes under threat of legislation. In 2020, the FBI and CISA urged platforms to moderate “hacked materials,” which the platforms used to “promptly . . . suppress the New York Post’s Hunter Biden laptop story shortly before the 2020 election.”

• In 2020, CISA launched the “Election Integrity Partnership” (later called the “Virality Project”) to facilitate cooperation between the government, research agencies, and social-media platforms on content-moderation policies. The plaintiffs say that this effort “involve[d] extremely tight federal-private collaboration, with dozens of points of contact and cooperation.”

The district court held that the actions of seven groups of defendants transformed social-media platforms’ content-moderation decisions into state action, and that the government actions violated the First Amendment. The court entered a sweeping preliminary injunction, ordering those defendants and hundreds of thousands of employees of defendant agencies not to engage in ten types of speech. The injunction also contained some carve-outs, allowing the government to inform platforms of content involving “criminal activity,” “national security threats,” and certain other content.

The Fifth Circuit agreed that the government violated free speech, but it narrowed the injunction. (The government vigorously disputed many of the district court’s factual findings. The Fifth Circuit did not rely on many of those findings, but nevertheless held that the findings it credited were sufficient to support a narrowed injunction.) The Fifth Circuit’s injunction prohibited the government and its employees from taking any action, “formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to” moderate content “containing protected free speech.” The injunction said that this included “compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directly, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”

The Court stayed the injunction and agreed to hear the case.

CASE ANALYSIS

This case raises three issues. Let’s take them one at a time.

Standing

The government argues that the plaintiffs lack standing, because they failed to show that they suffered any cognizable injuries that are traceable to the government’s conduct or that could be redressed by judicial relief. The government says that the plaintiffs rely mostly on past instances when social media platforms moderated their posts, and that these instances occurred before the challenged government actions. Moreover, the government claims that the Fifth Circuit’s injunction restricting future government action cannot redress those past injuries, and that the plaintiffs failed to establish a real threat of future injuries that the injunction could redress. The government contends that the plaintiffs cannot establish standing based on their “generalized desire to listen to other social-media users.” According to the government, no court has endorsed such a “limitless theory.” Finally, the government asserts that the states lack standing, because states have no First Amendment rights.

The plaintiffs counter that they suffered, and continue to suffer, harms from the government’s ongoing pressure campaign against social-media platforms. They say that the government pressured platforms to censor their posts, to censor specific topics and viewpoints on which they speak, to adopt moderation policies that apply against the plaintiffs, and to censor other speakers that the plaintiffs read and re-post. The plaintiffs contend that the government’s actions harmed the states, which have “sovereign interests in posting their own speech and in following the speech of their citizens on social media, especially political speech.” The plaintiffs assert that the government’s efforts are ongoing, and that their harms are therefore “virtually certain to recur during the pendency of the case,” so that the Fifth Circuit’s injunction redresses their harm.

First Amendment

As a general matter, private social-media platforms are not restricted by the First Amendment. That’s because the First Amendment only applies against the government, not private actors. As a result, an individual has no First Amendment claim against a private social-media platform, even if the platform moderated the individual’s post based on government information, persuasion, or criticism. Indeed, the government communicates with social-media platforms all the time in order to help those platforms make content-moderation decisions that protect national security, public health, and other public interests. And social-media platforms often moderate content in response to government information and even persuasion.

That said, a private social-media platform becomes a state actor subject to First Amendment restrictions when the government “compels” it “to take a particular action,” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019), or “significantly encourages” it to take action.

In assessing whether government actors merely informed or persuaded, on the one hand, or impermissibly coerced or significantly encouraged, on the other, courts look to the particular circumstances of the government’s actions. In particular, they look to whether, under the specific facts, the government threatened consequences or offered incentives that effectively compelled a private party to act in a certain way.

The government argues that officials’ actions fell well short of “coercive threats” or “significant encouragement.” It says that no government official offered inducements to social-media platforms, and that no official from the FBI, CDC, CISA, or the Surgeon General’s Office threatened any platform with adverse consequences or offered any positive inducements. Instead, the government says that officials “largely just provided the platforms with information.” As to White House officials, the government says that they only provided “general responses to press questions untethered from any specific content-moderation request.”

