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Uzuegbunam v. Preczewski (Argument Jan. 12, 2020)

Argument: January 12, 2020

Decision: TBD

Petitioner Brief: Chike Uzuegbunam, et al.

Respondent Brief: Stanley Preczewski, et al.

Opinion Below: Eleventh Circuit Court of Appeals

Student Wants Nominal Relief From College For Restrictive Speech Policies 

Chike Uzuegbunam, a college student at Georgia Gwinnett College, was handing out leaflets relating to his religious beliefs at an outdoor plaza on the college campus. Campus Police approached him and said he wasn’t allowed to distribute the materials there. Uzuegbunam would have to go to one of two designated “speech zones” to do that. And those zones usually had to be reserved in advance.

So Uzuegbunam reserved one of them. He went about his expressive activities at his reserved spot. Campus Police came along again. The officer said the police received calls about Uzuegbunam’s activities. Uzuegbunam had not reserved for “open air speaking,” so the police issued him a warning that he was in violation of the school policies and must stop.

The Lawsuit

Uzuegbunam stopped. And then he sued. He alleged the school’s speech and expression policies violated his First Amendment rights. They were too restrictive. Uzuegbunam asked the court to issue declarative injunctions that the school’s policies violate the Constitution. He asked the court to enjoin the school from enforcing the policies. He asked for nominal damages for having dealt with the wrongful policies. 

Before the case was tried, the school gave in. The school changed the policies and resolved the issues Uzuegbunam complained of. 

Article III and Mootness

Federal courts don’t take theoretical cases. They only take cases that need resolution. That’s what it says in Article III of the Constitution. No “moot” cases.

Now that the school removed the policies at issue in this case, it would seem the case doesn’t need resolution anymore. Unless Uzuegbunam had suffered some injury and needed monetary relief. 

However Uzuegbunam didn’t properly ask for compensatory damages. He only asked for nominal damages in the case. Nominal is barely real, right? But are nominal damages enough to keep a case from being moot? That’s the question in this case.

Can Nominal Damages Keep The Case Alive?

The lower court ruled that the case is “moot” (must be dismissed) because a claim for nominal damages is not adequate for the case to be a real “case or controversy” under Article III. The lower court said that if Uzuegbunam had properly requested (and was seeking to prove) compensatory damages, or more substantial monetary relief, based on the harm he experienced, then the case would still be heard. Nominal damages could piggy-back off the request for compensatory damages. But a request for nominal damages alone cannot keep a case alive.

Uzuegbunam’s Argument

On appeal, Uzuegbunam argues that a federal court can still hear a case just to provide nominal damages. According to Uzuegbunam, Article III only requires that a case must be able to provide a remedy, and nominal damages is a remedy because it is “effectual relief.”

A case is moot only when it is impossible for a court to grant any effectual relief. Damages claims—including claims for nominal damages—offer effectual relief: they remedy past injuries and permanently alter the parties’ relationship. And no prospective change to a defendant’s policies or conduct can remedy or undo past, completed injuries. 

Uzuegbunam points out Supreme Court precedent purporting to show that a nominal damages award changes the “the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby (1992). Uzuegbunam distinguishes a nominal damages award from a declaratory judgement, stating that nominal damages are retrospective relief, like compensatory damages. A plaintiff seeking nominal damages is seeking relief from a past wrong, which is not erased just because the defendant stopped the action. 

Georgia Gwinnett College’s Argument

Georgia Gwinnett College argues that the case must be dismissed because a court cannot hear it with only a nominal damages claim. The only way a nominal damages-only case can be heard, according to the college, is if the plaintiffs are at risk of continued harm or if the defendants could repeat the same actions complained of in the case. In this case, however, the college points out that it has “permanently” revised its free speech policies. The plaintiff is not at risk of future harm; the issues have been resolved; and thus the case is moot.

The college presents its view that a nominal damage award is merely a symbol attached to a judgement that otherwise doesn’t get monetary relief. It’s not a compensation for damage at all; it’s a complement to a judgement. Given this view, if the court is not already granting a judgment, the request for nominal damages cannot get the claim into court on its own.

The Ruling Will Determine Accountability For Government Action

This case presents an important issue: If the government decides to change a policy only after being sued, does that provide a “get out of jail free” card for past wrongs? Often litigants bring important cases, not asking for monetary relief, but to get the government to change its ways. If the government changes its ways before a court issues a ruling of illegality, then the government has avoided the judgement -- and the parties don’t get to rely on a court ruling to cement their view.

On the other hand, if a court is still willing to grant the judgement (based on a mere nominal damages claim, for example), then the court issues precedent that the government action is wrong. And it gives relief in the form of satisfaction to the parties who spent their effort to bring the case and to protect the rights of many. 

However, as Georgia Gwinnett College points out in its brief, the point of the “mootness” doctrine is to keep courts from granting “advisory opinions.” It’s not a court’s job to go around issuing statements on what actions are wrong - not unless there’s a live case or controversy, one in need of relief. This case is an important one to decide the boundaries of the mootness rule.

The Supreme Court will hear arguments on January 12, 2021.

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Facebook v. Duguid (Argument December 8, 2020)

Argument: December 8, 2020

Decision: TBA

Petitioner Brief: Facebook

Respondent Brief: Noah Duguid

Opinion Below: Ninth Circuit Court of Appeals

Ninth Circuit

 Facebook Seeks to Dodge Abusive Texting Claims

Facebook knows a lot about us. It’s fair to say that Facebook could use our personal information to make abusive auto-calls and texts if it so desired. . . and if the law did not prevent it from doing so. This case is about whether Facebook’s auto-texting system is regulated under the Telephone Consumer Protection Act, a law designed to prevent abusive auto-calls and texts.

Noah Duguid is not a Facebook user. Never signed up for Facebook. Never entered his contact information to Facebook. Nevertheless, somehow Facebook got Duguid’s number into its auto-text system and kept sending him text messages that his (nonexistent) account was accessed from an unauthorized device.  

Duguid tried to get the messages to stop by responding to the text and by sending emails. He got auto-responses. First, Facebook’s system told him that the messaging was turned off, but it wasn’t. He also received auto-responses telling him to log-on to his account to deal with it. Obviously, Duguid had no account, so he was further frustrated. The messages kept coming.

Finally Duguid filed a lawsuit against Facebook, claiming a violation of the Telephone Consumer Protection Act.

The Telephone Consumer Protection Act

Congress passed the Telephone Consumer Protection Act (TCPA) in 1991 to protect Americans against unwanted telemarketing calls. At the time, robocalls were driving people crazy. Marketers used machines that auto-generated numbers or called blocks of sequential numbers to harass people. The problem was serious with sequential blocks because a marketer could hijack all of the lines of an emergency service or a business. 

The TCPA dealt with the problem by banning two types of unwanted calls: 1) robocalls made with an “automatic telephone dialing system” (ATDS) and 2) robocalls made with an artificial or prerecorded voice. 

The law does not cover calls to which the consumer “consents,” and the Act defines consent broadly: we consent if we give our number in a business transaction. In __ the ___ expanded the Act’s coverage to include robo-texts in addition to calls.

What Is An “Automatic Telephone Dialing System”?

The TCPA defines an “automatic telephone dialing system” as a device with the “capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 

The question in this case: does the part requiring a “random or sequential number generator” apply to both a device that stores and a device that produces numbers to be called? Or does it apply only to the device that produces numbers to be called. 

Does it really make sense that a device would store numbers using a random number generator? Generating is producing. So although the grammatical construction of the phrase makes it seem to apply to both storing and producing, the logic doesn’t work that way.

The Arguments

Facebook wants the number generator requirement to apply to storing. Because otherwise, a device that merely stores phone numbers and can dial them is covered by the TCPA. Facebook points out that your cell phone would qualify if that’s the interpretation. And, according to Facebook, that definition would be overbroad, making a person liable under the Act for sending a chain text message to a group of friends. That interpretation would cause a mass of unintended litigation, which Congress did not intend when it passed the TCPA in 1991.

Duguid argues that the number generator phrasing cannot apply to a device that stores information because you can’t store numbers using a random or sequential number generator. The Act thus covers devices that store numbers to be called; and produces numbers to be called, using a random or sequential number generator. 

Duguid argues that Facebook’s narrow interpretation of ATDS would lead to a reemergence of unwanted and harassing robocalls and texts - precisely the type that Congress enacted the TCPA to stop. Today, Duguid explains, marketers are not relying on random number generating to harass people. They are using stored lists of numbers. In fact, number generating robo-calling machines are becoming obsolete. Requiring number generators to be employed by the calling device is not supported by the phrasing of the definition; and it does not make sense in light of the point of the TCPA.

The Supreme Court will hear arguments on December 8, 2020.

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Nestle v. Doe (Argument December 1, 2020)

Argument: December 1, 2020

Decision: TBA

Petitioner Briefs: Nestle USA; Cargill

Respondent Briefs: Doe, et al. (response to Nestle); Doe, et al. (response to Cargill)

Opinion Below: Ninth Circuit Court of Appeals

Ninth Circuit

 Nestle and Cargill Sued Over Child Slavery in the Ivory Coast; Ask Supreme Court For Jurisdictional Escape

Six former child slaves sued Nestle USA and Cargill alleging their complicity in human rights abuses in the Ivory Coast. The children are citizens of Mali who were trafficked and enslaved as workers on cocoa plantations in the Ivory Coast. From the plaintiffs’ briefing:

Between the ages of twelve and fourteen Respondents were forced to work on Ivorian cocoa farms for twelve to fourteen hours per day, at least six days per week. They were not paid and were given only scraps of food to eat. Respondents were beaten with whips and tree branches when their overseers felt that they were not working quickly enough. They were forced to sleep on dirt floors in small, locked shacks with other children, and were guarded by men with guns to prevent them from escaping. 

Nestle USA and Cargill don’t own the plantations. They don’t employ any of the individuals who abused the plaintiffs. But the plaintiffs allege the U.S. companies — through their buying power and their high-level control over the operations on the plantations — “aided and abetted” the abuses against the plaintiffs. 

The plaintiffs brought suits against Nestle and Cargill for “aiding and abetting” the child slavery and related human rights abuses of the plaintiffs.

The Alien Tort Statute

Congress passed the Alien Tort Statute in the nation’s early years to address some tiffs between foreigners on American soil. In one instance, a French adventurer assaulted a French diplomat in Philadelphia. And in another, a New York constable went into a Dutch diplomat’s home and arrested a servant. 

At the time, federal courts did not have jurisdiction to hear suits from foreigners. State courts did, but because diplomats were involved, the issues were of national importance. The federal government found itself embarrassed without a federal venue for foreigners to bring suits.

Congress passed the Alien Tort Statute in 1789 to give federal court jurisdiction to suits by foreigners for violations of international law. The violations must have a sufficient connection to the United States, an aspect which wasn’t an issue in the early years. In fact, the law was dormant for over a century, until 1980. Since then, the Supreme Court has addressed the types of disputes which people can bring under the bizarre law. 

Modern Supreme Court Rulings on the Alien Tort Statute

In recent years, the Supreme Court has told us: 

1) The ATS is for certain types of suit only (violations of safe conducts, infringement on the rights of ambassadors, piracy, and violations of the “present-day law of nations”). Sosa v. Alvarez-Machain (2004).

2) The ATS does not apply if the actions at issue happened entirely in foreign territory (the “presumption against extraterritoriality”). Kiobel v. Royal Dutch Petroleum (2013). 

