The next block of arguments include cases on asset forfeiture, First Amendment requirements for social media accounts of government officials, the ability to trademark “Trump Too Small,” and whether the Second Amendment allows the government to prohibit possession of firearms by persons subject to domestic-violence restraining orders.
Monday, October 30
Today is an asset forfeiture case and specifically a question of procedural due process. In Culley v. Marshall, Culley’s son was driving her car when police caught him with drugs and drug paraphernalia and seized the car. Twenty months later, the court ordered the car returned to Cully pursuant to Alabama’s “innocent-owner defense.” (Facts summarized on Oyez.) She later sued, alleging that the delay constituted a due process violation. Both lower courts ruled against her and the Court has accepted review on “What test must a district court apply when determining whether and when a post-deprivation hearing is required under the Due Process Clause?” Asset forfeiture is a subject of intense public attention from time to time, but with many outstanding issues. The list of amici supporting Culley (light green on this link) make for some unusual bedfellows!
Just one case today.
Tuesday, October 31
Halloween has a pair of cases on First Amendment issues involving social media accounts and whether public officials can block constituents from posting comments. Lindke v. Freed involves a city manager who was sued for blocking someone who had left comments on his personal Facebook account (relating to his handling of COVID issues). He won at the 6th Circuit, which held that the First Amendment did not apply where the Facebook page was not part of Lindke’s official duties. O’Connor-Ratcliff v. Garnier involves two school board members who created Facebook and Twitter accounts for their campaigns and later updated them with their elected titles and used the pages to communicate about school district business. This time, the 9th Circuit found that these pages were subject to the First Amendment and the board members had violated the rights of residents they blocked. Amy Howe has a useful overview of the legal issues. Also, it’s notable that Netchoice has filed an amicus brief; this is the organization challenging Texas and Florida laws regulating social media companies (on which the Court recently granted cert. – more later!)
Expect argument in these cases to run long; I’m guessing at least 3 hours, maybe 4. The cases have not been consolidated for oral argument (the only two-argument day this block), plus the Solicitor General is participating in both cases. After the time is up for each arguing counsel, the Justices now each get an additional round of questioning (in order of seniority), which makes for a significant amount of time after the “argument clock” has expired. And today, that will be times 6 arguing counsel (petitioner, respondent, and Solicitor General, times two cases).
Wednesday, November 1
Does the First Amendment require the government to register a trademark of “Trump Too Small”? The law prohibits the Patent and Trademark Office from registering a mark containing a living person’s name without that person’s consent. 15 U.S.C. § 1052(c). But the Federal Circuit held that the First Amendment did not allow enforcement of that bar under these specific circumstances. There may be a substantial governmental interest in protecting private parties from having others trademark their names in most circumstances, but not when it is a criticism of a public official: “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.” Interestingly, Public Citizen filed an amicus brief opposing registration, explaining that “registration would allow him to seek to prevent other members of the public from promoting their shared political antagonism using the same or similar words on shirts offered for sale.”
This is the only case set for argument today.
Monday, November 6
Today is an unusual issue of sovereign immunity under the Fair Credit Reporting Act. In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Kirtz sued the USDA for damaging his credit when it reported his account past-due even though it was paid off. In most cases, the federal government is immune from suit unless Congress has “unequivocally and unambiguously” waived immunity. The Fair Credit Reporting Act governs “persons” that it defines to include any “government or governmental subdivision or agency.” 15 U.S.C. § 1681a. The Third Circuit held that this was enough; “FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government.” In so holding, the court acknowledged that “the [other] Courts of Appeals to have considered this issue are split down the middle.”
Tuesday, November 7
An extremely important Second Amendment case today: “Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” The Fifth Circuit noted that “Rahimi was involved in five shootings in and around Arlington” in just two months, but nevertheless held that the law cannot survive the new standard announced in Bruen last year, that the law must be “consistent with the Nation’s historical tradition of firearm regulation.” This is obviously a very contentious issue and much has been written so I won’t add more except to recommend Amy Howe’s explainer and call attention to the perspective of March For Our Lives in its amicus brief.
I would expect long and early lines for this argument. See my lines info post.
Wednesday, November 8
The final case in this block of arguments, as Oyez explains, “involves the interpretation of education benefits under two different programs for veterans.” It is quite technical and fact-specific, so see their explainer for more.
The next block of arguments starts November 27.