Monday, April 15, 2019
The United States Supreme Court hear oral arguments in Iancu v. Brunetti, a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks.
Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional. Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.
Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes. Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants — reappeared in the Brunetti argument.
The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).
Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words." While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.
While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.
Tuesday, March 26, 2019
The Court heard oral arguments in Rucho v. Common Cause (& League of Women Voters) regarding the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering.
Recall that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. The United States Supreme Court stayed that judgment.
Recall also that last term the Court essentially dodged the issue of the constitutionality of partisan gerrymandering, finding in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted by the three judge court and in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, declining to to disturb the three judge court's decision not to grant a preliminary injunction.
The question of the standard by which to judge partisan gerrymandering preoccupied the arguments with the inevitable slippery slope of having the courts guarantee proportional representation being invoked. Additionally, the question of whether the federal courts should defer was raised repeatedly, with the solution being a state referendum, or even Congressional action, with Paul Clement representing the republican state legislators arguing that
And if you look at HR-1, the very first bill that the new Congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions, now query whether that's constitutional, but it certainly shows that Congress is able to take action in this particular area.
Clement argued vigorously that the federal courts should have no power to act to prevent partisan gerrymandering, however extreme, with Justice Sotomayor stating that such an argument's "ship has sailed in Baker v. Carr" (1962), but Clement concluding with the point in his rebuttal referencing the authors of the Federalist Papers as accepting the political realities of partisan gerrymandering.
Monday, March 18, 2019
The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.
Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail. In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:
- the Third Amendment’s protection against quartering of soldiers;
- the Fifth Amendment’s grand jury indictment requirement;
- the Seventh Amendment right to a jury trial in civil cases; and
- the Eighth Amendment’s prohibition on excessive fines.
Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.
But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address. That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict. Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")
Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.
March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Tuesday, March 12, 2019
In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding — including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion.
In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions." Moreover, Sutton's opinion rejected the argument that
the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.
In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).
In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying,
the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.
citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.
The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).
March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Wednesday, March 6, 2019
In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.
Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq. An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.
In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.
The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including
the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.
As to the Enumeration Clause, Judge Seeborg wrote:
The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.
Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question
will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.
[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:
The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.
Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.
[image: Los Angeles Census materials, 1920, via]
Wednesday, February 20, 2019
In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."
Instead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case. In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.
Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause. Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question."
Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.
Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.
February 20, 2019 in Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Tuesday, February 19, 2019
United States Supreme Court Justice Clarence Thomas, writing a concurring opinion from the denial of certiorari in McKee v. Cosby, has essentially called for an abandonment of First Amendment concerns in the torts of defamation and libel. Interestingly, the lawsuit involves a claim by McGee, who accused actor and comedian Bill Cosby of sexual assault, for defamation based on a letter from Cosby's attorney which allegedly damaged her reputation for truthfulness and honesty. The First Circuit, affirming the district judge, found that by making the public accusation, McKee became a "limited-purpose public figure" under First Amendment doctrine and therefore would have to show not only that the statements were false, but that they were made with actual malice (knowledge of falsity or reckless disregard for the truth).
McKee had sought review of the determination that she was a limited public figure. The Court declined. Justice Thomas's concurring opinion does not address this "fact bound inquiry," but instead argues that the Court should reconsider the doctrinal basis for the lower courts' decisions, including New York Times v. Sullivan (1964), which the opinion extensively discusses. In a nutshell, Thomas argues that New York Times v. Sullivan and its progeny are "policy-driven decisions masquerading as constitutional law": there was no "public figure" doctrine of libel at common law and an originalist understanding of the First Amendment does not extend to state law torts such as defamation and libel. While New York Times v. Sullivan may seem like settled precedent entitled to respect under stare decisis, Justice Thomas notes that the Court "did not begin meddling in this area until 1964, nearly 174 years after the First Amendment was ratified."
What should we make of this thirteen page concurring opinion? It can seem a gratuitous intervention in a case in which it would not make a difference. Or it can seem just another occasion for Justice Thomas to articulate his hallmark originalism. Or it could be an invitation for lower federal judges — and for litigators — to start challenging the First Amendment actual malice standard for defamation and libel more directly. Additionally, this position is quite consonant with the President's statements that libel laws need revision and Trump's reputation as a "libel bully," although perhaps cases such as Summer Zervos lawsuit against Trump — very similar to McKee's against Cosby — Trump would be disserved by a more common law approach. But in the cases in which Mr. Trump were the plaintiff, an absence of the burden of having to prove "actual malice" would certainly work to his benefit.
Wednesday, February 13, 2019
On February 25, the Court will hear oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.
In the Second Circuit's divided opinion in Halleck v. Manhattan Community Access Corporation (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.