The government argues that the Fifth Circuit erred in concluding otherwise. In particular, the government says that the Fifth Circuit wrongly “deemed all of the platforms’ content-moderation activities to be state action by radically expanding the state-action doctrine.” (Emphasis in original.) For example, the government contends that the Fifth Circuit wrongly concluded that FBI communications were inherently coercive just because “the FBI is a law-enforcement agency.” Moreover, the government contends that the Fifth Circuit wrongly concluded that government “significant encouragement” only required minimal government “entanglement” with the platforms, when in fact “significant encouragement” requires much more.

The government argues that the Fifth Circuit’s approach would lead to “startling” results. It says, for example, that the Fifth Circuit’s approach would sharply restrict the ability of government officials to speak on important matters of public concern, including national security and public health. Moreover, the government contends that the Fifth Circuit’s approach would constrain the ability of private social-media platforms to moderate content on these issues, because they would be considered “state actors” subject to the First Amendment.

The plaintiffs counter that government officials’ behavior constitutes both significant encouragement and coercion. As to significant encouragement, they claim that officials’ conduct “involves deep government entanglement in private decisionmaking based on relentless pressure from federal officials, including ‘the most powerful office in the world.’” As to coercion, the plaintiffs contend that government officials “employ[ed] a battery of explicit and implicit threats and pressure to ‘bend’ platforms ‘to the government’s will.’”

But even if the government hasn’t coerced the platforms, the plaintiffs argue that the government is “engaged in joint action with the platforms” by “conspir[ing] with platforms through endless private meetings and communications reflecting extensive, direct federal involvement in specific decisions.” According to the plaintiffs, this “entwine[ment]” transforms the private platforms’ content-moderation decisions into state actions under the First Amendment.

Injunction

The government argues that the Fifth Circuit’s injunction is impermissibly vague and overbroad. It says that the lower court failed to “identify any facts demonstrating that respondents will likely suffer irreparable harm in the future” to support the injunction. Moreover, the government contends that the injunction includes individuals who are not parties to the case, and impermissibly “covers any governmental communication about moderation of content on any topic posted by any user on any platform.” Finally, the government asserts that the injunction would “harm the government and the public by chilling a host of legitimate Executive Branch communications.”

The plaintiffs counter that the Fifth Circuit’s injunction is properly tailored. They say that it only prevents the government “from coercing and significantly encouraging the suppression of protected speech,” and that “[e]xtending the injunction across platforms and speakers is imperative to grant complete relief.” Moreover, they contend that other equitable factors favor the injunction. In particular, they claim that the government will continue its behavior, violating the rights of “millions” of Americans, and that “the likelihood of ongoing and repeated injuries to the Plaintiffs is overwhelming.”

SIGNIFICANCE

This case tests when and how the government can work with private social-media companies to address third-party content that threatens public health, electoral integrity, and other critical public interests. Just to draw on a couple examples from this case: How far can the government go in urging social-media platforms to moderate false information about COVID-19 vaccinations? How far can it go in urging platforms to moderate false information about the time or location of elections, or false information alleging election fraud?

On the one hand, social-media companies have long sought to address dangerous third-party content through content-moderation policies. And the government has long worked with these corporations (and other media) to inform and protect the public from those threats.

In recent times, the government has provided briefings, notices, and alerts to social-media corporations regarding third-party content that raises threats related to foreign and domestic terrorism, “covert foreign malign actor[s],” and (as here) public health and electoral security. Government officials have also often spoken publicly on a range of issues related to social media, including the public harms that can come from widespread false information on social-media platforms. The government can speak to private actors; it can even try to persuade them. Indeed, the government would be hard-pressed to govern without this power.

But on the other hand, heavy-handed government involvement with platforms and their content-moderation decisions—especially over politically charged topics—could raise the specter of government censorship.

In figuring where to draw the line, look for the Court to probe the specific behavior of various government actors and the larger context of that behavior. In particular, look for the justices to focus on what government actors actually said or did; whether their statements or actions contained threats or inducements; and how the social-media platforms likely understood their statements or actions; among other, similar questions. The Court may conclude that some government action crossed the line, and that other government action didn’t.

This case comes to the Court just weeks after the Court heard arguments in two other social-media cases, Moody v. NetChoice and NetChoice v. Paxton. Those cases test whether Florida’s and Texas’s laws restricting social-media platforms from moderating third-party content violate the First Amendment. To state the obvious: all of these cases are politically loaded. In the NetChoice cases, the states worry that social-media platforms censor politically conservative speech. In this case, the plaintiffs contend that the Biden Administration is causing them to censor that speech, and that it’s doing so for political reasons.

