Tag Archives: First Amendment

Supreme Court Preview — Part 2 — December and January Arguments (?)

By tmess2 | Published September 22, 2024

In last week’s post, we covered the cases that already have argument dates scheduled for October and November.  In this week’s post, we cover cases which the Supreme Court accepted this past Spring.   As of today, the Supreme Court has not yet released its December argument schedule.  Thus, we do not know which of these cases will be heard in December and which might be held over for January.

The Supreme Court tends to schedule cases in the order in which they were accepted for review.  However, all of the cases that might be scheduled for December or January were accepted for review in the last three weeks of the old term (June 17, June 24, and July 2).   So this post will go in order by the date on which review was granted.

From June 17, only one case remains to be set for argument.  (The other cases will be heard in November.)  Kousisis vs. United States is a criminal case, but it implicates two issues of political significance.  The first is that this case is a fraud case involving government benefits.  The harm to the government is that the false statements allowed defendants to get a government contract over a potential alternative bidder.  But there is no indication that the defendants failed to properly fulfill the core of the contract.  In recent years, the Supreme Court has been pushing back against broad reading of fraud statutes and have not been inclined to allow charges based on noneconomic harm.  The second is that the fraud related to minority participation in the contract.  The business in its bid claimed to meet the goals for minority participation but, on closer analysis, the proposed minority participation was a mere shell to create the illusion of minority participation.  Again, the Supreme Court has been pushing back on such affirmative action programs in recent years.  This case presents another opportunity to minimize the role of attempts to assure minority businesses have the chance to participate in federal contracts. Continue Reading...

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The First Amendment and the Internet

By tmess2 | Published July 5, 2024

The last week of the Supreme Court term was an utter disaster for anybody believing in the rule of law.  I will get to the worst of the worst over the next week, but I am going to start with the cases that merely had ambiguous result.

The Supreme Court had two cases involving how the First Amendment applies to social media companies.  The first, Murthy vs. Missouri, involved whether governmental “jawboning” of social media companies to more closely control the content posted on their websites was improper coercion infringing on the First Amendment rights of users of those websites.  The second, Moody vs. NetChoice (and the companion case, NetChoice vs. Paxton — yes, that Paxton) involves the state laws of Florida and Texas that seek to regulate the ability of social media websites to edit their own content.

Starting with Murthy, this case was brought in the Western District of Louisiana.  While it was brought in a division that had multiple judges, they were all appointed by President Trump.  In other words, it was guaranteed to have a judge who was sympathetic to plaintiffs’ complaints.  The plaintiffs were a mix of private conspiracy theorists and the Republican Attorney Generals of Louisiana and Missouri.  The gist of their complaints was that various social media websites had removed or downgraded certain posts submitted by these individuals under those companies’ policies governing the content of posts.  These posts included misinformation about topics like COVID and the elections.  At the same time, certain officials in the federal government were reaching out to these companies to encourage them to take a more vigorous editorial control over the content of their websites to block such information.  Plaintiffs alleged that, even though these officials had no regulatory authority over these websites, just the fact that the federal government was raising these issues with these companies was coercive and that the various websites took adverse actions with regards to the individuals posts. Continue Reading...

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Supreme Court Miscellaneous — First Amendment, Marriage, and Immigration

By tmess2 | Published June 24, 2024

Because the Supreme Court has a self-imposed deadline for getting opinions done (which is sort of a good thing or otherwise you could have an extended back and forth between the majority and the dissent on major cases), the end of the term sees a lot of cases handed down at roughly the same time.  And that means that some important cases get lost in the shuffle behind the very important cases.

This week, we had nine opinions over two days (and we are likely to get twelve opinions over three days at the end of the week).  Yesterday I posted about the latest Second Amendment case and about a constitutional taxation case (which we almost never get).  In the absence of a big political issue, I avoid commenting on the criminal law cases and we had four criminal law cases that matter greatly to those of us who handle these cases), and the periodic dispute over water rights case between states (of which we had one this week) are usually highly fact specific with little impact other than which state is getting screwed.

That leaves two other cases of interest.  The first one is a Section 1983 case.  Section 1983 is one of those statutes enacted under Section 5 of the Fourteenth Amendment, and it gives private individuals the right to sue government employees who violate the plaintiff’s constitutional rights.  Most of the cases that make it to the Supreme Court arise in the context of police actions — allegedly unlawful searches, unlawful arrests, unlawful detentions, police brutality.  For arrests and detentions, the Supreme Court has long applied an objective test.  If there was probable cause to arrest, that defeats the claim regardless of the motivation of the officer.  The Supreme Court has recognized a limited exception when the alleged motivation is the exercise of First Amendment rights by the Plaintiff.  In that circumstance, the question becomes whether the plaintiff can show that, but for, the protected conduct of the Plaintiff, no arrest would have been made. Continue Reading...