But before reaching that heart are sticky issues involving whether the First Amendment applies at all given the complex statutory and regulatory schemes governing "public access" television. Additionally, the conflation of the state action threshold for all constitutional claims and the doctrine of "public forum" under the First Amendment can make the analysis murky. As a further complication, the most applicable precedent is Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) which the majority opinion in Halleck by Judge Jon Newman accurately describes as "a case that generated six opinions spanning 112 pages of the United States Reports," in which "five Justices expressed differing views on whether public access channels were public forums." Judge Newman acknowledged that there was not only disagreement among the Justices, there was disagreement among the Circuits and District Courts, but ultimately declared:
With all respect to those courts that have expressed a view different from ours, we agree with the view expressed by Justices Kennedy and Ginsburg in Denver Area. Public access channels, authorized by Congress to be “the video equivalent of the speaker’s soapbox” and operating under the municipal authority given to MNN in this case, are public forums, and, in the circumstances of this case, MNN and its employees are subject to First Amendment restrictions.
Writing a dissent on this issue in the Second Circuit, Judge Dennis Jacobs essentially criticized the conflation of the state action and First Amendment public forum issues, arguing that the majority opinion
private property leased by the Government for public expressive activity creates a public forum; a facility deemed to be a public forum is usually operated by Government; action taken at a facility determined to be a public forum usually is state action; the First Amendment applies to a person acting at such a facility if the person has a sufficient connection to Government authority to constitute state action; and here, the Borough President’s designation of MNN to administer the public‐access station is sufficient.
[citations to majority opinion omitted]. Judge Jacobs would have applied state action doctrine under the Second Circuit requiring that a private entity can only be deemed a state actor if there is compulsion by the state, or joint action with the state (an entwinement analysis), or when the private entity has been delegated a public function by the state. In his concurrence, Judge Lohier argued that there was state action under the public function analysis, but for Judge Jacob, the operation of an "entertainment facility" was not a traditional public function: "And it is fortunate for our liberty that it is not at all a near‐exclusive function of the state to provide the forums for public expression, politics, information, or entertainment."
Looking forward to the oral argument at the Supreme Court, it will be worth noticing whether the Justices focus on public forum doctrine under the First Amendment or on state action doctrine or whether the problematical convergence of the two doctrines continues.
Friday, February 1, 2019
In its en banc opinion in American Beverage Association v. City and County of San Francisco the Ninth Circuit unanimously found that the San Francisco ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance provided that advertisements for Sugar-Sweetened Beverages (SSB) include a warning:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
It further defined advertisements and importantly provided detailed instructions regarding the form, content, and placement of the warning on SSB Ads, including a requirement that the warning occupy at least 20% of the advertisement and be set off with a rectangular border.
Recall that the Ninth Circuit panel had similarly found that the SF ordinance most likely violated the First Amendment, reversing the District Judge's failure to grant a preliminary injunction.
The problem of the level of scrutiny to apply when the government compels speech in a commercial setting is one that has been reoccurring. In short, the choice of standards is between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Judge Graber noted that the Ninth Circuit had previously decided that the more lenient test of Zauderer applied in CTIA - The Wireless Ass'n v. City of Berkeley. However, a closely divided United States Supreme Court in National Institute of Family & Life Advocates (NIFLA) v. Becerra (2018), "applied the Zauderer test without deciding whether that test, in fact, applied" and found that a California statute mandating disclosures by crisis-pregnancy centers violated the First Amendment. But, according to Judge Graber's opinion, while NIFLA required the Ninth Circuit to reexamine the approach to challenges to compelled commercial speech, "nothing in NIFLA suggests that CTIA was wrongly decided," especially given the concern with health and safety warnings as permissible.
Under Zauderer, the usual factors require that the compelled disclosure be factual, non-controversial, and not unjustified or unduly burdensome, and then application of the lenient standard of a substantial government interest to which the mandated disclosure is reasonably related. Here, Judge Graber's opinion for the court concluded that the warning was unduly burdensome given the mandated size of the warning as 20% of the image.
While Judge Graber's opinion for the en banc court is relatively succinct, several other judges wrote opinions to disagree with the reasoning but not the result. Judge Sandra Ikuta, who authored the panel opinion, which was issued before the Supreme Court's opinion in NIFLA, argued that NIFLA provided a (new) framework mandating that the compelled speech regulation be considered a First Amendment content-based regulation subject to heightened scrutiny unless a Zauderer exception applies. In another concurring opinion, Judge Morgan Christen, joined by Chief Judge Sidney Thomas, agreed with the majority that Zauderer applied, but concluded that the warning did not survive the "purely factual" and "noncontroversial" factors of Zauderer. A third concurring opinion, authored by Judge Jacqueline Nguyen, objected to the application of Zauderer outside the context of false or misleading speech and argued that the more intermediate scrutiny test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) should apply.