But as in the NetChoice cases, just because this case is politically loaded, don’t assume that the justices (or at least all of them) will lean toward their conventionally accepted political preferences. That’s because any rule or approach that the Court applies in this case will apply equally if and when the political tables turn.

Did a New York Official Impermissibly Coerce Companies Not to do Business with the NRA?

The Court will take up this question on Monday, March 18. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases:

FACTS

In late 2017, the Superintendent of New York’s Department of Financial Services (DFS), Maria Vullo, launched an investigation into an NRA-endorsed affinity insurance program called “Carry Guard.” (An affinity insurance program is an insurance program endorsed by an organization and offered to the organization’s members. Affinity insurance programs are serviced and underwritten by third-party insurance companies (and not the organization itself), but the NRA’s program bears the organization’s name and logo, and the NRA receives a portion of its members’ premiums as a royalty.) Carry Guard provided insurance coverage for losses resulting from an insured person’s use of a licensed firearm. The program included criminal defense costs for a person’s use of a firearm with excessive force, even if the insured acted with criminal intent. According to the Second Circuit, “[i]n other words, it insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” Carry Guard policies were underwritten by a subsidiary of Chubb Limited and administered by Lockton Companies, LLC. (The NRA claims that Vullo’s investigation “quickly expanded to encompass not just Carry Guard, but insurance products that had nothing to do with firearms.”)

The investigation revealed that Carry Guard and at least two other NRA insurance affinity programs violated New York insurance law because, among other reasons, they provided coverage for intentional criminal acts. By November 17, 2017, Chubb and Lockton suspended the Carry Guard program.

The investigation also revealed that Lloyd’s of London provided underwriting for at least 11 other, similar NRA-endorsed programs. Lockton administered these programs, too.

On February 14, 2018, a shooter killed seventeen students and staff at Marjory Stoneman Douglas High School in Parkland, Florida. According to the plaintiffs, “[i]n the wake of the shooting, the NRA faced intensified criticism for its pro-gun rights advocacy from many corners, including [New York] Governor [Andrew] Cuomo and Superintendent Vullo.”

That same month, Vullo began meeting with insurance executives whose companies did business with the NRA to urge them to rethink their relationships with the organization. For example, Vullo told executives at Lloyd’s that the company “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups.” After Vullo’s meetings with Lloyd’s, the company “agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.” DFS agreed to “focus its forthcoming affinity-insurance enforcement action” against Lloyd’s “solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”

Soon after, Lockton’s chairman told the NRA that “Lockton would need to ‘drop’ the NRA” out of “fear of ‘losing [our] license’ to do business in New York.” Lockton then tweeted that it would stop offering brokerage services for all NRA-endorsed insurance programs. Days later, AIG, the NRA’s longtime “corporate carrier,” announced that “it was unwilling to renew coverage at any price.” According to the plaintiffs, AIG discontinued its relationship with the NRA “because it learned of” Vullo’s and Cuomo’s “threats directed at Lockton and feared it would be subject to similar reprisals.”

On April 19, 2018, Vullo issued two guidance letters on “risk management relating to the NRA and similar gun promotion organizations,” one to DFS-regulated insurance corporations and the other to DFS-regulated financial institutions. Citing the Parkland shooting and public sentiment, the letters urged DFS-regulated entities to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility.” The letters specifically “encourage[d] regulated institutions to review any relationship they have with the NRA or similar gun promotion organizations and to take prompt actions to manag[e] these risks and promote public health and safety.” The letters, however, did not refer to any specific investigations or enforcement actions, like the investigation into Carry Guard.   

The same day, Cuomo issued a press release, stating that “I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities.” The release quoted Vullo as saying, “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage the[] risks and promote public health and safety.” The release announced that two insurance companies, MetLife and Chubb, already stopped doing business with the NRA, and urged “all insurance companies and banks doing business in New York to join” them. Following up the next day, Cuomo tweeted, “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.”

Two weeks after Cuomo’s press release, DFS revealed the results of its investigations into Chubb and Lockton over the Carry Guard program. DFS imposed multi-million-dollar fines on both companies. It also entered into consent decrees with the companies, in which the companies agreed to halt the Carry Guard program and never again to offer any affinity insurance program to the NRA. (Under the decrees, Chubb and Lockton could still provide insurance to the NRA itself, or to help the NRA in procuring corporate insurance coverage.)