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No Trademark for “Trump Too Small”

By tmess2 | Published June 16, 2024

U.S. law creates three basic types of “intellectual property” rights.  A patent gives an inventor the exclusive right to make the product that he invented (which most people then sell to others or grant others license to develop that product).  A copyright gives an author, musician or film producer control over the work that she has created and prevents others from making copies of that work for sale.  Finally, a trademark gives an individual control over a name or design.

Trademark law includes several provisions preventing inappropriate trademarks.  And, in recent years, the U.S. Supreme Court has held that some of those provisions are invalid because they are attempts to restrict certain viewpoints (e.g., offensive names) and deny such viewpoints the protection of copyright law in violation of the First Amendment.  This week, the U.S. Supreme Court issued an opinion in Vidal vs. Elster.  This case involves the provision of copyright law that prohibits the creation of a copyright in a person’s name without that person’s consent.  Applicant wanted to trademark the slogan “Trump too small” for use on articles of clothing but his request was denied under this provision.  He challenged this decision asserting that this provision also violates the First Amendment

In this case that was argued in November, the Supreme Court this week unanimously agreed that the federal agency which reviews such applications properly denied the application under that provision as that provision did not violate the First Amendment.  But there was significant disagreement about the justices about why this provision did not violate the First Amendment.  While Justice Thomas wrote the lead opinion, there were three separate opinions written by Justice Kavanaugh (joined by Chief Justice Roberts), Justice Barrett (joined by Justice Kagan), and Justice Sotomayor (joined by Justice Kagan and Justice Jackson).  The main disagreement, which got a little bit heated, was over Justice Thomas misusing isolated historical examples to show that this limited restriction on speech was justified by the traditional approach to trademark and thus was a trademark-specific exception to the First Amendment.   Justice Barrett, Justice Kagan, Justice Sotomayor, and Justice Jackson would find “viewpoint neutral” as functionally equivalent to the established doctrine of content-neutrality as trademarks are inherently based on content an approach that also draws in part on the rules that apply to limited public forums.  Thus, they would uphold any trademark rule which applied equally to certain content regardless of the viewpoint expressed but would reject a rule which examined whether the content was positive or negative.  Justice Kavanaugh and Chief Justice Roberts do not see the need to address this viewpoint-neutrality test at the present time but express openness to that test.  Justice Sotomayor, Justice Kagan, and Justice Jackson also disagree with the recent cases because they find that trademark protection is a government benefit and the government need not be content-neutral when awarding benefits. Continue Reading...

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Supreme Court — The NRA case

By tmess2 | Published June 2, 2024

This past week, the U.S. Supreme Court issued an opinion in NRA vs. Vullo.  This case involves a claim that a New York state financial regulator threatened banks and insurance companies with investigation if they did not cease ties with the NRA.  The essence of the claim is that this threat was improper and was intended to coerce these companies to stop dealing with the NRA and was done in an attempt to suppress the NRA’s constitutionally-protected speech.  In a 9-0 decision by Justice Sotomayor (which could be her last majority opinion of the term) with two concurrences, the Supreme Court reinstated this claim.

There was a second case argued that day, Murthy v. Missouri, which involves more indirect claims of coercion.  The Supreme Court did not consolidate these two cases into one opinion, and (at least so far) it did not issue a per curiam opinion directing the lower to court to reconsider Murthy in light of Vullo.  As such, particularly in light of the concurrences in Vullo, it seems that, at least, some of the justices see factual distinctions between the two cases (as they should).  Until the Supreme Court issues the decision in Murthy, it will not be clear where the Supreme Court is drawing the line between persuasion/encouragement and coercion.  As such, I will not be commenting on the rule established by this case.  Instead, I am going to focus on the procedural aspects of this case.

The key procedural feature is this case is that it arises from a motion to dismiss.  A motion to dismiss is a common practice in civil cases.  (Motions to dismiss are less common in criminal cases because many states have standard form charges.)  A civil case begins with a plaintiff filing an initial pleading.  That pleading is required to set forth enough information to demonstrate that they have a legally-recognized claim for relief.  Some jurisdictions require more detailed facts than others, but the general rule is that the plaintiff must plead enough facts to demonstrate that the defendant(s) have harmed the plaintiff in a way that allows the plaintiff to seek redress from the court.  In theory, by signing this pleading, the attorney for the plaintiff is representing to the court that the attorney believes that they can prove the allegation (either currently have the evidence supporting the claim or have a reason to believe that they will be able to obtain that evidence through the jurisdiction’s discovery process). Continue Reading...