3) A person cannot use the ATS to sue a foreign corporation. Jesner v. Arab Bank (2018).

This case will urge the court to expand on what the ATS requires in terms of the U.S. connection. And whether someone can use the ATS to sue a domestic corporation.

Facts of the Case

The plaintiffs suffered grave human rights abuses from individuals operating cocoa plantations in the Ivory Coast. As children, they were forced to work; they were not paid; barely fed; whipped and otherwise physically abused; forced to sleep on dirt floors; and prevented from escaping. 

Relevant to this case is to what extent the U.S. companies were responsible for the abuses. Specifically, what actions did the U.S. companies take -- actions that were done or controlled by its U.S. operations -- that could subject the companies to suit under the ATS?

The defendants paint a different picture about their connectedness to the Ivorian plantations than the scene alleged by the plaintiffs. According to the Nestle and Cargill (Petitioners in the Supreme Court), they are merely cocoa purchasers. They don’t control what’s happening at the farms and don’t have much knowledge about it.

The plaintiffs, however, tell a different story. For example, alleging Nestle’s role: 

Petitioner [Nestle] had specific knowledge of the use of child slaves and the horrific conditions they endure on Ivorian cocoa plantations through Nestlé USA staff visits to plantations and widely circulated reports. From the United States, Petitioner had complete control over the farms’ labor practices, knew “that the farmers they were assisting were using and continued to use forced child labor,” and purposefully relied on the enslavement of children to increase profits by ensuring the flow of cheap cocoa.

Have the defendants engaged in sufficient U.S.-connected actions tying them to the human rights abuses at the plantations in the Ivory Coast? The ATS requires that the claims in the case “touch and concern” U.S. territory with “sufficient force” (Kiobel).

The “Touch and Concern” Test

Are the claims in the case sufficiently connected to the United States? Kiobel is the most recent Supreme Court case addressing the question.

In Kiobel, the Court rejected ATS claims by Nigerian nationals because the actions in issue happened entirely on foreign territory. In the case, a group of Nigerian nationals sued Nigerian, Dutch and British oil companies alleging complicity in (“aiding and abetting”) human rights abuses of the Nigerian government.

The Court said that to overcome the presumption against extraterritoriality, the claims must “touch and concern” the territory of the United States, and they must do so with “sufficient force to displace the presumption against extraterritorial application.” The Court didn’t clarify “sufficient force,” but it did state that the mere corporate presence doesn't suffice.

In this case, the plaintiffs are alleging more than mere corporate presence. It’s not just that Nestle and Cargill have presences in the U.S. According to the plaintiffs, the companies’ corporate headquarters undertook actions to approve of and support the human rights abuses at the plantations. Even though all of the physical abuse happened in the Ivory Coast, the defendants merely “outsourced” it through their U.S. operations. 

Suing a Domestic Corporation Under the ATS

The other question in the case is whether the ATS allows suits against domestic corporations. 

The Supreme Court clarified in 2018 that the ATS does not allow suits against foreign corporations (Jesner). The ATS is meant to resolve potential issues of foreign diplomacy, and pulling a foreign corporation into a U.S. court may do the opposite. 

In this case Petitioners ask the Court to determine whether Congress intended for the ATS to pull domestic corporations into court.

The Supreme Court will hear arguments on December 1, 2020.

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Trump v. New York (Argument November 30, 2020)

Argument: November 30, 2020

Decision: TBA

Petitioner Brief: Trump, et al.

Respondent Brief: New York, et al.

Respondent Brief: New York Immigrant Coalition, et al.

Opinion Below: Southern District of New York

 Can Trump Re-Tabulate The Census to Exclude Undocumented People From House Apportionment?

Every ten years the federal government counts the number of people living in the country, state by state. That’s the census. The government uses the census results to determine how many seats each state gets in the House of Representatives.

The population count is used for a number of other purposes too, like for allocating federal grant money, drawing state political districts, and state and local planning purposes, among others.

Traditionally, the census count has included people regardless of immigration status. Thus, undocumented immigrants are counted. The Trump administration tried before to get information on citizenship through the official census count for 2020, but he lost that battle in the Supreme Court. The plaintiffs in that case alleged Trump’s attempt to add a citizenship question to the census was meant to discourage people in immigrant communities from responding to the census.

This case is about Trump’s work-around attempt to exclude undocumented immigrants from the count for House apportionment.

The Trump Memo

On July 21, 2020, President Trump issued an executive memo directing the Commerce Secretary to help him figure out how many undocumented immigrants were in each state. The President would then exclude that number from the count for House apportionment. The memo claims that federal law gives the President authority to edit the census number before tabulating House apportionment.

The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the “persons in each State, excluding Indians not taxed,” to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term “persons in each State” has been interpreted to mean that only the “inhabitants” of each State should be included . . . The discretion delegated to the executive branch to determine who qualifies as an “inhabitant” includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.

The memo states a policy “to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.

The Lawsuit

A group of states, individuals, and immigrants rights groups sued Trump, arguing that the July 2020 memo violated the law. The plaintiffs argued that the Constitution and two different statutory schemes restrict the President from altering the census tabulation before determining House apportionment.

The federal district court in New York agreed with the plaintiffs. The court did not reach the Constitutional question, but it ruled that the law governing House apportionment requires the Commerce Secretary to submit the census count to the President and that the President must use the census count to determine House apportionment.

Standing: A Preliminary Question

The federal court also addressed whether the plaintiffs had “standing” to sue. Standing is a constitutional requirement to bring a lawsuit. The plaintiffs must show that they have a stake in the outcome of the case, in other words, that they stand to be harmed by the course the defendants are taking. The plaintiffs must show they will face a “concrete and particularized injury.”

In this case, the plaintiffs are states and individual Americans who live in immigrant communities. The plaintiffs also include NGOs which advocate on behalf of immigrants. The plaintiffs argue two sets of harm: 1) that the memo will cause them to suffer inadequate representation in the House; and 2) that the memo will cause underreporting on the census and consequently harm them from receiving benefits allocated through census figures (i.e. federal grant money). The NGO plaintiffs have had to use resources on encouraging census participation rather than on other efforts, like fighting COVID-19.

The federal district court ruled the plaintiffs had presented adequate evidence of their potential injuries traceable to the Trump memo to have standing.

The Supreme Court Appeal 

The case falls among a rare set of cases heard by a three-judge district court panel which can be appealed directly to the Supreme Court. Thus Trump’s appeal went directly to the justices, and the Court accepted to hear arguments on November 30, 2020.

The Supreme Court will analyze the laws to determine whether Trump has the authority to re-tabulate the census for purposes of House apportionment.

Regarding House apportionment, the Constitution says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.”U.S. Const. amend. XIV, § 2.

Then other federal laws dictate the details. Congress gave the responsibility of conducting the census to the Secretary of Commerce. Then the Secretary of Commerce must report“[t]he tabulation of total population by States” to the President.13 U.S.C. § 141(a)-(b). Then the President must transmit to Congress “a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State would be entitled” using a mathematical formula “known as the method of equal proportions.” 2 U.S.C. § 2a(a).

The question is: Can the President edit the census count once he receives it from the Commerce Secretary, or must the President simply conduct the analysis of how many seats each state gets based on the actual census count?

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California v. Texas (Argument November 10, 2020)

Argument: November 10, 2020

Decision: TBA

Petitioners’ Brief: California, et al.

Respondents’ Brief: Texas, et al.

Respondents’ Brief: Neill Hurley and John Nantz

Respondents’ Brief: United States, et al.

Opinion Below: Fifth Circuit Court of Appeals

 The Supreme Court Will Determine the Fate of the Affordable Care Act...Again

Several individuals and a group of GOP-led states are leading another fight to invalidate the Affordable Care Act (ACA). They are attacking the Individual Mandate as invalid and then arguing the rest of the ACA falls with it. 

The Supreme Court will hear the case on November 10, 2020 joined by its new conservative-leaning justice, Amy Coney Barrett.

Background

Congress designed the ACA to provide all Americans affordable access to health insurance. Without getting rid of the private insurers, however, the government had to help them keep premiums down. 

The Individual Mandate was designed to control costs in the marketplace by requiring everyone to buy insurance. If the healthier people choose not to buy insurance, they can’t subsidize the sicker, more expensive people. Thus, everyone must buy. If you don’t, you have to pay a tax.

Those concerned with their liberty rights -- Republicans -- have fought to get the Individual Mandate repealed from the start. They lost a big lawsuit in 2012. Then once Trump came into office he actually resolved the issue for them. If you don’t want to buy insurance, don’t. We won’t charge you a tax. That was the Tax Cuts and Jobs Act of 2017. It says the tax payment owed by people who do not buy insurance is now exactly zero dollars.

That wasn’t good enough. It’s really the whole ACA that the GOP wants to bring down. Now, Texas leads a group of states arguing that if the tax payment is zero, the Individual Mandate is no longer constitutional. And without the Individual Mandate, the whole ACA doesn’t work. In other words, the market balance Congress intended, which was essential to ACA policy, is ineffective. The GOP-plaintiffs argue Congress must go back to the drawing board to redesign the whole healthcare law.

The GOP argument won in the federal district court in Texas, which ruled that the ACA is invalid. On appeal, the Fifth Circuit gave the GOP a win on the invalidity of the Individual Mandate. Now the Democratic-leaning states defending the ACA are asking the Supreme Court to weigh in on the fate of the ACA. The ACA and its many provisions will continue to function until this case is resolved.

Read our earlier report on the case for a full background, including additional infographic.

The 2012 Case: NFIB v. Sebelius

To understand the argument in this case, you must know how the Supreme Court ruled in 2012. In National Federation of Independent Business v. Sebelius, the Supreme Court ruled that the Individual Mandate is valid as a tax. The federal government has the power to give people a choice between buying insurance and paying a tax. Thus, it’s not so much a mandate to buy insurance but the right of the federal government to tax people.

The Tax Cuts and Jobs Act of 2017

Enter liberty savior Donald Trump. Without actually legislating on healthcare, Trump’s Congress passed a tax law to cancel out the tax penalty of the Individual Mandate. The Tax Cuts and Jobs Act of 2017 vacated the tax penalty owed by people who do not buy health insurance. The Act reduced the payment to exactly zero dollars. In other words, there’s no tax penalty.

Now we have an Individual Mandate that is only constitutional as a tax, and now there is no tax. Does that mean the Individual Mandate is unconstitutional? That’s the argument in this new lawsuit. 

Arguments by Texas, et al.

Team Texas includes GOP-led states and individuals who argue they are suffering from having to buy health insurance. They argue the Individual Mandate is unconstitutional now that the Tax Cuts and Jobs Act vacated the tax penalty. 

According to the Supreme Court decision in NFIB v. Sebelius, the Individual Mandate is not valid under the other legislative powers, like the federal government’s power to regulate commerce. Thus, Texas et al. argue, the federal government cannot impose the Individual Mandate without a tax.

Team Texas won in the lower federal courts. The district court in Texas ruled that the Individual Mandate is unconstitutional now that there’s no tax. Further, it ruled that the ACA as a whole is no longer valid because the Individual Mandate was an essential part of it. On appeal, the Fifth Circuit agreed regarding the invalidity of the Individual Mandate reserved judgement on the question of severability (whether the rest of the ACA must fall with the Mandate).

The Intervenors: Team California

When Texas brought the case, it sued the federal government, which is the entity that passed the ACA and administers it. However the federal government led by Trump isn’t into defending the case. It supports Team Texas and argues that ACA should go down. 

