first amendment – Page 2 – Prof. Zachary Wolfe, Esq.

February cases

February 14, 2019case suggestions

Tuesday, February 19

The only case scheduled for argument today is relatively technical but may be of interest to students of statutory construction or those interested in the patent law or the status of the Post Office. The Leahy-Smith America Invents Act (AIA) created a Patent Trial and Appeal Board with authority to review patents that were awarded by the Patent and Trademark Office if a “person” challenges the validity of the patent. Return Mail v. USPS asks whether the Postal Service is a “person” in this context. Royal Mail had its patent invalidated by a post-grant review initiated by the Post Office, and now asserts that the Board should never have conducted the review because the AIA did not define “person” to include government agencies and because the Dictionary Act, which provides definitions for laws that lack specific definitions, defines “person” to not include government agencies. However, the AIA also uses “person” in other contexts in which Congress clearly meant to include government agencies. So the case will offer an academically interesting battle of cannons of statutory construction, and will have implications for who can serve as a watchdog for invalid patents. (On the later point, the Electronic Frontier Foundation has an interesting amicus brief in support of the Post Office.)

(Since this is the only case today, it’s possible the argument will run a little longer than an hour, but I wouldn’t expect it to go more than a few minutes over. The Court had been scheduled to hear the dispute regarding discovery to uncover the true motive for adding a citizenship question to the next Census, but that was put on hold and may well be removed from the docket.)

Wednesday, February 20

The only case scheduled for today involves technology licenses that a debtor has rejected in a bankruptcy proceeding. Debtors are permitted to “reject” contracts in bankruptcy proceedings, but this has very different implications if it is a simple sales contract (in which case the debtor is liable for contract damages, ie any added expense the other party incurs as a result of having to find a different partner) or something like a contract that gives rights to use, or even exclusive rights to use, a piece of technology or trademark. It is a very technical area of the law and I would not recommend this case for a casual observer. But if interested, there’s a useful article about it on Scotusblog.

Monday, February 25

A really interesting case about the “state actor” test in the context of First Amendment rights and (a bit more obscurely!) public access television. The Constitution generally cannot be violated by private individuals or companies because it regulates only what the government may or may not do — but there are two significant qualifiers on that general rule. First, if the government creates and retains control over a private company, then the constitution applies. In Manhattan Community Access Corp. v. Halleck, the City created a private company that controls access to the public access cable channels but appoints only two of the thirteen board members. Second, the constitution might apply to private companies that perform a “traditional public function.” But that is a rather fraught doctrine (it’s been declared “in retreat” since the 1970s; and consider private prisons, for example, as one amicus brief in this case touches upon).

I think this should be a really interesting case to attend, but read this overview and get a sense of the arguments by reading at least a few of the filings. Notably, the Electronic Frontier Foundation filed an amicus brief in support of neither party, including a section “In Praise of Unmoderated Platforms” followed immediately by a section arguing that “Moderated Platforms Are Also Valuable.”

Tuesday, February 26

Both cases today involve interpretation of criminal law statutes. The first, US v. Haymond, involves sentencing based on facts that were not found beyond a reasonable doubt or by a jury. Haymond was convicted of possession of child pornography, served time, and then was released on probation subject to a requirement that he not commit another crime. He was then found to have been in possession of child pornography again, but this was determined by the judge alone and based on a “preponderance of the evidence” standard (more likely than not; not beyond a reasonable doubt). The court not only revoked his parole but sentenced him to an additional term of imprisonment. He argues this violates his rights to due process and trial by jury. There’s a useful discussion of these issues here.

The second case, Mont v. US, is a bit more technical, but certainly important. It involves how to count (or pause counting) the days that someone has to serve probation: “Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.”

Wednesday, February 27

This is an important day for people interested in religious liberty questions, and particularly the establishment clause. American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association involve cross-shaped memorials on public land.

Establishment clause doctrine has been criticized by all sides as unwieldy and unclear — we’re not even sure what the standards are, much less how to apply those standards in a given case. Some precedent says the primary concern is to avoid “excessive entanglement” of church and state, but it’s not always clear what is or isn’t excessive, and anyway, there are other cases that suggest we should be focused on different concerns. Two of the “questions presented” for today highlight this pretty clearly: “whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.”

Scotusblog has a helpful “In Plain English” article as well as some great posts from a variety of perspectives in an online symposium.

I would get there very early for this argument. Alternatively, forget about getting into the courtroom and just plan to take in the dueling demonstrations and press conferences that I’m sure will be taking place on the sidewalk in front of the Court. These usually start around 8am for drive-time radio coverage and keep going until a while after the lawyers exit the courthouse, which wil be around 11:30. The two cases are consolidated, with a total of 70 minutes scheduled for arguments (but they’re the only cases today so could run a few minutes over).

March cases

March 6, 2018case suggestions

In the last two weeks of March, the Court will hear an extremely important case involving First Amendment claims in the abortion context, another gerrymandering case, and other cases.