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Ballot Access 2024

By tmess2 | Published April 21, 2024

In a completely shocking turn of events, some states (primarily those with a Republican Secretary of State) seem to be about to deny the Democratic ticket its place on the ballot.  The issue is that every state has a deadline for established parties to certify their presidential ticket to the state election authority.  Ohio is the earliest with a deadline ninety days before the election.  (Depending on the year, that deadline falls between August 4 and August 10.)  By contrast, Alaska’s deadline is forty-eight days before the election (with the deadline falling between September 15 and September 21).

The early deadlines are problematic because they ignore the informal traditions about the scheduling of the conventions and the real world.  The big real world issue which impacts the scheduling of the conventions is the Summer Olympics.  Barring cancellation or postponement (like happened in 2020), the Summer Olympics are always in the Summer of the presidential election year.  Simply put, the political parties want their convention to dominate the news and for all eyeballs to be glued to their convention.  (Of course, as the current nomination system has drained conventions of almost all of the drama, getting people to watch the convention is harder, but the parties do not want to compete with the Summer Olympics for viewers.)  And, over the years, the Olympics have expanded.  This year, the Paris Olympics runs from Wednesday, July 24 through Sunday August 11.  In practical terms, that means that the last potential week for a July convention is the week of July 15.  And, if you want some news coverage during the week leading into the convention, the first potential week for an August convention is the week of August 19.  Going back to 1992, the dates of the Summer Olympics has been:  1992 Olympics — July 25-August 9; 1996 Olympics — July 19-August 4; 2000 Olympics (held in Southern Hemisphere) — September 15-October 1; 2004 Olympics — August 13-29; 2008 — August 8-24; 2012 — July 27-August 12; 2016 — August 5-21; 2020 Olympics (original scheduled dates) — July 24 through August 9.   The other big world impact is that most states now use primaries to award delegates with the last primaries taking place in early June.  That makes it almost impossible for a major party to move its convention before July.

Turning to the informal traditions, the party out of power normally goes first.  The last time that the party in power went first was 1932.  (Prior to World War 2, the Republicans normally went first, but in 1956 (the first time that Republicans were in power after World War 2), the Republicans opted to go after the Democrats, and the tradition of flipping sequence based on which party held the White House has been followed ever since.  The dates for the party out of power since 1992 have been:  1992 — July 13-16 (Democrats/ending before Summer Olympics); 1996 — August 12-15 (Republicans/ starting 8 days after Summer Olympics); 2000 — July 31-August 3 (Republican/Summer Olympics not an issue); 2004 — July 26-29 (Democrats/ending before Summer Olympics); 2008 — August 25-28 (Democrats/starting 1 day after Summer Olympics); 2012 — August 27-30 (Republicans/starting 15 days after the Summer Olympics); 2016 — July 18-21 (Republicans/ending before Summer Olympics); 2020 — July 13-16 (originally scheduled)/August 17-20 (actual dates) (Democrats/ original schedule before Summer Olympics).  In other words, in the previous eight election cycles, the party out of power has held their convention “too late” to comply with the Ohio statute four times out of eight (three times if you use the original date).  The dates for the party in power since 1992 have been: 1992 — August 17-20 (Republicans/starting 8 days after Summer Olympics); 1996 — August 26-29 (Democrats/2 weeks after Republicans); 2000 — August 14-17 (Democrats/2 weeks after Republicans/Summer Olympics not an issue); 2004 — August 30-September 2 (Republicans/1 day after Summer Olympics); 2008 — September 1-4 (Republicans/week after Democrats); 2012 — September 4-6 (Democrats/week after Republicans); 2016 — July 25-28/week after Republicans/before Summer Olympics); 2020 — August 24-27 (Republicans/originally 15 days after Summer Olympics).  In short, the only time in the past 32 years in which the party in power held their convention before Ohio’s deadline was 2016 when the Olympics did not start until August. Continue Reading...

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Persuasion vs. Coercion

By tmess2 | Published March 24, 2024

Sometimes, the U.S. Supreme Court will schedule arguments to create a “theme” day.  In other words, the Court will schedule two cases which are technically unrelated but involve similar issues.  By hearing arguments in the two cases back-to-back, the Justices get two factually different pictures of conduct to point out some of the different ways that the issue might arise and, hopefully, can get some input through both cases on how a particular test for judging whether conduct crossed the line would play out.

This week, we had one of those theme days involving when governmental conduct indirectly infringes on the First Amendment.  The first case, Murthy, Surgeon General, vs. Missouri, arises from the efforts of the Surgeon General’s Office to talk with social media companies about posts containing medically harmful information related to COVID.  The nutty Attorney Generals from Louisiana and Missouri (which at that time was now Senator Eric Schmitt) filed a lawsuit in front of a handpicked judge in the Western District of Louisiana seeking an injunction barring all communications between federal officials and social media companies.  That “judge” granted that request.  The Fifth Circuit narrowed the injunction somewhat but left it substantially intact.   The other case, National Rifle Association vs. Vullo, involves a state financial services regulator trying to persuade regulated entities (banks and insurance companies) that they should stop doing business with the NRA.