A number of Democratic-led states thus intervened in the case to defend the ACA. Team California argues that the Tax Cuts and Jobs Act does nothing to affect the constitutionality of the Individual Mandate. The tax act did not intend to make any changes to healthcare law; it merely declared that a tax would not be collected. 

According to Team California, the 2012 Supreme Court decision already ruled that the Individual Mandate does not command anyone to purchase health insurance. As simply a tax, the Mandate gave individuals a choice: buy insurance or pay a tax. Now, the imposition on individuals is even less: buy insurance or suffer no consequence. 

Team California argues that the challengers are trying to get an entire healthcare law to go down based on a small tax law change. Congress did not intend as much when it enacted the tax act; it would have said so. And the ACA certainly does not go down as a whole just because the Individual Mandate tax payment is zero. There’s much more to the ACA than the marketplace provisions. The rest of the ACA would stand even if the Individual Mandate goes down.

A Preliminary Question: Standing

When someone sues to change a government policy, they must allege that they are suffering or will suffer because of it. A federal court requires that someone has a “concrete and particularized” injury in order to bring a suit. For example, an immigrant who faces removal might sue against the policy underlying the removal. The injury is the possible removal. A social security claimant standing to lose her benefits might sue that the Social Security Administration rules are unfair. The injury is the potential loss of benefits.

In this case, the individuals who are bringing suit weren’t actually forced to pay anything. The tax penalty is zero. So they don’t stand to suffer financial injury from the tax penalty. Do they suffer otherwise? That’s what the ACA defenders ask: what is the harm you are complaining about? Without a “concrete and particularized” injury, the plaintiffs have no case.

The individual plaintiffs argue that their injury is the cost of insurance that they were compelled to buy. They tell the Court that even though they had a “choice” not to buy insurance (and suffer zero penalty), they are law-following people and felt compelled to buy the insurance. Thus, they were compelled to pay the cost of the insurance. The cost of the insurance is the injury. They further argue they suffer from “increased regulatory burden.”

The state plaintiffs claim the ACA causes them “fiscal injuries as employers.” The states must provide evidence of the financial injuries the ACA causes them.

The Supreme Court must address the standing question before addressing the merits (whether the Individual Mandate is constitutional).

Effect of the Decision

If the ACA goes down, an estimated 29.8 million people will lose their health insurance. As one community health center report puts it, that means that people will delay their healthcare needs until they end up in more expensive care like emergency rooms. The healthcare system will take the financial burden when inevitably those people are unable to pay. 

Further, the Economic Policy Institute predicts that 1.2 millions jobs will be lost. People forced to pay more for their healthcare needs will be unable to spend that money elsewhere, like at grocery stores and other businesses.

The American Medical Association (AMA) filed a brief supporting Team California. The brief argues that the ACA should still stand, even if the Individual Mandate goes down. It highlights many elements of the ACA that are not dependent on the Individual Mandate, such as: 

Premium Subsidies and Cost-Sharing Reductions, 

Preventive Services

Essential Health Benefits

Voluntary Medicaid Expansion

Accountable Care Organizations

Preexisting Conditions Provisions

These provisions, it argues, are among innumerable others which are providing important benefits to the public and can function well without the Individual Mandate. According to the AMA, “Invalidating the ACA would throw the U.S. health care system into crisis, and doing so in the midst of a pandemic would risk collapse.”

AARP also filed a brief in support of the ACA, enumerating the harms to older adults if the ACA were invalidated. In total 37 amicus briefs were filed to support the Petitioners, who are defending the ACA.

Six briefs were filed to support the Respondents, including one from the CATO Institute, “a nonpartisan public policy research foundation that advances individual liberty, free markets, and limited government,” and the Center for Constitutional Jurisprudence,”whose stated mission is to restore the principles of the American founding to their rightful and preeminent authority in our national life, including the principle at issue in this case that Congress has been delegated only limited, enumerated powers.”

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U.S. Fish and Wildlife Service v. Sierra Club (Argument November 2, 2020)

Argument: November 2, 2020

Decision: TBA

Petitioners Brief: U.S. Fish and Wildlife Service, et al.

Respondent Brief: Sierra Club, Inc.

Opinion Below: Ninth Circuit Court of Appeals

Ninth Circuit

 When does transparency hinder the ability of policy experts to deliberate?

This case asks the Supreme Court to determine whether a federal agency must make publicly available certain documents involved in its decision-making process. 

An environmental group asked two federal agencies to turn over a set of documents relating to the Environmental Protection Agency’s decision to regulate cooling water intake structures. The EPA regulates these structures because of their potential harmful effects on wildlife:

Across the United States, thousands of large industrial facilities, power plants, and other manufacturing and processing complexes draw billions of gallons of water each day from lakes, rivers, estuaries and oceans in order to cool their facilities through cooling water intake structures. These structures can harm fish, shellfish, and their eggs by pulling them into the factory's cooling system; they can injure or kill other aquatic life by generating heat or releasing chemicals during cleaning processes; and they can injure larger fish, reptiles and mammals by trapping them against the intake screens. Section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), directs the Environmental Protection Agency (EPA) to regulate the design and operation of cooling water intake structures to minimize these adverse effects.

Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1017 (9th Cir. 2019).

When faced with the Freedom of Information Act request, the Petitioning agencies, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), declined to turn over certain documents it labeled draft biological opinions. The agencies had submitted the draft opinions to EPA to assist the EPA in determining the impact of its proposed rule on endangered species.

The issue before the Supreme Court is whether the draft biological opinions fall under an exemption to the Freedom of Information Act’s general mandate that federal agencies make documents publicly available.

The Proposed Regulations and Consultation Process

In April 2011, the EPA proposed new regulations for certain cooling water intake structures. Federal law requires the EPA to consult with the Respondent agencies, FWS and NMFS (together, the “Services”), when a regulation may affect an endangered species. So the EPA reached out to FWS and NMFS to determine the impacts of the proposed regulations. 

In 2012, EPA consulted informally with the Services. In 2013, the EPA requested a formal consultation with the Services, and the agencies agreed that FWS and NMFS would each send a “draft biological opinion” to the EPA by December 6th of the year. The reports would indicate whether the agencies found the rule would jeopardize endangered species.

In December, however, the Services sent only portions of their draft biological opinions. Around the same time there was a telephone call between the FWS Deputy Solicitor General and the General Counsel of the EPA to “touch base . . . about transmitting a document to the EPA.” The Sierra Club suggests that the attorneys were discussing how to avoid creating public records of the draft opinions.

By the end of the year, the Services sent a different document: joint recommendations to the EPA (“reasonable and prudent alternatives”) on how to change the proposed rule. In March 2014, the EPA came out with a new rule. And in April 2014, the Services sent a final joint biological opinion. 

The FOIA Request

The Sierra Club wants to know what those December 2013 draft biological opinions said because they obviously caused the EPA to change its proposed rule. So Sierra Club made a Freedom of Information Act (“FOIA”) request for all documents relating to the consultation process between the EPA and the Services. 

The Services sent over a bunch of documents in response to the FOIA request but excluded the December 2013 draft biological opinions. The Services claimed the draft biological opinions are exempt from FOIA’s production mandates.

The Freedom of Information Act and Exemptions

Congress passed the Freedom of Information Act allowing public access to agency records so people would know what the government is up to, or to encourage an informed citizenry. From FOIA.gov:

Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.

You can read the nine exemptions here. The one relevant to this case is Exemption 5, the Deliberative Process Privilege, which is aimed to protect the "decision making processes of government agencies.” Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). The exemption protects documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Id. 

The point of the exemption is that agencies should be able to deliberate openly without worrying about how the public will interpret their primitive discussions on an issue. With frank dialogue, the final decisions and policies will be better. 

Analysis

How do courts decide whether a document falls within the Deliberative Process Privilege?

The Ninth Circuit Court of Appeals, the lower court in the case, interpreted the privilege narrowly. And ruled in favor of the Sierra Club. The court asked whether the documents attempting to claim the privilege are both pre-decisional and deliberative. If not, they must be produced. Regarding the 2013 draft biological opinions, the Ninth Circuit determined that they were not pre-decisional.

A document is pre-decisional if it is "prepared in order to assist an agency decision-maker in arriving at his decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1012 (9th Cir. 2019).

According to the court, the 2013 draft biological opinions represent the final views of the Services in regards to the proposed rule in question at the time. Despite that they were not issued publicly and despite that the agencies labeled them as drafts, the opinions did constitute the final opinions of the agencies and they did cause a policy change. 

We note that the documents do not contain line edits, marginal comments, or other written material that expose any internal agency discussion about the jeopardy finding. Nor do these documents contain any insertions or writings reflecting input from lower level employees. The two December 2013 opinions both state they were prepared on behalf of the entire agency and represent that agency's opinion. And the record shows that preparations were being made for the NMFS opinion (NMFS 44516.1), as is, to be publicly "roll[ed] out" and published in the administrative record; the FWS opinion (FWS 252), which includes its agency's seal/header, had received final edits from a senior official and was just awaiting his autopen signature.

Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1017 (9th Cir. 2019).

Accordingly, the Ninth Circuit ruled the agencies are under obligation to provide them in response to a FOIA request.

The Services petitioned for Supreme Court review. In the meantime, the parties agreed to hold off on the agencies’ production of the documents.

Petitioners’ Arguments

The Services argue the draft biological opinions are exempt from public request under the Deliberative Process Privilege. 

They argue the draft opinions are pre-decisional because they were created for purposes of discussion and they provide “a valuable deliberative tool.” In fact, the agencies argue, the opinions were “twice removed” from being final: they had not been approved for sending to the EPA, and they had not been approved for final issuance. According to the agencies, the draft opinions were prepared for supervisors with decision-making authority. Because they had not been approved, the decision-makers were free to change their minds. Thus, they are “classic examples of a deliberative document.”

The Petitioners rely on Renegotiation Bd. v. Grumman Aircraft (1975) to characterize the draft opinions as exempt. In Grumman Aircraft, the Supreme Court determined that certain documents transmitted between agencies were exempt as pre-decisional. Although the documents were labeled “final” by the transmitting agency, the transmitting agency was not the one with the authority to finalize the decisions. 

Petitioners argue the Grumman Aircraft holding applies to the draft opinions, which were also intra-agency documents coming from an agency which was merely involved in the deliberative process for the EPA rule. 

Petitioners argue the lower court ruling undermines the purpose of the deliberative process privilege:

If the privilege for agencies’ draft documents were made dependent on contingent events like whether the agency action under review was later modified, or whether staff members polished the drafts and made preparations to finalize them, then agency personnel could not have confidence that their draft analyses and recommendations would be protected, and some employees would likely be less candid as a result. The Ninth Circuit’s flawed standard for the deliberative process privilege would also undermine the authority of agency decisionmakers to pause a decisionmaking process that is nearing completion, and it would force agencies to face criticism for, and potentially litigation over, matters the agency considered before making up its mind.

Brief of Petitioners (internal citations omitted).

Respondent’s Arguments

According to the Sierra Club, the draft biological opinions caused the EPA to amend its final rule. They were consequential and thus must be produced. Petitioners try to characterize the draft opinions as deliberative and pre-decisional, but at least, Respondents argue, they provided consequential intermediate decisions within a multi-step agency process. Exemption 5 does not allow withholding documents directly causing such important decisions. Respondents’ brief cites a justification provided in 1975 Supreme Court precedent: “FOIA mandates disclosure of ‘the reasons’ that ‘supply the basis for an agency policy actually adopted.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975). 