Within a week of the consent decrees, Lloyd’s directed its underwriters to halt all insurance programs associated with the NRA, and not to provide any insurance to the NRA in the future. Then, in December 2018, Lloyd’s entered into its own consent decree with terms similar to the Chubb and Lockton decrees.

The plaintiffs claim that “[p]rivately, these companies stated that the decision to sever ties with the NRA arose from fear of regulatory hostility in New York.” They also contend that the NRA is having “serious difficulties obtaining corporate insurance coverage to replace coverage withdrawn by the [NRA’s] Corporate Carrier,” AIG, and that the organization has “spoken to numerous carriers,” but “nearly every carrier has indicated that it fears transacting with the NRA specifically in light of DFS’s actions against Lockton, Chubb, and Lloyd’s.” Finally, the plaintiffs assert that “numerous banks withdrew bids for the NRA’s business after Vullo issued the Guidance Letters.”

The NRA sued Vullo, Cuomo, and others, alleging that Vullo’s actions punished the organization for its protected speech. The district court dismissed all the NRA’s claims, except two First Amendment claims against Vullo. The Second Circuit reversed, holding that the NRA failed to plausibly allege that Vullo coerced DFS-regulated entities in violation of the First Amendment, and that Vullo enjoyed qualified immunity. The Court then granted review on the First Amendment issue, but declined to include the qualified immunity question.

CASE ANALYSIS

As a general matter, government officials have wide latitude to express their views. As a result, officials can express a preference for a position or viewpoint; they can criticize organizations and corporations; and they can even try to persuade individuals and organizations to adopt certain behaviors, including disassociating themselves from particular advocacy groups or viewpoints. Government officials engage in speech like this all the time, and the First Amendment does not prohibit it.

That said, government officials cannot coerce a person or organization to disassociate themselves from a speaker, advocacy organization, or viewpoint by using threats or inducements. In determining the line between (permissible) persuasion and (impermissible) coercion, courts assess a government official’s behavior on the whole and in context. Drawing on the Court’s ruling in Bantam Books v. Sullivan, 372 U.S. 58 (1963), lower courts typically look to several factors, including the authority of the government official over the individuals or organizations they are addressing; the content, style, and purpose of the communications; and the effect of the official’s conduct on their intended audiences. (The NRA counts these as three factors, and Vullo counts them as four; but they amount to the same thing.) All this means that at the motion-to-dismiss stage (as here), a plaintiff must allege that, on the whole and in context, they “reasonably understood” a government official’s statements as a threat of adverse government action if they declined to comply. 

The NRA argues that the Bantam Books factors line up in its favor. As to the first factor, the organization says that by virtue of Vullo’s position she had “outsized influence over the banks and insurers whom she urged to cut ties with the NRA.” As to the second, it claims that Vullo “directly invoked her statutory authority” in her actions; she directed regulated entities to take “prompt action” and to consider their “reputational risks” or face multi-million-dollar fines; and she offered benefits to the NRA’s insurance partners for cutting off ties with the NRA, “extract[ing] promises” from the three who did. As to the third factor, the NRA contends that regulated corporations well understood Vullo’s behavior as coercion and “heard her message loud and clear.” The NRA asserts that taking the complaint’s allegations as true (as we must at this stage), the complaint sets out “a campaign of threats and inducements designed to retaliate against the NRA’s protected political speech in violation of the First Amendment.”

The NRA contends that the Second Circuit got it wrong by holding otherwise. The organization says that the Second Circuit “mangled basic pleading standards, dismissed or ignored critical allegations of coercion, and failed to consider the cumulative effects of Vullo’s actions.” Moreover, it claims that the lower court’s “suggestion that Vullo’s political blacklisting campaign was justified because of the NRA’s unpopularity in New York” effectively invites similar “blacklisting campaigns” against any unpopular group. And finally, the NRA contends that Vullo’s actions—“urg[ing] every bank and insurance company in New York State to cut all business ties with the NRA” (emphasis in original)—far exceeded what was necessary to address the Carry Guard program. “By her words and deeds, Vullo made clear that her goal was a political blacklist, not legitimate law enforcement.”