What seems to be clear from the arguments in these two cases is that the Supreme Court is likely to make a distinction between persuasion and coercion.  In asking questions, several justices fell back on their own executive branch experience.  In traditional media, it is not unusual for reporters to call government officials asking for comments on a potential story.  In some cases, the story is one that, for a variety of reasons, the government official might prefer that the story not get published (or at least that certain details not run).  Sometimes those reasons are good reasons like in a murder investigation somebody might have leaked a key detail from the crime scene to a reporter which the police were intending to use as a “false confession check” (on the theory that only the killer would know that detail so any nut coming in to take credit for something they did not do would get that detail wrong).  But those reasons might not be strong enough for the government to seek a court order preventing publication.  So the government will try to convince the news media that it would be best if that information was not included in the story.  In making this request, the government might offer a “comp” like an exclusive interview with the police chief on some other topic.  It seems like, in the Murthy case, the Supreme Court is likely to slap the lower court and the state AGs hard for what is really a legally meritless argument.  There is really nothing here suggesting that these claims involve anything beyond routine attempts to persuade media to go with the official story.  And the First Amendment does not prohibit the government from trying to convince publishers to do the right thing. Continue Reading...

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Social Media and the Supreme Court — Round 1

By tmess2 | Published March 18, 2024

One of the downsides of the legal system is that the final say on how laws apply to new technologies tend to fall on a group of older lawyers.  In other words, most of the votes are in the hands of people who are not on the cutting edge of technology.  This year, there will be several cases before the Supreme Court involving social media.  To put things in perspective, the four youngest justices essentially went to law school either while I was going to law school or right after I went to law school.  At the time that I was in law school, most students did not have e-mail accounts, and we were using very early versions of Word and WordPerfect as our software for writing papers and exams.  Needless to say, sites like Facebook and X were not part of our law school and college experiences.

This past week, we got the first of the social media cases for the year — actually two separate cases raising the same issue — whether a public official can block individuals from commenting on the official’s social media webpages.  When faced with novel issues, judges tend to try to fall back on existing legal doctrines even if that means forcing round pegs into square holes.  And to a some extent that is what we got in the lead case — Lindke vs. Freed in an actual unanimous opinoin written by Justice Barrett.

The basic facts of this case is that the webpage in question was the personal account of the public official.  The official had this account before running for and winning his current position.  However, he does not his public position on the account similar to how many people not their employment.  And he does use his webpage to mention what is going on with that position.  The people on the other side of this case took advantage of the comment feature of the webpage to critique what the city government was doing.  The public official deleted some comments that he thought were inappropriate or inaccurate before eventually blocking these individuals from commenting.  The people who were blocked brought a case claiming that, by blocking them, this official was violating their First Amendment rights. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 3

By tmess2 | Published September 24, 2023

In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline.  The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year.  Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted.  But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review.  So any discussion of what cases might get full review is very, very speculative.

Now, we know that some cases will technically be heard.  There is a very limited category of cases that have direct appeals to the U.S.  Supreme Court.  But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases.  Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties.  For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation.  The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.

So what seems likely?  The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit.  There are two reasons for this.  First, these circuits are just big.  The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington).  The Fifth is not as big geographically but it does include Texas.  Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case.  So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court. Continue Reading...

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Supreme Court October Term 2021 Preview — Part I

By tmess2 | Published September 19, 2021

Once again, it’s that time of year.  Every year, the Supreme Court starts a new term on the first Monday in October.  This is the first full term for the new alignment of justices.  While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right,  Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.

As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions).  In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday.  The same thing occurs in Week 2.  In Week 3, there is an order list issued on Monday.  Finally, in Week 4, the Supreme Court meets in a conference on Friday.  At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases.  Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion.  Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision).  (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference.  If no justice believes that an application should be granted, it is denied.)  During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs).   The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari.  As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status).  In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue.  While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter).   If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments.    The Supreme Court calendar features seven argument sessions.  After the last argument session, May and June are spent finalizing the remaining opinions from the year.  After the Supreme Court releases its last opinion, they recess for the summer.  Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).

As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days).  On a typical day, there are two arguments (of approximately one hour each) in the morning.  Rarely, there are additional afternoon arguments.  More often, there is only one argument on a day.  The argument docket for a month tends to be released approximately two months prior to the argument.    There are currently nine cases set for October and nine cases set for November. Continue Reading...

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