Respondents acknowledge the precedent put forth by Petitioners, Grumman Aircraft. In Grumman, Petitioners point out, the transmitting agency was a lower-level agency with no decision-making authority. In contrast, in this case the Services are responsible for providing jeopardy opinions which influence the final EPA decision:

Given the ESA’s unyielding prohibitions and the Services’ wildlife-related expertise, the Services’ conclusions have practical and legal consequences such that action agencies cannot “in reality” defy them. 

Brief of Respondents.

Respondents argue the government cannot shield consequential documents by labeling them “pre-final” and “pre-decisional.” Of course in agency work, there is always more work to be done. But the purpose of FOIA is to provide information relating to the decisions made by government agencies. As such, the Services must produce the draft biological opinions.

The Supreme Court will hear arguments on November 2, 2020.

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Fulton v. City of Philadelphia (Argument November 4, 2020)

Argument: November 4, 2020

Decision: TBD

Petitioner Brief: Sharon Fulton, et al.

Respondent Brief: City of Philadelphia, et al.

Lower Court: Third Circuit Court of Appeals

Catholic Foster Agency Seeks To Overturn Important Religious Freedom Precedent 

The City of Philadelphia is responsible for providing homes for children requiring foster care. These are children who have been removed from their homes because their parents are facing charges of abuse or neglect. 

A person wanting to become a foster parent must be approved by the City. Philadelphia contracts out the task of approving foster families to private organizations. The private organizations (“foster family care agencies”) interview family members, visit homes, and advise the City on whether a foster family should be licensed.

Catholic Social Services, A Foster Family Care Agency

Catholic Social Services (CSS) is a nonprofit organization which has contracted with Philadelphia as a foster family care agency for decades. The City describes that:

[CSS] has performed its contractual duties with distinction, helping DHS identify and approve hundreds of families to care for the City’s foster children. To this day, DHS continues to contract with CSS to provide a number of services to children in foster care, including managing group homes and directly providing social services to foster children. 

Accordingly, CSS has performed very well as a foster family care agency in Philadelphia. However, Philadelphia is not re-signing for foster services with the agency because CSS will not agree to the City’s new contract terms.

The Nondiscrimination Provision

In March 2018, a newspaper report highlighted that CSS would not work with same-sex couples. Despite that CSS had otherwise performed its responsibilities well, Philadelphia took issue with the organization’s stance against gay couples, deciding the policy is unacceptable discrimination.

CSS follows the Catholic Church teachings on marriage. As CSS explains, “That means, if ever asked, CSS could not provide a written endorsement of a same-sex relationship for a couple seeking to foster.”

A same-sex couple wishing to become a foster family must get licensed with a different agency. 

After the article came out, Philadelphia redrafted its contracts with foster family care agencies. The new contracts include an anti-discrimination provision requiring that a foster family care agency cannot discriminate on the basis of sexual orientation. If CSS can’t work with same-sex couples, it can’t act as a foster family care agency.

The Lawsuit: First Amendment Claims

CSS sued the City of Philadelphia with several First Amendment claims. The First Amendment bars the government from restricting a person’s speech or expression. It also prohibits the government from disfavoring a particular religion.

In the lawsuit, CSS claimed Philadelphia’s new anti-discrimination policy targets the Catholic organization because of its religious views. Further, the new anti-discrimination policy violates its freedom of speech and its freedom of expression because the policy forces the organization to approve of same-sex relationships, meaning it forces expression and speech contrary to the organization’s beliefs.

The City says the First Amendment was made for a case like this, where the government intends to restrict religious exercise because it does not agree with the religion’s views. 

Procedural History

CSS and the foster parent petitioners attempted to get preliminary relief in the district court, meaning they wanted the trial court to rule that they were likely to win the case. Preliminary relief would also put the City’s actions (i.e. new contract terms) on hold. However they lost. They appealed, and the Third Circuit Court of Appeals sided with the City again. The Third Circuit Court of Appeals ruled that Philadelphia was not likely to win their claims and thus could not get preliminary relief. 

According to the Third Circuit, the City’s rule is valid because it applied generally and was neutral towards religion. Thus, in following Supreme Court precedent, Employment Division v. Smith (1990), the City had not violated the Free Exercise clause. Because the City had not set out to target the Petitioners but rather to promote a religiously-neutral policy against discrimination, it had not violated the Establishment Clause. 

The Third Circuit also denied CSS’s requests for relief for its other First Amendment claims. In sum, according to the Third Circuit, the City had the right to insist that CSS not discriminate against same-sex couples as a condition of working with it to provide foster services.

CSS and the foster parents appealed the Third Circuit ruling to the Supreme Court.

Issues on Appeal

Petitioners argue to the Supreme Court that the Third Circuit wrongly analyzed the Free Exercise claim. The Third Circuit evaluated whether the government would have allowed the same conduct by someone with a different religious view. Petitioners argue the Third Circuit should have used a broader set of evidence to determine whether a law is neutral and generally-applicable. 

Further, Petitioners argue that the relevant Free Exercise precedent, Employment Division v. Smith (1990), should be overturned. Smith ruled that the government is generally free to restrict religious liberty as long as the law is religiously neutral and generally applicable. Petitioners argue that rule is unworkable and fails to provide adequate Free Exercise protection.

Petitioners’ Arguments

Petitioners argue that Smith doesn’t apply to this case. And further, Smith should be overturned. Either way, the Third Circuit failed to protect the guarantees of the Free Exercise clause in applying Smith.

The Smith rule practically insulates a government action from a free exercise challenge if the government action was religiously-neutral and generally-applicable. But Petitioners argue that Smith doesn’t apply in this case. They argue that Philadelphia didn’t actually have an anti-discrimination law on the books that applied. Rather, according to CSS, Philadelphia determined its policy after deciding it disrespected CSS’s beliefs and then created a law—after the fact—to target the organization.

Philadelphia had no neutral law. Philadelphia decided on an outcome and then tried to find a law to fit. When it couldn’t, it reverse-engineered policies to justify its actions. This is the inverse of the neutral law in Smith. Philadelphia then compounded that error through express hostility toward CSS’s religious exercise.

Brief of Petitioners at 17.

Plus, CSS argues, Philadelphia allows all kinds of exemptions to its foster agency rules. Thus, the “law” isn’t generally applicable:

Nor did Philadelphia have a generally applicable law. A law cannot be generally applicable when it uses individualized exemptions, and Philadelphia has granted the Commissioner and the City’s lawyers carte blanche to give exemptions. But no such exemption will be granted for CSS’s religious exercise. 

Brief of Petitioners at 17.

Petitioners also argue that the Supreme Court should overturn Smith. They argue that Smith is not a workable standard and that it “is unsupported by the text, history, and tradition of the Free Exercise Clause—all of which guarantee broad protection for religious beliefs and practices.” Without Smith, individuals would be able to argue for strict scrutiny of government action that they claim violates their religious freedom. Petitioners claim that applying strict scrutiny in such a case would suit the commands of the First Amendment, whereas Smith does not.

Under strict scrutiny, Petitioner argue, this case would certainly fail because the government is compelling private speech:

Philadelphia requires private agencies, as a condition of providing foster care, to author a written document evaluating and endorsing same-sex and unmarried cohabitating relationships. There is no question that the endorsement is speech. It comes in the form of a home study written by CSS, which requires evaluations—both objective and subjective—of everything from the quality of the applicant’s intimate relationships to their suitability to raise children.

Brief of Petitioners, internal citations omitted.

Philadelphia cannot compel CSS to act against its religious beliefs Petitioners argue, and the Court must fix the precedent which resulted in the Third Circuit ruling. 

Respondents’ Arguments

Respondents argue that Philadelphia is not requiring CSS to do anything. CSS voluntarily acts as a foster care agency in agreeing to perform a responsibility that belongs to the government. CSS doesn’t have to participate, so the City is not requiring it to make any speech it doesn’t agree with. But it the agency does decide to work with the government, it must follow government rules—which means no discriminating against same-sex couples.

The government has “significantly greater leeway” when directing its employees and contractors than when regulating private individuals in its capacity as “sovereign.” That “extra power” stems both from the reality that government “could not function” if its agents had a constitutional right to perform their jobs as they see fit, and from the attenuated burden the government imposes on individual rights when it instructs its employees and contractors how to perform their official duties. 

Brief of Respondents, internal citations omitted.

Respondents argue under Smith that the anti-discrimination provision is religiously-neutral and generally-applicable. They argue against overturning Smith under stare decisis. They also argue that this case is not a good one to use for reconsidering the precedent because it comes within the government contracting context. In government contracting, Philadelphia argues, the government must be able to control its operations more than when it is controlling private action. If the Court wants to revisit Smith, it should find a case in which the government is controlling private action. Further, Philadelphia claims that its anti-discrimination actions would satisfy strict scrutiny anyway, which also means the case is not a good one to use for reconsidering Smith.

The Supreme Court will hear arguments on November 4, 2020.

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Torres v. Madrid (Argument October 14, 2020)

Argument: October 14, 2020

Decision: TBA

Petitioner Brief: Roxanne Torres

Respondent Brief: Janice Madrid; Richard Williamson

Opinion Below: Tenth Circuit Court of Appeals

 Officers Argue New Mexico Woman was Shot, Paralyzed, but Not Seized

In the dark early morning hours of July 15, 2014, Roxanne Torres dropped off a friend at an apartment building. Around the same time, New Mexico police officers Janice Madrid and Richard Williamson arrived in an unmarked car. They were in plain clothes and tactical vests with police indicia. The officers had an arrest warrant for a woman unrelated to Torres. Officers Madrid and Williamson saw Torres parked outside the building and approached the car. The officers reasoned that either Torres was the target of the warrant or knew something about the target.

Madrid and Williamson stood on each side of Torres’ car without identifying themselves as police officers. They repeatedly commanded Torres to “Open the door!” and “Show me your hands!” Torres neither heard the commands nor saw any indicia identifying Madrid and Williamson as police officers. All she saw were two strangers with guns and dark clothing trying to access her car—Torres thought Madrid and Williamson were carjackers. 

When the officers tried to open the car door, Torres drove forward fearing for her safety. The officers believed Torres was going to hit them with the car. In self-defense, the officers drew their service weapons, aimed at Torres, and fired 13 gunshots as Torres drove away. Two bullets struck Torres’ body. One bullet pierced her back, paralyzing her arm.

Torres drove a short distance before colliding with another car. Torres laid down on the ground and asked a bystander to call 911. Believing the carjackers were still in pursuit, Torres took an unattended running car and drove to a hospital 75 miles away. Due to her injuries, Torres’ was airlifted to a larger hospital. The next day, the police arrested Torres at the hospital.

The Fourth Amendment

The Fourth Amendment confers a right upon people “to be secure in their persons . . . against unreasonable searches and seizures.” Seizure applies in two ways. One way is through the application of physical force to a person’s body. For example, placing handcuffs on a person. Seizure also applies when a show of authority causes a person to submit. For example, when a law enforcement officer commands “stop,” and the person stops.

All seizures must be reasonable. The reasonableness standard is a riddle wrapped in a mystery inside an enigma. The standard employs the perfectly “reasonable person”—a fictional character created by the judiciary. A seizure is likely reasonable when there is an arrest warrant. Warrantless seizures may be reasonable when there are exigent circumstances, evidence that is in plain view, consent, or probable cause for a person’s arrest.