Vullo counters that the Court lacks jurisdiction. Vullo says that because the question presented is limited to the NRA’s First Amendment claim, the Second Circuit’s ruling on her qualified immunity will stand. (An official can enjoy qualified immunity on the ground that the law was not clearly established at the time, even if the Court clearly establishes it later.) As a result, she enjoys qualified immunity regardless of how the Court rules on the First Amendment claim, and the First Amendment issue is therefore merely “advisory.”

Vullo argues next that even if the Court has jurisdiction the NRA’s “claims suffer from [four] fatal problems” that would allow the Court to duck a First Amendment ruling. First, Vullo says that “the bulk of the NRA’s allegations turn on enforcement acts protected by absolute prosecutorial immunity.” Next, she claims that the NRA “failed to plausibly allege that [she] retaliated against speech, as opposed to regulating third parties’ conduct,” especially “in light of the insurers’ own admissions that they and the NRA were engaged in wide-ranging illegal conduct.” Third, Vullo contends that her actions limited “only what the NRA could do, not what it could say.” And fourth, as to the Lloyd’s meeting, she asserts that “the NRA has not plausibly alleged that [she] threatened to interfere with Lloyd’s lawful arrangements with the NRA,” because “all of the affinity programs Lloyd’s provided for the NRA were illegal.” (Emphasis in original.) She also points out that Lockton (the licensed excess-line broker for the NRA) already decided to sever ties with the NRA two days before her alleged meeting with Lloyd’s (the unlicensed excess-line insurer), and under New York law, “Lloyd’s could not lawfully continue its relationship with the NRA either . . . .”

If the Court gets past these threshold issues, Vullo argues that “the NRA’s complaint does not plausibly allege coercion.” Under the Bantam Books factors, she contends that she “did not reference or threaten adverse consequences,” but instead “used quintessential language of encouragement,” except when referring to actual legal violations. She says that “the NRA’s allegations about the supposed Lloyd’s meeting are vague, conclusory, and contradicted by the NRA’s allegations elsewhere.” Moreover, Vullo claims that her “tone and word choice of the industry letters was even-handed and nonthreatening,” and that “[t]he consent orders’ tenor was wholly consistent with their aim.” She asserts that the responses by the regulated entities “are easily explained as responses to the horrific Parkland shooting or the insurers’ own admittedly unlawful conduct,” and not her coercion. And she contends that her own authority can’t make “her otherwise nonthreatening communications coercive,” or else law enforcement officials generally could not express their views on public issues.

Finally, Vullo argues that “[t]he NRA’s arguments would be devastating for government officials at all levels.” In short,

These arguments would eviscerate the protections of prosecutorial immunity and the presumption of regularity; circumvent limits on selective-enforcement suits; inhibit public officials from performing their duties; invite strike suits in response to legitimate law-enforcement actions and government speech; and allow entities to insulate themselves from the consequences of their unlawful conduct by engaging in controversial speech.

The government weighs in to argue that Vullo engaged in impermissibly coercive conduct during her meeting with Lloyd’s. It says that the NRA’s allegation that Vullo “expressed a desire to leverage her authority to financially weaken [the NRA] based on her disagreement with [the NRA’s] views, identified technical regulatory infractions that Lloyd’s might have committed, and then stated that she would be willing to overlook those infractions if Lloyd’s stopped doing business with petitioner . . . [i]f true . . . would establish that [Vullo] violated the First Amendment. The government contends that the lower court erred in saying otherwise, because it failed to connect the Bantam Books factors to the underlying question (“[w]hether the official’s challenged conduct, viewed objectively and in context, conveys a threat of adverse government action”), and failed to take account of Vullo’s reference to adverse consequences at the meeting.

The government urges the Court not to rule on the NRA’s other claims, related to the guidance letters and the consent decrees. The government says that these claims only “raise more difficult questions in a highly unusual factual context.”

SIGNIFICANCE

This case tests how aggressively a government regulator can urge corporations to stop doing business with an advocacy organization before the regulator violates the organization’s right to free speech. And it does so against the backdrop of the horrific Parkland shooting, and in the context of one of the more politically charged issues of our times, firearms.   

On the one hand, the NRA contends that the First Amendment does not permit a regulator, especially one like Vullo, with such vast authority, to use their office and the threat of regulatory enforcement to harm an ideological foe. On the other hand, Vullo says that she should be able to use her leverage to halt illegal relationships; after all, that’s her job. The government, for its part, seeks to split the difference, and urges the Court to rule some of Vullo’s conduct (the alleged Lloyd’s meeting) unconstitutional, while dodging the conduct that raises thornier claims.