Tuesday, March 20

[Monday’s cases involve technical issues of limited interest or accessibility for the casual observer.]

Abortion is before the Court today, and this always draws a large line for the arguments and a spirited set of crowds out front. National Institute of Family and Life Advocates v. Becerra involves the California Reproductive FACT Act, which, briefly, requires licensed medical clinics to post information regarding free and low-cost abortion services available through the state and requires pregnancy counseling services that are not licensed medical centers to state in all advertising that they are not healthcare providers. The clinics claim this is a form of compelled speech that violates the First Amendment. California asserts that this falls within the scope of constitutionally permissible regulation of professional services, and is needed to inform women of available services and to prevent women from being confused as to the nature of the “clinic.”

Interestingly, in a number of states, the mandated speech goes the other way, requiring abortion clinics to post information designed to dissuade women from choosing to abort. There’s an interesting article in Slate exploring the problems that could arise for such laws if the clinics were to win this case. Scotusblog also offers a symposium of competing views. And, of course, there are a huge number of amici briefs.

The Solicitor General submitted an amicus brief supporting neither side. It then sought (and was granted) leave to participate in oral arguments, and both sides agreed to give up 5 minutes each. Very unusual!

The case is scheduled for the usual hour, but it is the only case on the docket today and will probably run a little long. Lines will form early–probably days early… But there will also be protests and press conferences happening out front, which are interesting to observe or join.

Wednesday, March 21

Upper Skagit Indian Tribe v. Lundgren is a technical issue of state court jurisdiction and tribal sovereignty. Briefly, both the Lundgrens and the tribe assert ownership over a strip of land. The Lundgrens brought suit to “quiet title” (have a court decide who has ownership) and the tribe asserted the state court had no jurisdiction over the dispute.

These arguments will be difficult to follow, but it is worth reading up on the case and attending if these issues interest you. A key concept is “in rem” jurisdiction — not jurisdiction over the party, but over a thing (in this case, not the tribe but a piece of land). Start with the overview here, then read the Washington Supreme Court decision, and then select some briefs to read as well.

Wednesday, March 28

[Monday’s and Tuesday’s cases are not recommended. However, Tuesday’s cases involve sentencing guidelines (Hughes and Koons); specific and technical issues regarding them, but still may be of interest to some.]

Partisan gerrymandering is once again before the court this morning. Benisek v. Lamone has been before the Supreme Court before; in 2015, the plaintiff won the right to a 3-judge panel, and now, the decision of that panel is up for review. The case involves the Maryland 6th, which had been a “safe” Republican seat until redistricting rendered it a “likely” Democratic seat. (Oyez overview; Common Cause fact sheet.) In addition to the links above, read at least a couple of the many briefs filed in the case before attending.

February cases

February 13, 2018case suggestions

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy. The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case. So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial. In this case, the defendant was accused of stealing guns. He had a prior felony conviction, so it would have been illegal for him to even possess the guns. With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.” The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury. The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges. The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct. Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty. He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights. The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].” It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.” A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported). He had a prior criminal history, which increases the sentence. However, the trial court counted a prior conviction for misdemeanor assault twice. The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.” In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient: “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union. But negotiating, administering, and enforcing a contract costs money. Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses. Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns). This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued. The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents. This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views. This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants. The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft. The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland. There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general. There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws. Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida. During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted. The transcript of an earlier meeting revealed a plan by council members to “intimidate” him. He sued, but lost the trial and sought a new trial on various grounds. The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims. See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky: “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.” Again, Scotusblog has a useful overview and interesting symposium.

January Cases

January 6, 2015case suggestions

January oral arguments include two First Amendment cases (determining whether a regulation is “content-based” and the constitutionality of restrictions on judges soliciting campaign contributions), two discrimination cases (the powers of the EEOC and whether disparate impact claims may be brought under the Fair Housing Act), government fraud, and whether police may extend a lawful traffic stop while they investigate a hunch for which they have no probable cause.

Monday, January 12

An important First Amendment question is presented in Reed v. Town of Gilbert, involving the line between content-based and content-neutral legislation. Many municipalities try to regulate signs posted in public view, apparently out of concern that outdated signs could clutter the community. Gilbert, Arizona, distinguishes among signs for specific events (which can only be posted for 12 hours before through 1 hour after the event), electoral campaign signs (which can be posted up to 60 days before and until 15 days after the election on which the candidate or ballot measure appears), and ideological signs (which can be left up indefinitely). The regulation is being challenged by the Good News Community Church, which wanted to advertise the hours and location of its services. The City did not fine them, but warned them that their signs were in violation because they were posted outside the window for signs involving specific events.
Doctrinally, since there is no indication that the church was being treated differently based on the religious content, the primary issue is whether this is a content-based restriction. As a general rule, government may not treat some speech differently than others because of the content of what is being communicated. This relates to but is broader than viewpoint discrimination, at least according to many advocates, because the goal is to prevent government from creating a hierarchy of speech. Nevertheless, the courts below upheld the legislation because there was no indication that it was designed to suppress discussion of any ideas or viewpoints. The Supreme Court will have to decide if the usual prohibition on content discrimination applies when government wants to make this sort of distinction among types of signs.