Excessive use of force may deem the seizure of a person unreasonable. Force is excessive when it is greater than what is reasonably necessary to detain someone or make an arrest. Circumstances dictate whether the use of lethal force was reasonable when seizing a person. For instance, while an officer may not shoot an unarmed suspect fleeing on foot, an officer may shoot a suspect fleeing in a car that is about to run them over.

Was the Force Excessive?

Section 1983 of Title 42 of the United States Code (42 U.S.C. § 1983) allows a person to sue law enforcement officers for excessive use of force. Law enforcement officers may be held personally liable for damages when they violate constitutional rights, such as the Fourth Amendment. The judicially created doctrine of “qualified immunity” protects officers from personal liability. Qualified immunity is neither written in the Constitution nor established by Congress. The Doctrine protects public employees from being sued and held personally responsible for injuries caused in the normal course of their duties as long as they did not knowingly violate “clearly established statutory or constitutional rights.”

On October 21, 2016, Torres sued officers Madrid and Williamson under Section 1983 for use of excessive force. The officers filed a motion for summary judgment stating an excessive force claim requires a seizure. They argued that since Torres fled, they never seized her. Therefore, Torres cannot have an excessive force claim. The trial court agreed and granted the officers’ motion. The U.S. Court of Appeals for the 10th Circuit affirmed the decision that the officers did not seize Torres. Torres asked the Supreme Court to hear her case, and the Supreme Court granted her petition.

What Constitutes a Seizure?

In Terry v. Ohio (1968), the Supreme Court noted that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 

In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. Since then, appellate courts have disagreed on the meaning of “submission” in the context of police authority. The Supreme Court did not find that a seizure occurred in Hodari D. when officers chased a suspect without making any contact because an “arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.” The Court found that “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.”

The D.C. and First Circuits say that encounters similar to Torres’, where there is temporary compliance to a show of authority followed by flight, may constitute submission. The Second, Third, Ninth, and Tenth Circuits contend that compliance followed by flight is not submission.

This case presents an opportunity for the U.S. Supreme Court to resolve the circuit split over the definition of “submission to police authority.”

The Case for Torres

Despite her temporary escape, Torres contends she eventually submitted to police authority and that officers Madrid and Williamson seized her when they shot at her 13 times, striking her twice.

The application of force with the intent to restrain constitutes seizure. The Fourth Amendment protects peoples’ right to be “secure in their persons.” Unless justified, any bodily intrusion violates the Fourth Amendment. Cheek swabs, blood draws, fingernail scrapings, and breathalyzer tests require probable cause. All of them are significantly less intrusive than intentionally shooting at a person and striking them.

Officers Madrid and Williamson shot at Torres with the intent to restrain her, striking her twice and paralyzing her arm. Here, the Supreme Court precedent in Hodari D. applies: “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” The shooting constituted a seizure, even when Torres continued to drive away.

If seizure requires a restraint on movement, then the officers seized Torres. The bodily injury caused by the officers’ bullets, paralyzing Torres’ arm, restrained her movement and forced her to stop to seek medical attention. The eventual stop is a submission to police authority resulting from the lethal physical force used by officers Madrid and Williamson.

Unreasonable physical force used in a seizure violates the Fourth Amendment. This seizure was unreasonable because Madrid and Williamson used lethal and excessive force when they shot at Torres 13 times. The officers were standing at the side of the car and no one was in imminent danger of being run over as Torres drove away.

People trust law enforcement officers because they are held accountable by the Fourth Amendment. When violated, they are personally liable for damages. The judicial doctrine of qualified immunity offers protection against personal liability and ensures there are no impediments for law enforcement officers to discharge their duties so long as they exercise reasonable use of force. Here, a reasonable person may find Torres in submission and seized by the gunshots, even if she was able to escape from the shooters who she thought were carjackers.

The Case for Officers Madrid and Williamson

Without physical restraint or submission to police authority, there can be no seizure. Without a seizure, there can be no violation of the Fourth Amendment. Without a constitutional violation, officers Madrid and Williamson cannot be liable for any damages.

The Supreme Court precedent in Hodari D. and Terry v. Ohio clearly state that a seizure requires (1) restraint on a person’s liberty, even if followed by flight; or (2) submission to authority—regardless whether voluntary or involuntary. There is no seizure when a person does not stop.

First, officers Madrid and Williamson did not seize Torres because they did not physically restrain her. Torres did not respond to any verbal commands and drove away from the officers, unencumbered. Not only did Torres flee the scene, but she drove more than 75 miles away.

Second, the gunshots directed at Torres by Madrid and Williamson, including the two that struck her, did not cause Torres to submit to police authority. Instead, she continued to drive away. The force used by the officers was reasonable and proportional to the danger of being run over by Torres as she drove away. The officers responded in fear of their lives when Torres nearly ran them over. Had Torres stopped immediately after being shot, terminating her movement, then a reasonable person may have likely considered her seized for purposes of the Fourth Amendment. She neither stopped, nor was her movement terminated by the gunshots.

Torres’ conduct and account of the incident show that she felt free to leave and that she did not perceive herself as being seized by the officers’ gunshots. At no point did the officers take possession, custody, or control of Torres and at no point did Torres submit to police authority. Therefore, the officers did not seize Torres.

What is at Stake?

The 42nd Congress enacted Section 1983 to hold government officials personally responsible for upholding constitutional rights. Since then, the Court has largely promoted deference to politically accountable bodies. It even developed judicial doctrines that left victims of police violence and abuse with no realistic chance of recovery. Affirming the Tenth Circuit’s holding will further add to the already high barrier excessive force claimants must overcome to prevail.

Law enforcement officers enjoy unparalleled protections from accountability. They have powerful police unions, the “blue wall of silence,” free legal representation, sympathetic prosecutors, and reluctant juries. Police officers and the municipalities that employ them also have Supreme Court jurisprudence that is heavily tilted in their favor. With doctrines like “qualified immunity” and legal interpretations that favor police, such as the Torres case, the courts have afforded police officers with nearly complete immunity for their actions.

The Supreme Court constructed the legal doctrine of qualified immunity in 1967. During those years, police violence and use of lethal force against civil rights groups and activists were widespread. In Pierson v. Ray (1967), the Supreme Court responded by extending police officers the benefit of the doubt for enforcing the law “in good faith and with probable cause”—a high barrier to overcome. 

The Court then made it nearly impossible for excessive force claimants to prevail by requiring any violation of rights be “clearly established”—another judicially constructed doctrine. That means, for a plaintiff to prevail, another court must have previously encountered a case that is similar in all respects, where the officer was found not immune.

The question before the Court is whether the use of lethal force to restrain a suspect constitutes a “seizure” under the Fourth Amendment, even if the force does not terminate the person’s movement or result in physically restraining the suspect. 

Police shoot people to physically restrain and seize them. There should be no limit or precondition for a court to examine the justification of a shooting under the Fourth Amendment. Inquiring whether a particular bullet succeeded in immediately stopping a suspect is a condition that limits judicial inquiries to police shootings that results in fatalities or paralysis. A police officer’s bullet is an undeniably severe bodily intrusion. A person’s movement after being shot by the police should have no bearing in the seizure analysis. Resisting or escaping capture, detention, or arrest after being shot should not dictate whether the Fourth Amendment applies.

In the “Rights of Man,” Thomas Paine concluded that no one should trust “[a] body of men [that hold] themselves accountable to nobody.” The Supreme Court may not have the prerogative to address the longstanding structural roots of police violence against civilians. However, the Supreme Court has a duty in our tripartite government to upend the exploitative and discriminatory culture that has led to less police accountability. 

The jurisprudence surrounding police violence and use of excessive force communicate to poor people and people of color that their lives are dispensable. The courts are the final salve for beleaguered communities that lack political influence, suffer the most violence at the hands of the police, and are treated with a punitive and unforgiving system. Policing neither exists in a vacuum, nor is it severed from its history. Policing is another tool in the social order that exacts, extracts, and exploits poor communities, contributing to cyclical violence and enshrining the dispensability of poor civilian lives, especially people of color. The courts should review cases such as Torres accordingly.

Affirming the Tenth Circuit’s holding does not only continue the Court’s trajectory in shielding law enforcement officers from liability, it would even bar the basic reasonableness inquiry into the force used by police officers. Under the Tenth Circuit rule, only the fatal use of force would involve the Fourth Amendment. Adding another barrier for excessive force victims to overcome renders the constitutional accountability in Section 1983 obsolete. In affirming the Tenth Circuit holding, the Court risks becoming what Justice Benjamin Curtis in Dred Scott v. Sandford (1857) decried: a body that has “abandoned the fixed rules which govern the interpretation of laws” and is controlled “by individual men, who for the time being have power to declare what the Constitution is according to their own views.”

The Justices will hear arguments on October 14, 2020.

  Contributor Abdel-Rahman Hamed

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Tanzin v. Tanvir (Argument October 6, 2020)

Argument: October 6, 2020

Decision: TBA

Petitioner Brief: FNU Tanzin, et al.

Respondent Brief: Muhammad Tanvir, et al.

Opinion Below: Second Circuit Court of Appeals

 What’s the Recourse Against Federal Officers Who Violate Your Religious Freedom?

The plaintiffs in this case are American Muslim men who were approached by the FBI to act as informants. When asked, some of the men were threatened with deportation and arrest, and in other cases they were promised financial benefits. 

Each of the men rejected the offers, telling the federal agents they didn’t have any information and preferred not to spy on their communities. Spying, in fact, is against the Islamic moral code.

After saying no, the men were harassed and placed on the federal “No Fly List”, despite that none of them had a criminal record. 

The “No Fly List” is a terrorist watchlist administered by the FBI. A person on the list cannot board a plane that starts in, ends in, or flies over the United States. You don’t know that you’re on the list until you show up at the airport and can’t board.

The men could not fly for years because they were on the “No Fly List.” They wasted plane tickets, one quit his job that required him to fly; and they also suffered emotional distress and reputational harm from the harassment by federal officers and inability to fly. Read Tanvir’s account in the Second Circuit opinion (starting on page 10) to get an idea of the harassment.

Federal Complaints

The plaintiffs sought recourse by filing complaints with the DHS Traveler Redress Inquiry Program, the administrative mechanism for filing complaints about the “No Fly List.” Their complaints failed without explanation. Years passed before each was finally removed from the list and able to board a plane.

The men sued for damages under the Religious Freedom Restoration Act. They alleged the government and its officers violated their religious freedom by retaliating against them for refusing to become spies, or for upholding their religious beliefs. 

Suits Against the Government Versus Individual Officers

Since the early days of the nation, individuals could not sue the government without the government’s consent. Suits against the government violated an English legal principle of sovereignty and people believed it threatened the dignity of the government. 

We adopted the same rule in American jurisprudence. Over the years Congress has passed various laws where the government waives its immunity to suit. In some areas of law (like tort), individuals can get money damages from the government. 

When you sue the government with a civil rights complaint, you can get an injunction, but you can’t get money. In other words, you can get the government to stop harming you, but you can’t get money. If you want money in such a suit, you have to sue the government officers. It’s a work-around for government immunity. The money will come from the pockets of the individual officers.

Issue in the Case

In this case, Tanvir and co., sued under the Religious Freedom Restoration Act. They seek money damages because an injunction won’t do. They were already taken off the “No Fly List.” But what about the damage they suffered in the meantime? They want monetary relief from the individual officers.