These varying opinions suggest that the issue of the First Amendment consequences of states requiring warnings and thus arguably infringing commercial speech is far from resolved, although the agreement on the result here may mean that this is an unlikely case for Supreme Court review.
Tuesday, January 22, 2019
The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a premises license for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,” but further defines an "authorized" range/shooting club as limited to facilities located in New York City.
Recall that the Second Circuit unanimously upheld the regulation. On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' " Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel." On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.
Friday, January 4, 2019
SCOTUS Grants Certiorari on First Amendment Challenge to Trademark Rejection of Immoral or Scandalous Mark
The Court granted certiorari in Iancu v. Brunetti regarding the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the federal registration of “immoral” or “scandalous” trademarks. The Federal Circuit Court of Appeals held that the section violates the First Amendment. At issue was a rejection to a trademark to Brunetti's apparel line named "fuct." The Federal Circuit Court concluded with an interesting analogy to copyright protection and the First Amendment:
The trademark at issue is vulgar. And the government included an appendix in its briefing to the court which contains numerous highly offensive, even shocking, images and words for which individuals have sought trademark registration. Many of the marks rejected under §2(a)’s bar on immoral or scandalous marks, including the marks discussed in this opinion, are lewd, crass, or even disturbing. We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.
We hold that the bar in § 2(a) against immoral or scandalous marks is unconstitutional because it violates the First Amendment.
The Federal Circuit relied heavily on Matal v. Tam (2017) involving the band "the Slants" in which the United States Supreme Court decided that the "disparaging" provision of the same section of the Lanham Act violated the First Amendment. Recall that the Federal Circuit had also decided Matal v. Tam (f/k/a In Re Simon Shiao Tam) en banc, and the litigation in Brunetti has always been somewhat in the shadow of Tam. The Federal Circuit's opinion, rendered more than a year ago, contended that while the "immoral” or “scandalous” provisions might well be viewpoint restrictions as in Tam, they were certainly content discrimination under the First Amendment.
The concurring judge of the Federal Circuit panel in Brunetti argued that the section was amenable to a narrowing and saving construction limited to obscenity (although he agreed that because the name of Brunetti's apparel line was not obscene the trademark was unconstitutionally denied registration). The United State Supreme Court's purpose in granting certiorari is not immediately obvious, but the Under Secretary of Commerce's petition for certiorari picked up the concurring opinion's contention and argued that the Court should not declare the provisions facially unconstitutional.
[image: "news headline pullover hoodie" via]
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]
Wednesday, January 2, 2019
For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported. The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.
Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."
The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.
image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.
Friday, December 28, 2018
In its opinion in Alliance for Open Society International v. United States Agency for International Development, the Second Circuit split in its application of the United States Supreme Court's 2013 opinion in the same case.
Recall that United States Agency for International Development v. Alliance for Open Society International involved a First Amendment challenge to a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. In the relative brief opinion by Chief Justice Roberts, the Court held the spending conditions of requiring an "anti-prostitution pledge" were unconstitutional because they were not limits of the government spending program itself that specified the activities that Congress wants to subsidize, but were "conditions that seek to leverage funding to regulate speech outside the contours of the program itself."
The subsequent litigation revolved around the reach of this holding. For the district judge and the majority of the Second Circuit panel, the holding included the plaintiff organizations and their "foreign affiliates." For dissenting Judge Chester Straub, the "foreign affiliates" possess "no constitutional rights" and the United States government was free to deny them funding for failure to comply with an otherwise unconstitutional condition. For Judge Straub, the majority misconstrued the United States Supreme Court's opinion, extending it to some vague and ill-defined set of "closely aligned" ("whatever that may mean") foreign entities. But the majority opinion, authored by Judge Barrington Parker, rejoined that it is not the First Amendment rights of the foreign entities that are violated, but the domestic organization's speech that is compelled. For the majority, if the government — and by extension, the dissenting Judge — "is right, then Chief Justice Roberts was wrong."
In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution." This refers the 2011 year end report by Chief Justice Roberts in which he stated:
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices. As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions.
Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position. And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.
Wednesday, December 5, 2018
In its opinion in Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, a divided panel of the Third Circuit rejected a challenge to New Jersey's prohibition of large capacity magazines (LCM), defined as magazines capable of holding more than ten rounds of ammunition, N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j). The challengers sought a preliminary injunction based on violations of the Second Amendment, the Equal Protection Clause, and the Fifth Amendment's Taking Clause; after an evidentiary hearing the district judge denied the injunction.
On the Second Amendment claim, the Third Circuit majority agreed with the general analysis laid out by the Second Circuit in New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (2015). Judge Patty Shwartz, writing for the majority, first determined that a "magazine" is an arm regulated under the Second Amendment. Judge Shwartz then considered whether the regulation of a specific type of magazine, namely an LCM, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee," by inquiring whether the type of arm at issue is commonly owned, and “typically possessed by law-abiding citizens for lawful purposes." The court noted that the record showed there were "millions" of such magazines and then assumed "without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." The court then turned to the level of scrutiny to be applied — a question left open by the Court in Heller v. D.C. — by inquiring how severely the challenged regulation "burdens the core Second Amendment right."