The second argument today is a more technical issue of regulation of the natural gas market. Nevertheless, if you’re attending the First Amendment case, you might consider staying for the second argument, so take a look at the Solicitor General’s brief to get a sense of the issues.

Tuesday, January 13

Kellogg Brown & Root Services v. U.S. ex rel. Carter is a little arcane, but may be of interest to some of you. The False Claims Act allows a private individual to file a lawsuit on behalf of the government if the U.S. has been defrauded; if successful, the “relator” (that’s the rel. in “U.S. ex rel. ___” in the case caption) gets to keep a portion of the funds. To get this benefit, you have to be the “first to file,” but in this case, another lawsuit had already been filed but was then dismissed on technical grounds. So the first question in this case is whether an individual can stand as the relator even if they weren’t “first,” if there nevertheless is no other pending lawsuit. Beyond that, the case was filed after the statute of limitations ran, but the Wartime Suspension of Limitations Act sets aside the statute of limitations for claims of fraud against the government when the U.S. “is at war.” So are we “at war” despite the lack of a declaration of war, and does that Act apply to private plaintiffs who are acting as relator in government fraud cases?

The Equal Employment Opportunity Commission (EEOC) investigates claims of unlawful discrimination. If it finds a violation, it is required to enter into mediation with the company before filing a lawsuit, but it apparently has complete discretion to accept or reject settlement, with no guidance or standards specified in the laws empowering the EEOC. Here, the company (which was accused of sex discrimination) argued that the filing of a federal lawsuit was improper because the earlier conciliation efforts were not pursued “in good faith” by the Commission. The trial court agreed, but the Circuit held that in the absence of legislative standards for what the Commission must do during conciliation, it would be improper for the courts to question the agency’s assertion that it had mediated in good faith. The case is Mach Mining v. EEOC.

[Cases on Wednesday are not recommended for the casual observer. The Court is closed on Monday the 19th in observance of Martin Luther King Day.]

Tuesday, January 20

The first case this morning, Armstrong v. Exceptional Child Center, Inc., involves the enforceability of the Medicare provision requiring providers to be reimbursed at rates that “bear reasonable relationship” to the costs. The provider documents cost increases, but the state refused to raise the reimbursement rate because of budget concerns. The law does not specify that the provider can sue over this, but the Ninth Circuit found an implied “private right of action,” which is a doctrine that the Court generally has been limiting in recent years. Arguments will be somewhat technical, but it’s an important issue. Read the summary here and follow the link for more.

An interesting case involving the First Amendment and judicial conduct is the second case to be argued today. Although federal judges are appointed for life, judges at all levels in many states must run for office in a general election; in fact, the great majority of states require at least some of their judges to be elected. To try to maintain judicial independence, a number of states have enacted laws or state bar rules of professional conduct that permit campaign committees for judges but prohibit the judge from personally soliciting contributions. But that is, of course, a direct restriction on speech. The case, Williams-Yulee v. Florida Bar, also will have implications for campaign finance laws beyond judicial elections.

Wednesday, January 21

It looks like the Supreme Court will at last decide whether or not “disparate impact” claims may be brought under the Fair Housing Act. The court had accepted two cases involving this issue earlier, back in 2011 and again earlier this term, but both settled before oral arguments. The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.” Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.” But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic? Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, involves the allocation of tax credits and the impact on housing voucher programs. Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers. The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers. This frustrated the community group that works for racial and socioeconomic integration, which filed suit alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods. Follow the link for a more thorough discussion of the case and importance of the disparate impact doctrine.

Today’s second case, Rodriguez v. US, involves dog-sniff searches after a traffic stop. The commands of the 4th Amendment mean that warrantless searches and seizures are suspect, but the Court has found that it is not unconstitutionally “unreasonable” for police to stop drivers without a warrant if they have probable cause that a crime is being committed. The question is whether police can continue to “seize” a driver after the officer has finished the stop that had probable cause (e.g., has or should have finished writing the speeding ticket) in order to do something like wait for a canine to arrive and search for drugs based on a “hunch” (not arising to probable cause). The Court has held that searches and questioning that prolong the driver’s time being held beyond what is needed for the crime that justified the stop initially are permissible, even without further probable cause, if the further invasion of liberty is “de minimis.” The result has been lower courts struggling to figure out how many minutes is de minimis and how many is too long to require a driver to wait while the officer seeks to satisfy a hunch. The Court is loathe to set arbitrary lines like number of minutes, so it will be interesting to see how it deals with the apparent need for a clear line; it has accepted cert. on the question of whether there even should be a “de minimis” exception to the probable cause requirement.