A court must evaluate the RFRA to determine whether the government has waived immunity and what type of relief is available. The statute explicitly allows suits against the government, but the question in this case is whether the plaintiffs can get money damages. 

The Religious Freedom Restoration Act

Congress passed the RFRA to provide stronger protection for religious freedom than the First Amendment guarantees. It was passed in response to a Supreme Court case, Employment Division v. Smith (1990), which held that the First Amendment does not provide strict scrutiny review when a neutral law (one that applies generally, i.e. does not intentionally pick on a religious practice) restricts someone’s religious liberty. After Smith, Congress stepped in to mandate strict scrutiny review even for laws of general applicability. The RFRA provides:

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except [when the Government can show] that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The RFRA also determines who gets to sue; who can be sued; and what the plaintiff can get for relief. The relief question is important in this case.

The RFRA says that any “person whose religious exercise has been burdened in violation of [the statute]” can sue “in a judicial proceeding and obtain appropriate relief against a government.” And the term “government” includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”

The statute does not define the term “appropriate relief,” a term which is critical in resolving whether the plaintiffs in this case can get damages against the federal officers.

Rules of Statutory Construction

To determine the intention of a statute, a court will first look at the text of the statute. If the text is clear, the court will go with the textual reading. If the text is not clear, then the court will evaluate the context surrounding the text, both the surrounding language and the broader statutory context. 

The Lower Court Analysis

The lower court determined that “appropriate relief” in the RFRA includes money damages. The Second Circuit reviewed the context of the language as it was used in the statute because the statute did not define the term specifically.

First, the Second Circuit acknowledged that the term “appropriate relief” is entirely context dependent. It could include money damages or it could limit the damages to equitable remedies (like an injunction), depending on the context. 

To interpret the context, the court decided that Congress legislates in accordance with the existing legal rules, including judicial decisions of the time. Around a year before Congress enacted the RFRA, the Supreme Court decided a case that addressed which remedies are available in statutes that didn’t explicitly state the remedies. 

In Franklin v. Gwinnett Cty. Pub. Schs. (1992), the Supreme Court said a court should “presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise.” Because the RFRA doesn’t explicitly preclude money damages as a remedy and Congress chose to use the same “appropriate relief” language that the Supreme Court evaluated in Franklin, the Second Circuit determined that courts may award money damages.

Tanzin appealed, asking the Supreme Court to address the remedy question on appeal.

Tanzin’s Arguments

The government argues that the RFRA does not allow monetary relief against federal officers in their official capacities. The government makes four arguments.

First, it argues, the RFRA only allows suits against the government itself—not individual officers. So the plaintiffs cannot even sue federal officers individually, much less get money damages against them. 

Second, when a court evaluates the phrase “appropriate relief,” it must consider the term as it relates to relief against government employees. Generally, money damages are not appropriate relief against government officials. There is one statute that does allow monetary damage against government officials, and there is no indication the RFRA intended to create a similar remedy. 

Third, a court should refrain from implying a monetary damages remedy against federal officers when Congress did not explicitly state one. Such a remedy causes a big social impact, so Congress would state its intention specifically. The government rejects application of the Franklin presumption to imply that monetary damages are appropriate.

Fourth, the same term “appropriate relief” was used in the RFRA’s sister statute, the RLUIPA, and the Supreme Court determined the RLUIPA does not include monetary damages based on the term.

Tanvir’s Arguments

Tanvir and co. argue that the RFRA allows suits against federal officers in their individual capacities and allows money as an “appropriate remedy.”

The RFRA’s definition of government provides a list of who can be sued. The definition includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” According to Tanvir, the phrase “or other person acting under color of law” obviously refers to federal officers. That’s the exact phrase used to refer to federal officers in the other statute which allows suits against federal officers, and it makes sense that Congress would copy it. Also, if the phrase refers to one of the other government entities, it would be redundant because those are listed in the statute already.

Tanvir supports the Second Circuit’s use of the Franklin presumption, which presumes the availability of monetary relief unless expressly stated otherwise. 

Tanvir rebuts the government’s argument using the RLUIPA as a parallel by distinguishing the RLUIPA. Tanvir points out that in the case where the Supreme Court evaluated “appropriate relief” in the RLUIPA, Sossamon v. Texas (2010), the Court was deciding whether the phrase was enough to waive state immunity to suit, not what type of damages were available. Thus, the parallel doesn’t work, Tanvir argues, and the Court should stick with the Franklin presumption.

Lastly, Tanvir notes that allowing monetary damages accords with the broad intention of the RFRA. The statute meant to provide relief to people whose religious exercise is substantially burdened by the government, which the Supreme Court has acknowledged is a broad protection of religious liberty (Burwell v. Hobby Lobby (2014)). Without monetary damages against federal officials, the statute wouldn’t provide it. 

The Supreme Court will hear arguments on October 6, 2020.

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Freedom of Speech and Expression

Offensive Speech • Unprotected Speech • Permissible Government Restrictions • Levels of Scrutiny • Political Speech

What are freedom of speech and expression?

The Constitution’s First Amendment gives individuals the right to express themselves. Freedom of speech is a basic form of expression, but the First Amendment covers much more than just speech.

An individual can express herself through religious practice; through political speech or actions; by associating with others; by petitioning the government; or by publicizing written speech. Even certain “speech actions” like flag burning are considered protected speech.

Free speech and expression are rights against the government. They are not rights against other people.

The government — whether federal, state or local — cannot prohibit an individual from expressing herself. That means all laws and policies must treat people equally based on their views. Government agents, from police officers to school board officials, must do so as well. Freedom of expression might also require the government to set an environment that enables individuals to speak, or to ensure that certain views are not inhibited from being expressed. The First Amendment may prevent President Trump from blocking certain views on Twitter, but it does not prevent non-government individuals from restricting their social media feeds based on viewpoint.

   Offensive Speech May Still Be Protected Speech

The First Amendment prohibits the government from censoring speech or expression, even if many people would find the speech offensive. For example, flag burning is a form of protected speech. Likewise, speech for mere purposes of entertainment, vulgar speech, hate speech, and violent video games are all protected speech.

What Speech Is Not Protected? 

The government is allowed to censor speech in certain circumstances. When the speaker has a certain relationship with the government, the government may restrict it. For example, the government can restrict speech by its employees if necessary to the employment role. For example, a public school teacher can be prohibited from promoting religious theory to students, and a national security employee can be prohibited from sharing confidential information. 

In contrast, in Pickering v. Board of Education (1968), the Supreme Court ruled the government employer’s interest was not strong enough to overpower the free speech right of a public school teacher. The teacher had published a criticism of the school’s allocation of funds between educational and athletic programs. The Court ruled the teacher’s statements “were neither shown nor could be presumed to have interfered with [his] performance of his teaching duties or the schools' general operation [and] were thus entitled to the same protection as if they had been made by a member of the general public.”

Categories of Unprotected Speech

Certain types of speech have “low” First Amendment value. This list from the National Constitution Center identifies several types of speech that have low or no First Amendment protection:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

The Government Can Make Reasonable Content-Neutral Restrictions

The government cannot discriminate against someone based on her views. The government creates laws to maintain peace and order in the country, but the government cannot use its powers to enforce a particular view or to try to silence certain views. First Amendment challenges against laws have alleged that a law appears to apply equally to everyone but it tends to silence certain views. 

   The First Amendment says that the government may make reasonable speech restrictions, but the government may not favor or disfavor a certain idea over others. 

For a speech restriction to be reasonable, the government must have a good interest for regulating or censoring speech. In 1939, the Supreme Court ruled a “law prohibiting all demonstrations in public parks or all leafleting on public streets” was unreasonable (National Constitution Center, citing Schneider v. State).

In 1992, the Supreme Court invalidated a criminal ordinance which prohibited the display of a symbol which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” (R.A.V. v. City of St. Paul). The Court said the government cannot prohibit speech based on the ideas expressed, and by restricting racist speech (and not positive speech), the ordinance violated the First Amendment.

Government regulations often require businesses to follow certain procedures or to provide certain notices in going about their business. Some cases have argued that business regulations require them to speak against their views in violation of the First Amendment. For example, in NIFLA v. Becerra (2018), pro-life women’s health clinics argued California regulations requiring them to provide certain notices about abortions violated their speech rights. The Supreme Court ruled the notices were likely in violation of the First Amendment because they regulated based on the content of the speech.

Recently the Supreme Court struck a rule of the Patent and Trademark Office that barred trademarks on “immoral or scandalous matter” (Iancu v. Brunetti, 2019). The Court also ruled against a content-based exception to a reasonable regulation against robocalls for purposes of debt collection. The government could not exclude calls for the collection of government debt from the general rule (Barr v. American Association of Political Consultants).

   Levels of Scrutiny

Levels of Scrutiny

View our graphic explainer!

When a court determines that a government law or policy restricts speech based on its content or viewpoint, the court will scrutinize the law to determine whether the purpose it serves is important enough to justify the speech restriction. The court will determine which level of scrutiny to apply based on the type of speech restriction, or the type of speech being restricted. 

When it comes to a viewpoint-based speech restriction, the government must pass a high bar. A court will apply strict scrutiny. To pass strict scrutiny, the government must have a compelling interest to restrict the speech and the law must be “narrowly-tailored” to restrict the speech and only that speech. Similarly, if the government is restricting political speech, it must pass strict scrutiny because political speech deserves a high level of First amendment Protection.

Some types of speech get less First Amendment protection. Commercial speech -- speech aimed to sell something -- is one type of speech that is not as highly valued by the First Amendment. Thus restrictions on commercial speech usually get intermediate scrutiny when evaluated by courts. See this report from the Congressional Research Service for a listing of categories of speech and the treatment they get from courts.

Political Speech

Freedom of speech and expression are necessary to democracy because they encourage a diversity of views and debate.

A person should be able to promote her political views. Political speech is at the heart of the First Amendment because hearing and debating a diversity of views is necessary to a properly functioning democracy. The First Amendment prohibits the government from restricting political speech. This includes one’s right advocate politically, petition the government, rally others towards a cause, and especially one’s right to vote.

The First Amendment may also protect one’s right to spend money on a political cause. The value of money as speech — and whether the First Amendment protects it — has become a large and controversial topic. In 1976, the Supreme Court ruled that the government can impose limits on the amount of money an individual can contribute to a political campaign and a candidate because monetary limits protect our democracy against unscrupulous practices. However, in the same case, the Supreme Court ruled that various limits on expenditures in campaigns were invalid speech restrictions. Buckley v. Valeo (1976). In a controversial 2010 case, the Court ruled that corporations qualify for First Amendment protection and that they can spend unlimited money on political broadcasts in candidate elections. Citizens United v. FEC.

In Texas v. Johnson (1989), the Supreme Court determined that flag-burning is protected political speech and invalidated a Texas law outlawing flag desecration.

Recent Supreme Court Rulings, Political Speech

Recent Supreme Court cases on political speech demonstrate the diversity of issues coming under its banner. Janus v. AFSCME was the most controversial of recent cases. In Janus, the court addressed whether a state could require public employees to pay union collective bargaining fees. An Illinois employee argued that requiring him to support a union’s activities by paying the union required him to support a political idea in which he did not believe. Janus won in a 5-4 ruling with the support of the conservative wing. The case highlights how the First Amendment can prevent the government from providing what it determines is a public benefit (i.e. collective bargaining).

Minnesota Voters Alliance v. Mansky invalidated a rule prohibiting people from wearing political insignia at polling places. Thompson v. Hebdon remanded a case regarding the validity of an Alaska limit on campaign contributions, requiring the lower court to conduct a proper review of First Amendment concerns.