Vullo gives the Court several off-ramps—ways to rule without touching the core First Amendment claim. But it’s not at all clear that the Court will take any of them. After all, the Court certified the question presented intentionally and left out qualified immunity, suggesting that at least four justices want to take up the NRA’s free-speech claim.

It’s impossible to take the politics out of this case. I certainly don’t need to remind you that the NRA has its own political bent. But remember that the Court’s ruling, whatever it is, has to work both ways, politically speaking. So in addition to testing the line between persuasion and coercion, look for the justices to test how any proposed rules or theories stack up when the politics are different.

One final point. We’ve seen reports in late 2023 and more recent months about troubles at the NRA—declining membership, internal infighting, and, most recently, the civil judgment against Wayne LaPierre. This case spotlights another problem for the organization: corporations who no longer can or will do business with it (with or without the actions of regulators like Vullo). This case may have something to say about how far regulators can go in urging corporations to disassociate with the NRA in the future. But it may have little effect on corporate decisions already made. If insurers or bankers already decided not to associate with the NRA—either because their actions were illegal, or because they disapprove of the NRA’s message—this case (whatever it says) may not bring them back.

D.C. Circuit Rejects Navarro Motion for Release Pending Appeal

The D.C. Circuit today rejected Peter Navarro's motion for release from prison pending his appeal.

Navarro, White House trade advisor to former President Trump, was convicted of contempt of Congress for defying a subpoena from the House committee investigating the January 6 insurrection. He was sentenced to four months imprisonment. The district court rejected Navarro's claim that he acted under executive privilege. But he appealed, and moved the D.C. Circuit to release him from his prison sentence pending his appeal.

The D.C. Circuit flatly rejected Navarro's motion. Among other things, the court said that Navarro's motion doesn't present a "substantial question of fact regarding the district court's finding that executive privilege was not invoked in this matter by former President Trump or the sitting President, and he therefore forfeited any such argument." Moreover, the court wrote that in any event there's no "close question," because the President didn't actually invoke the privilege. Next, the court asserted that even if executive privilege were invoked, Navarro "forfeited any challenge to the district court's alternative conclusion that dismissal of the indictment still would not be required because executive privilege is a qualified privilege that would be overcome by the imperative need for evidence." And the court noted that even if executive privilege applied, "it would not excuse his complete noncompliance with the subpoena." That's because "[a] properly asserted claim of executive privilege would not have relieved him of the obligation to produce unprivileged documents and appear for his deposition to testify on unprivileged matters."

Assuming any appeal to the Supreme Court doesn't happen or is similarly flatly rejected, Navarro will have to report to federal prison by Tuesday.

American Library Association Reports Record Number of Book Challenges in 2023

The ALA reports that 4,240 book titles were targeted for censorship in 2023, a 65 percent increase over 2022. The ALA reports four key trends:

• Pressure groups in 2023 focused on public libraries in addition to targeting school libraries. The number of titles targeted for censorship at public libraries increased by 92 percent over the previous year; school libraries saw an 11 percent increase.
• Groups and individuals demanding the censorship of multiple titles, often dozens or hundreds at a time, drove this surge.
• Titles representing the voices and lived experiences of LGBTQIA+ and BIPOC individuals made up 47 percent of those targeted in censorship attempts.
• There were attempts to censor more than 100 titles in each of these 17 states: Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Maryland, Missouri, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Wisconsin.

In response, ALA launched Unite Against Book Bans "to empower readers everywhere to stand together in the fight against censorship."

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.

Judge Quashes Six Counts in Trump's Georgia Election Interference Case

Judge Scott McAffee today quashed six of the 41 counts against Trump and his cooperators in the Georgia election-interference case. Judge McAffee's order preserved the remaining counts, and invited the government to refile the six quashed counts or to seek immediate review of the order.

In short, the order requires the government to charge with greater specificity, but otherwise doesn't change much in the case.

The court quashed the counts alleging that defendants solicited various officials to violate their oaths of office "by requesting or importuning [the officials] to unlawfully appoint presidential electors," among other, related crimes. The oaths, in turn, include "a provision that the oath-taker will support the Constitution of the United States and the Constitution of Georgia."