Here, the court held that the New Jersey law did not severely burden the core Second Amendment right to self-defense in the home for five reasons and thus determined that intermediate scrutiny should apply. The court then held that the State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens’ safety," including reducing the lethality of active shooter and mass shooting incidents. The court rejected the challengers' argument that the rarity of such incidents should negate the state's interest, finding instead that the "evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents." The court further found that the LCM ban was a sufficiently close fit to the state's interest in promoting safety.
It was on the Second Amendment issue that Judge Stephanos Bibas dissenting, arguing that strict scrutiny should apply and that even if it does not, the New Jersey statute fails intermediate scrutiny. For Judge Bibas, although the majority stands in good company: five other circuits have upheld limits on magazine sizes," the courts err "in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof."
While the Second Amendment challenge was at the heart of the case, the majority also rejected the challengers' claims under the Takings Clause and the Equal Protection Clause. On the Takings Clause, the majority held that there is not actual taking, and no "regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines." On the Equal Protection Clause, the challengers faulted the Act because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so.The majority did not engage in a robust analysis, but held that "retired law enforcement officers are not similarly situated to retired military personnel and ordinary citizens, and therefore their exemption from the LCM ban does not violate the Equal Protection Clause."
In short, the Third Circuit's opinion is part of a trend of determining that intermediate scrutiny applies to various regulations of high capacity firearms or magazines and upholding state regulation. Most likely a petition for certiorari will follow this opinion and it will be interesting to see whether the United States Supreme Court continues its own trend of denying such petitions.
[image: double-drum magazine, which holds 100 rounds, via]
Wednesday, November 28, 2018
The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover. Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment."
As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states."
The Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.
The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:
And one question is incorporating the right, and the other question is the scope of the right to be incorporated.
And, really, what you're arguing is about the scope of the right.
On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.
In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held.
If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.
Monday, November 26, 2018
On November 28, 2018, the United States Supreme Court will hear oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and arguably whether this includes forfeitures.
The Indiana Supreme Court's brief opinion clearly concluded that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." The Indiana Supreme Court cited footnote 13 of McDonald v. City of Chicago, in which a majority of the Court found that the Second Amendment was incorporated to the states through the Fourteenth Amendment (with a plurality relying on the Due Process Clause). Recall that in footnote 12, Justice Alito's plurality opinion in McDonald listed the provisions of the Bill of Rights that had been incorporated with citations, while in footnote 13, Justice Alito listed the few remaining provisions not incorporated, also with citations.
Justice Alito's citation in footnote 14 of McDonald is to "Browning-Ferris Industries of Vt. v. Kelco Disposal (1989) (declining to decide whether the excessive-fines protection applies to the states)." Yet as the Indiana Supreme Court notes, in its 2001 opinion in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Court stated that the Fourteenth Amendment made the "Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States." The Indiana Supreme Court decided that the Cooper Industries statement was dicta and that the McDonald footnote omission of Cooper supported that conclusion ("we will not conclude lightly that the Supreme Court whiffed on the existence or meaning of its precedent").
Whatever the status of precedent, however, the Court is poised to resolve the question of the incorporation of the Excessive Fines Clause to the States. The amicus briefs tilt heavily in this direction. One possible wrinkle is the relationship between forfeiture and excessive fines, with the State of Indiana arguing that the issue is whether there is a right to proportionality in forfeiture proceedings that is sufficiently fundamental to meet the incorporation test (whether the right is deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty).
Friday, November 2, 2018
The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.
Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.
Tuesday, October 23, 2018
CFP from Journal of Civil Rights and Economic Development at St. John's University School of Law.
An America Divided: The Kavanaugh Nomination
The nomination and subsequent appointment of Brett Kavanaugh to the Supreme Court of the United States have sparked turmoil, outrage, and even more conflict to an already extremely divided America. Many agree, on the right and left, that the Senate hearings featuring Dr. Blasey Ford and Judge Brett Kavanaugh were historic, shocking and yet also affirming of deep-seated beliefs and fears. The hearings and subsequent events have revealed fundamental disagreement about fair and effective treatment of sexual violence survivors, about due process for those accused of sexual violence and about our collective expectations of the role, the demeanor, temperament and moral conduct of judges. . . .
We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays or commentaries. We aim to ensure an array of perspectives, methodologies and expertise.
Abstract Deadline: November 12, 2018
Selected Authors Notification Date: November 30, 2018
Final Manuscript Submission Deadline: January 15, 2019
full call and submission details here