   Rights of assembly, association and petition

The First Amendment also includes the rights to assemble, to associate with others, and to petition the government. These rights ensure that people have the opportunity to speak out and to rally others in support of their political views.

On October 5, 2020, the Supreme Court will hear Carney v. Adams, in which someone seeking a position on the Delaware judiciary claims a Delaware constitutional rule violates his right to freedom of association. The Delaware Constitution requires that positions on the state’s highest courts are split between the two major political parties. Adams, an independent, argues the law pressures him to associate with one of the two major political parties, or to give up his candidacy. Stay tuned for our reports on this case and other Supreme Court First Amendment issues.

More information:

For more information on free speech and free expression, see:

National Constitution Center, Freedom of Speech and the Press, Interactive Constitution (last visited Aug. 17, 2020).

Congressional Research Service, The First Amendment: Categories of Speech (Jan. 2019).

ACLU, Free Speech (last visited Aug. 17, 2020).

ACLU, Freedom of Expression (last visited Aug. 17, 2020).

History.com, First Amendment (last updated Sept. 25, 2019).

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Carney v. Adams (Argument October 5, 2020)

Argument: October 5, 2020

Decision: TBA

Petitioner Brief: John C. Carney, Governor of Delaware

Respondent Brief: James R. Adams

Court below: Third Circuit Court of Appeals

 Delaware’s Attempts to Provide Political Balance in its Judiciary Leave One Independent Feeling Left Out

In the late 1800s, Delaware had a problem with political imbalance in the state courts. Delaware high court positions were chosen by the governor of the state, who often chose judges and justices exclusively from his political party. 

The Apolitical Judiciary

Courts are supposed to be nonpolitical. In many states, like in Delaware, and in the federal government, judges are not elected. Not requiring them to pursue election or reelection allows them to escape the desire to please those who support their campaigns. Judges are meant to read and interpret the law, not to have policy preferences. 

Delaware’s Political Balance Provisions

Delaware resolved the issue of political imbalance on the courts by placing requirements on the party affiliations of members of certain state high courts. In the Delaware Supreme Court, for example, out of five total justices, three of them must come from one major political party and the other two must come from the other major political party. The Delaware Superior Court has a similar rule, limiting judges of one major party to a bare majority of the seats and reserving the rest for the other major party. For two other courts, the law limits the judges of one party to a “bare majority” but doesn’t necessarily reserve the other spots to the other “major party.”

James Adams, the Independent

James Adams is a Delaware lawyer who has worked in the Delaware government in several positions. At the time, Adams was a registered Democrat. 

In 2017 Adams decided that he wanted to be a judge. Adams describes in his brief to the Court that the Democratic Party wasn’t doing it for him anymore, and he changed to register as “Unaffiliated.” 

There were vacancies on the Delaware Supreme Court and on the Superior Court at the time, but those positions were reserved for Republicans, so Adams was not eligible. Moreover, as an Independent, Adams wouldn’t have a shot even if other positions on those courts opened up. 

There are, however, two courts that only have “bare majority” restrictions (and not “major party” restrictions). Adams might have had a chance as an Independent applying on either of those two courts. 

Adams Claims Violation of First Amendment Right of Association

Adams sued in federal court, arguing the Delaware political balance provisions violate his First Amendment right to freedom of association. He claims the law pressures him to choose between pursuing a judgeship and expressing his sincere political preferences (desiring not to affiliate with either major political party).

Rulings in the Courts Below

The district court ruled Adams had valid claims in challenging both the “major party” requirements and the “bare majority” requirements. The judge ruled the entire set of limitations on the judicial seats unconstitutional because she determined that political affiliation is not necessary to effective judicial decision-making. 

Delaware appealed, and got the Third Circuit appellate court to agree that Adams did not have a claim regarding the provisions that included only a “bare majority” restriction. The Third Circuit affirmed the lower court (in favor of Adams) regarding the restrictions that left no space at all for independents. Those are the restrictions with “major party” provisions, meaning all seats on applicable courts were restricted to people of the two major political parties. 

The Elrod/Branti Analysis

In ruling the partisan balance provisions with “major party” restrictions unconstitutional, the Third Circuit relied on a pair of cases, Elrod v. Burns (1976) and Branti v. Finkel (1980). 

In Elrod and Branti, the Supreme Court evaluated when a government position may be conditioned on political party affiliation without violating the First Amendment freedom of association.

The Third Circuit recounted the rationale in Elrod:

In Elrod v. Burns , Justice Brennan, writing for the plurality, recognized that the practice of patronage dismissals—dismissing a civil servant because his political affiliation differed from the political party in power—is "inimical to the process which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment." He explained that to justify terminating a public employee based on political allegiance, the government must show that the practice "further[s] some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights."

Elrod restricted dismissals based on party affiliation for government positions to those positions involving policymaking. Several years later, in Branti, the Court further clarified when a court can allow a government position to be conditioned on party affiliation:

The ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Given these precedents, the Third Circuit analyzed whether a judicial role is either a policymaking role or whether party affiliation is an “appropriate requirement” for performing the role of a judge. The Third Circuit determined that neither characterization applies. Judges are interpreters of the law; not law-makers. Their duties do not depend on their policy interests, and their policy interests are actually not appropriate factors in the work of judges. 

The Supreme Court Appeal

Delaware appealed the Third Circuit ruling, arguing that (a) Adams doesn’t actually have standing to challenge even the provisions with the “major party” restriction; (b) the Court failed to recognize that party affiliation may be an appropriate requirement for a judge; and (c) the Court improperly scrutinized whether the political balance provisions were narrowly tailored to serve the government’s interest in political balance.

Delaware’s (Carney’s) Arguments 

Regarding standing, Delaware argues Adams was never that invested in gaining a role on the judiciary. The facts show that Adams was only interested in changing his party affiliation so that he could challenge the law. Thus we don’t know whether Adams might apply for a judicial position in the future, and Adams can’t argue that he was planning to in order to get standing. His past actions certainly don’t evidence a genuine intention.

Regarding whether party affiliation can be an appropriate requirement for a judge, Delaware argues the Third Circuit did not properly evaluate the role that party affiliation can play in a judge’s work. Although judges are not policy-makers, Delaware says, taking account of their political opinions can help ensure bipartisan decision-making on the court. Further, judges do make common law, which is different than legislative or executive lawmaking but nevertheless “policy-making” of a certain type. 

As an additional argument, Delaware points out that the Constitution guarantees states have control over the qualifications of high-level government officers, judges included, and the state’s right to create bipartisan balance in its courts should prevail in the case. 

Lastly, Delaware argues that the Third Circuit too quickly rejected the state’s arguments that, even admitting the law places a restriction on the right of association, the law is passable because it is narrowly tailored to the “vital state interest” of “public confidence in judicial integrity.”

Adams’ Arguments

Regarding standing, Adams argues he is, in fact, harmed by the political imbalance provisions, which prevent him from gaining a position because he is neither a Democrat or a Republican. As Adams stated in a deposition, he would have applied for a judicial post if they were available to him as an Independent. Adams argues he does not need to show that he had a good chance of being selected as judge, “only that there is a government-imposed barrier that excludes him from a judgeship based on his political affiliation.”

Adams supports the Third Circuit’s application of the Elrod and Branti analyses to his case. As summarized in his brief:

Political affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge. Judges are required to put aside their political views and decide cases based on neutral principles. Any “policy” judges make are in furtherance of the cases before them, and not in furtherance of partisan political interests. Courtroom judges are not supposed to protect the interests of their party, like election judges do.  

Adams argues that the political balance provisions are not “narrowly tailored” to serve a compelling state interest. If the state is going for political balance and judicial integrity, there are other ways to get there. In fact, Delaware’s rules ensure a majority of judges come from one political party, so the state is giving the majority party a chance to implement its desires. There are other rules of judicial behavior that act to keep the court from being too political, Adams notes. Thus, he argues, the political balance provisions he challenges are not narrowly tailored to promote partisan balance. There are many other ways to serve the same goal without infringing on First Amendment rights.  

Severability

A last issue which is relevant to the parties is whether the “major party” provision can be “severed,” or separated from the “bare majority” provisions.

For some courts, both restrictions are applicable. And for others, only the “bare majority” restriction is applicable. The Third Circuit ruled that the bare majority provisions don’t -- alone -- violate the First Amendment. However, does that mean a court can just strike the “major party” requirement from those provisions that have both? Or if the provision has both requirements, the whole provision must fall?

Delaware argues the “bare majority” aspect of one provision can remain even if the “major party” aspect of the provision must fall. Adams argues to the contrary, which is what the Third Circuit ruled. When Delaware determined that the state Supreme Court, Superior Court and Chancery Courts should have both restrictions, it struck a certain balance. Without one aspect of that balance (the “major party” restriction), we can’t be sure the lawmakers would have wanted the “bare majority” provision alone. Thus, the entire political balance provisions regarding the Supreme Court, Superior Court and Chancery Court should be stricken.

The Supreme Court will hear arguments on October 5, 2020.

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Standards of Review: De Novo, Clearly Erroneous and Reasonableness

A “standard of review” is an important judicial concept. It determines how much respect an appeals court will give to a decision from the lower court.

When a litigant appeals a case, she argues that the lower court made an incorrect conclusion. And if the court below had done it right, the case would have turned out differently. 

However some conclusions from the trial court are more difficult to overturn on appeal than others. Some of them, specifically conclusions of fact, are very hard to overturn because appeals courts apply a high degree of deference to them.

The “standard of review” dictates how much deference an appeals court will apply.

Background: Roles of the Jury and the Judge

To understand the difference between the standards of review, we consider the roles of the jury and the judge in the court system. 

The jury serves an important role in the American court system. The jury consists of a diverse set of individuals from the community, a set of individuals who can evaluate evidence together and decide which versions of the facts, such as which witnesses, to believe. 

The judge maintains order in the courtroom. Not just order in the sense of keeping the peace, but the legal order. The judge follows legal rules about, for example, what types of evidence to admit (versus types that tend to mislead the jury) and ensures the parties follow many other procedures outlined in court rules. The judge sets the legal backdrop in which the jury makes factual conclusions. If the case requires interpreting a law, the judge determines it.

Decisions of fact versus decisions of law

The jury evaluates facts. That’s its role in the judicial system. It is the jury’s job to make a conclusion about evidence, such as whether a handwriting sample belongs to the defendant, or if the witness description of an event is accurate. When a jury makes a conclusion, the judicial system affords it high respect. That’s because the only time the parties “make their cases,” or display the facts of the case in a persuasive manner, is at trial. The jury is there to see it. The appeals judges will not have been.

A decision of law, on the other hand, is a question in the judge’s realm. Litigants have more success appealing a question of law to an appeals court because appeals courts give less deference to conclusions of law by trial courts. That’s because an appeals judge is a higher expert of law than a trial judge is. It doesn’t take a replay of the facts of the case for an appeals judge to review a legal conclusion. Often, it can be done through briefing and legal arguments.

Judge as the fact-finder

Sometimes the judge will act as the fact-finder. In cases where a jury is not present, the trial judge sees the presentation of facts and makes factual conclusions that would otherwise be in the realm of the jury. Just like the jury is afforded great deference when it makes factual conclusions, so is the trial judge. 

Reasonableness standard of review (or substantial evidence)

Appeals courts apply the reasonableness standard of review to a conclusion of fact made by a jury. 