Here's the problem: "When charging compound crimes, such as felony murder, precedent is clear that the allegations must either include every essential element of the predicate offense or charge the predicate offense in a separate count." But here the charges didn't specify how the defendants violated their oaths (the underlying, or predicate, offense), because they didn't specify which portions of the constitutions the officials violated. Here's how the court put it:

this Court finds that the incorporation of the United States and Georgia Constitutions is so generic as to compel this Court to grant the special demurrers. . . .

The Court's concern is less that the State has failed to allege sufficient conduct of the Defendants--in fact it has alleged an abundance. However, the lack of detail concerning an essential legal element is, in the [court's] opinion, fatal. As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited. They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct way.

The court went on to note, however, that the government can "seek a reindictment supplementing these six counts" within six months of the order (irrespective of any statute of limitations). The court said that the state could alternative "request a certificate of immediate review . . . which the Court would likely grant due to the lack of precedential authority."

Justice Alito Extends Stay in Texas SB4 Case Until Monday

Justice Alito issued a pair of orders today extending an earlier stay of a Fifth Circuit ruling in the Texas SB4 case until Monday. The orders give the high Court a few more days to consider the government's application to vacate the Fifth Circuit's move, which allowed SB4 to go into effect. The upshot is that SB4 is not now in effect, and the Court will likely rule on Monday whether it can go into effect pending appeal.

SB4 would impose state criminal penalties on noncitizens who unlawfully enter or reenter Texas from Mexico. It would also require Texas courts to remove those noncitizens to Mexico without Mexico's consent and without regard to federal law.

It's plainly unconstitutional under Arizona v. United States. But Texas surely knows that, and is angling for a change in the law.

The district court issued a preliminary injunction preventing enforcement of SB4. Texas appealed and moved for a stay pending appeal and an immediate administrative stay. The Fifth Circuit granted an "administrative stay" (which would allow SB4 to go into) but stayed the effect of that stay for seven days (which meant that SB4 didn't go into effect for seven days). With that seven-day clock ticking, Justice Alito, as circuit justice, issued an administrative stay (which meant that SB4 didn't go into effect) until March 13, and today extended it until next Monday, March 18.

The case is really two cases at the Court; here's the docket for one, here's for the other.

Check it Out: Sepper and Wiley on Religious Liberty Challenges to Social Insurance

Elizabeth Sepper and Lindsay Wiley recently posted The Religious Liberty Challenges to American-Style Social Insurance. Here's the abstract:

This Article argues that escalating religious challenges to the Affordable Care Act (ACA) form a major new vector in the campaign against social insurance in the United States. Where early constitutional challenges urging a libertarian ethos of “you’re on your own” largely failed, religious claimants are succeeding with a traditionalist entitlement to “take care of your own as you see fit.” In a mounting series of lawsuits, objectors challenge requirements that employers and insurers provide comprehensive, nondiscriminatory coverage of sexual and reproductive health services. They demand freedom to define their own communities and choose which medical needs they will support. They revive the notion of personal responsibility largely repudiated by health reform and add a moralized twist. The result is discrimination against marginalized groups, coercion of workers, and loss of democratically determined rights.

Bridging political economy and religion law scholarship, this Article attributes religious claimants’ successes to the ACA’s distinctively American accommodationist and market-first structure. Concessions that facilitated the Act’s passage in Congress now grant a foothold for religious objectors eager to rewrite the insurance social contract in the courts. Religious exemptions re-fragment the social collective—by family, firm, medical need, and religious belief. We are no longer “all in it together,” as the ACA would have it; we are separate and apart.

Check it Out: Shugerman on "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism

Jud Shugerman just posted "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism. Here's the abstract:

SEC v. Jarkesy represents a turning point – and arguably a legitimacy crisis -- for both the unitary executive theory of removal and originalism-in-practice. Over the last five years, a wave of scholarship by legal scholars and historians has disputed, and sometimes refuted, the historical claims by unitary theorists that Article II implies a presidential power to remove executive officers. In response to those arguments, I observe, first, that the legal academy’s prominent unitary executive theorists have fractured into contradictory positions, even internally contradictory positions. (There is a deep irony of “unitary” theory fracturing into multiple and contradictory theories).

Second, as the unitary theory has shifted and retreated from earlier historical claims, the different theorists have engaged in a shell game, which I will identify here as “Heads-I-Win, Tails-You-Lose” originalism. For example, unitary theorists rely on English practice as a model for Article II when it supports their theory, but when critics provide contrary evidence from English practice, unitary theorists – without blinking -- say English practice is irrelevant because the English did not have an American-style separation of powers. Somehow, the practice of the British Crown counts as “executive power” but the practice of English Parliament does not count as “legislative power.” Originalists often cite colonial British practice as an anti-model for the Framing (see the use of the Declaration of Independence and the historical context for the Bill of Rights), but suddenly and conveniently, unitary theorists now cite colonial British administration as evidence for “executive power” and Article II. Post-Ratification evidence sometimes counts, and sometimes it doesn’t, depending upon which side it benefits. The Federalist Papers count, except when they don’t. Marbury counts, except when it doesn’t. Unitary theorists dismiss the problem that the text of the Constitution is silent on removal, but somehow, silence in congressional debates count as evidence of original public meaning. But somehow mid- to late-nineteenth century cases and practices count as original public meaning. This is a methodological legitimacy crisis.

Third, echoing some other commentators (see Christine Kexel Chabot), I suggest that these theorists and the Roberts Court are engaged in “Vibe Originalism”: Justices and scholars making a presentist and ideological assumption about a constitutional text, a “vibe” framed as common sense, without support from historical evidence. (E.g., the Take Care clause surely creates an indefeasible presidential power). In separation of powers cases, this “vibe” shifts the burden of proof: Instead of bearing a burden of proof to strike down a congressional statute, the “vibe” creates an assumption of judicial activism, and those who argue for judicial restraint and Congress’s power under Article I suddenly bear the burden of proof to overcome the vibe’ After historians have disputed or disproven those assumptions, the theorists and Justices return to the vibe.

 

Check it Out: Pfander on Judicial Review of Unconventional Enforcement Regimes

James E. Pfander recently posted Judicial Review of Unconventional Enforcement Regimes. (Check this out along with Wasserman and Rhodes's piece.) Here's the abstract:

The Supreme Court’s decision in Whole Woman’s Health v. Jackson seriously complicates judicial review of unconventional private enforcement schemes. Announced in December 2021, before the leak and eventual publication of the Dobbs decision, WWH studiously declined to block the effectiveness of the Texas Heartbeat Act, S.B. 8, citing a reluctance to allow injunctive relief against state courts and judges. As a result, parties threatened with bounty-based private enforcement akin to that in S.B. 8 will struggle to secure an effective federal test of the constitutionality of state restrictions. The WWH framework encourages more states, both red and blue, to use unconventional private enforcement regimes to limit pre-enforcement review.

Legal scholarship on unconventional regimes like S.B. 8 has yet to consider the writ of prohibition as a vehicle for judicial review. This Essay puts the WWH decision into conversation with the forms of inferior-court supervision available through the common law writ of prohibition. Prohibition empowers superior courts to block lower courts from exercising authority over matters outside their jurisdiction. Among its other features, prohibition operates directly on lower courts and their judges, threatening them with the injunctive relief that WWH deemed improper in an Ex parte Young action. Prohibition thus offers one answer to the judicial-power concerns that derailed the WWH litigation and a foundation for a broader vision of federal judicial oversight of unconventional enforcement schemes.

Check it Out: Wasserman and Rhoses on Private Enforcement and Blue-State Revenge

Howard Wasserman and Rocky Rhodes just posted 303 Creative, Exclusive Private Enforcement, and Blue-State Revenge. Here's the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

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.

Federal Judicial Conference Moves to Curb Judge Shopping

The Federal Judicial Conference announced today that it's "strengthen[ing] the policy governing random case assignment, limiting the ability to litigants to effectively choose judges in certain cases by where they file a lawsuit."

The move is designed to curb federal judge shopping. That's when litigants strategically file suit in a one-judge courthouse based on their (usually correct) predictions about how the judge will rule on hot-button issues and whether the judge will issue a nationwide injunction.

Under the new policy, "judges would be assigned through a district-wide random selection process." This means that plaintiffs who file in a single-judge courthouse (like Judge Matthew Kacsmaryk's court in Amarillo, Texas) won't be assured of getting that judge; instead, they might get any other judge in the district.

In announcing the policy, Judge Robert J. Conrad, Jr., the secretary of the Conference, said, "The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary."

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.