An appeals court will only overturn a conclusion under the reasonableness standard if the appeals court finds that no “reasonable” trier of fact could have made the conclusion based on the evidence it saw. Again, because the appeals judges were not there to see the initial presentation of facts, it’s a high bar to overturn a jury’s factual conclusion.

The Supreme Court explained the reasonableness standard in a 1979 criminal case:

A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A "reasonable doubt," at a minimum, is one based upon "reason." Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal citations omitted).

This standard of review is also called the “substantial evidence” standard of review because it allows an appeals court to overturn a fact-finding conclusion if the conclusion has no substantial evidence to support it. 

Clearly erroneous standard of review

Appeals courts apply the clearly erroneous standard of review to a conclusion of fact made by a judge. That means the court will only overturn the conclusion if the court finds it to be clearly wrong. 

This standard is nearly the same degree of deference as is afforded in the “reasonableness” standard, but it is slightly higher, meaning an appeals court will have to find a slightly greater degree of wrongness in the conclusion in order to overturn it.

A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). 

De novo standard of review

Appeals courts apply the de novo standard of review to questions of law. A question of law is a legal conclusion made by a judge. Our judicial system deems an appeals court judge a higher expert of legal decision-making than a trial judge, or even than a lower appeals court judge. Thus, an appeals court is free to take a “fresh look” at a legal conclusion.

In de novo review, a court can apply a fresh analysis to the conclusion, without giving any deference to the lower court’s decision. Questions on appeal under de novo review are easier to overturn than under the other deferential standards.

Mixed questions of law and fact

Of course there’s a middle ground. Sometimes a question on appeal addresses whether the lower court correctly applied the facts to a legal analysis. The Supreme Court described a mixed question of law and fact as one in which the facts are established, the law is determined, but the issue involves whether the facts were correctly applied to the law. Pullman-Standard v. Swint, 456 U.S. 273, n.19 (1982).

In such a case, a court may conduct a preliminary analysis to determine whether the conclusion required primarily legal or factual work. Lawyers will argue on this point, obviously, because the difference between a de novo standard and clearly erroneous, for example, can make or break the appeal.

More information

For more information on standards of review, see this report by the Georgetown University Law Center.

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Appellate Review of Jury Verdict Will Play a Central Role in Google v. Oracle Case

The Supreme Court will hear Google v. Oracle in the first week of the fall term. The case asks whether Google made "fair use" in copying Java computer code for development of its Android operating system. The parties submitted their merits briefs earlier this year, but since then the Court has asked them to file additional briefing on whether the appeals court used the proper standard of review to overturn a jury verdict in favor of Google.

Background

View our graphic explaining the software issues in Google v. Oracle

In 2010, Oracle sued Google for copyright infringement. Oracle claims Google’s illegal use of its Java software code cost it $9 billion. 

After trial, a jury concluded that Google’s use of the copied Java APIs was “fair” and therefore immune from copyright infringement and damages. The Court of Appeals for the Federal Circuit ruled “fair use” is a legal question for a judge to decide based on factual conclusions of the jury. Thus, it reviewed de novo the jury’s conclusion that Google’s use was fair, and ultimately ruled against Google. The Federal Circuit ruling wiped out Google’s defense to copyright infringement. Google appealed the infringement and fair use holdings to the Supreme Court.  

Request for Supplemental Briefing

The Court requested that Google and Oracle file supplemental briefs addressing (1) the standard of review for determining whether trial evidence was sufficient to support the jury’s fair use verdict (in favor of Google) and (2) any impact of the Seventh Amendment on that standard. 

The Seventh Amendment says that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”  The phrase “rules of the common law” refers to legal rules that existed in 1791 England.  Dimick v. Schiedt, 293 U.S. 474, 487 (1935).

Oracle’s Supplemental Arguments 

In its supplemental brief, Oracle argues the Federal Circuit correctly applied a de novo standard of review.  Generally, a court is limited to factual determinations of the jury.  However, a court is allowed to review de novo (with a “fresh look”) how the law is applied to the jury-determined facts.  Fair use is primarily a legal question because the analysis requires legal judgment to balance the competing policies of rewarding innovation, protecting the author’s property rights and furthering the constitutional mandate of “promoting progress of science and useful arts.”  

Oracle notes that fair use also implicates First Amendment concerns.  For example, parody, satire, news reporting, criticism, education, research, and other core applications of fair use are part of copyright’s “built-in First Amendment accommodations.”  Therefore, de novo review is appropriate when reviewing a fair use jury verdict because judges, not juries, are best suited to protect the stability and development of First Amendment protections.

Oracle also argues that whether fair use is reviewed de novo or not makes no difference in this case.  A party is always entitled to judgment as a matter of law, despite a contrary jury verdict, if the jury verdict is clearly erroneous.  In this case it was unreasonable for the jury to hold that Google’s reuse of Oracle’s software for a platform that directly competes with Java was fair.  Therefore, no reasonable jury would have legally sufficient evidentiary basis to conclude that Google’s use of the Java APIs was fair.

Oracle argues that the Seventh Amendment’s prohibition on re-examining facts does not prevent courts “from determining whether governing rules of federal law have been properly applied to the facts.”  New York Times Co. v. Sullivan, 376 U.S. 254, 284-85 (1964).  Furthermore, no Seventh Amendment right applies in this case because fair use was not a recognizable defense in 1791, and no comparable defense was tried by juries at that time.  

Google’s Supplemental Arguments

In its supplemental brief, Google argues that the Federal Circuit erroneously overruled the jury verdict.  The Supreme Court recently reaffirmed that fair use is a “notoriously fact sensitive” issue that “often cannot be resolved without a trial.”  Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1513 (2020).  The trial in this case lasted two-and-a-half weeks.  The jury heard testimony from seventeen live witnesses, deposition testimony of a dozen witnesses and was presented with about 200 trial exhibits.  

A jury verdict may only be overturned if a “rational trier of fact” could not have reached the jury’s conclusion.  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-151 (2000).  The district court properly rejected Oracle’s post-verdict motions and correctly concluded that a reasonable jury, after weighing all the evidence and applying the court’s instructions, could find that Google’s use was fair.  Because fair use is such a fact intensive inquiry, it is hard to see how the Federal Circuit could rule de novo on fair use while remaining true to the jury’s factual conclusions.  

Finally, Google argues that under the Seventh Amendment, it has a constitutional right to a jury trial on fair use.  Google argues that early English cases demonstrate that juries decided questions of copyright liability, including early precursors of what would later evolve into the fair use defense.

  contributor

Jacob Baldinger is a partner at Weiss & Arons LLP in Spring Valley, NY, and advises on intellectual property procurement and enforcement.

 View our reports on copyright Law:

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Absentee Voting: Supreme Court Acts on Emergency Applications from Alabama and Rhode Island

Photo by Element5 Digital from Pexels

States are implementing new voting policies in light of the pandemic, increasing the opportunities for people to vote by mail, or by absentee voting. Some states require absentee voters to submit additional forms of verification, such as a copy of a photo ID and signatures of witnesses or a notary. 

Given that health officials recommend social distancing during the COVID-19 pandemic, voters have brought lawsuits against several states’ witnessing/notarizing requirements. Federal appeals courts have agreed with voters in two states, Alabama and Rhode Island, ruling against those states’ witnessing/notarizing requirements.

In each case, supporters of the witnessing requirements applied to the Supreme Court asking for an emergency order that would allow the state to keep the requirements. In the case arising from Alabama, the Secretary of State and the State of Alabama itself filed the Supreme Court application for relief. In Rhode Island, it was the Republican National Committee and the Republican Party of Rhode Island who filed with the High Court. 

The Supreme Court treated the two cases differently based on who filed the applications. In the case out of Alabama, the Court granted the emergency stay, reinstituting the witnessing requirements. However, in the case from Rhode Island, the Court rejected the application for a stay, noting that it would not follow the Alabama ruling because the requesting parties (the Republication National Committee and Rhode Island Republican Party) did not have the same interests in defending the laws of the state as the state itself would have.

Read more at SCOTUSblog.

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What are "Protected Classes"?

Discrimination in the employment context: which groups get federal protection?

Not all unfair treatment is a violation of the law. In the employment context, for example, courts have noted they are not “super-personnel” departments meant to second guess every employment decision (see, e.g., Johnson v. Weld County (10th Cir. 2010); Chapman v. AI Transp. (11th Cir. 2000). Instead, the civil right statutes only prohibit actions that occur because of a person’s membership in a protected class. Congress has extended protections to specific groups who have historically faced hardships in obtaining employment, housing, and other public accommodations

What are the protected classes?

Under federal law, employers cannot discriminate on the basis of race, color, national origin, religion, sex, age, or disability. The law is not, however, a blanket bar on employers taking into account a person’s membership in one of these groups in all circumstances. For example, employers may consider membership in a protected class when making employment decisions if there is a business necessity for doing so, or if membership in a protected class is a bona fide occupational qualification. There are also certain criteria that must be met in order to be considered a member of protected class, such as being a qualified individual with a disability to be entitled to reasonable accommodations in the workplace.

History of the protected class

Race and color were the earliest protected classes. The Civil Rights Act of 1866 prohibits discrimination “in civil rights or immunities . . .on account of race, color, or previous condition of servitude.” Section 1981(a) of the Act barred discrimination in the making of contracts on the basis of race and color, which is understood to include employment contracts.

The protected classes grew significantly in the 20th Century, beginning with the passage of the Civil Rights Act of 1964. Title VII of the Act prohibits discrimination in employment on the basis of race, color, national origin, sex, and religion. The Act also created the Equal Employment Opportunity Commission (“EEOC”), the independent federal agency that oversees the enforcement of Title VII and the other civil rights acts as they apply to employment.

In 1967, Congress added age to the listed of protected classes with the Age Discrimination in Employment Act (“ADEA”). The ADEA only applies to individuals age 40 and older, and the federal courts have interpreted it narrowly over time, generally requiring more than a year or two age difference between employees to support a finding of age discrimination.

Disability first entered the list of protected classes in a limited way in 1973. The Rehabilitation Act of 1973 prohibits discrimination based on disability in federal employment. Employees in the private sector gained similar protections in 1990 with the passage of the Americans with Disabilities Act (“ADA”). Congress expanded the definition of who is covered by the ADA in 2008 with the Americans with Disabilities Amendments Act.  

Protections against harassment

Title VII states that an employer may not discriminate against an employee or applicant for employment “because of” the person’s race, color, national origin, sex, or religion. The statute does not specifically reference harassment, or the creation of a hostile work environment that may include non-economic harms such as name calling or inappropriate touching. In Meritor Savings Bank (1986), the Supreme Court recognized that such harassment, although it might not rise to the level of distinct economic harms such as a demotion or firing, is covered by Title VII.  This interpretation also encompasses the other civil rights statutes, and includes harassment based on retaliation.

The Supreme Court limited the reach of Title VII’s harassment protections in Meritor Savings to only those instances where the harassment is so “severe or pervasive” that it alters the terms and conditions of the employment. Since then, courts across the country have had to determine on a case-by-case basis what harassment is sufficiently severe or pervasive to meet this standard.  Generally there must be multiple incidents of harassment to meet the standard. In only very limited circumstances, such as the use of specific racial slurs or the hanging of a noose, is a single incident sufficiently severe.

The ongoing evolution of sex as a protected class

In Price Waterhouse v. Hopkins (1989), the Supreme Court held that sex stereotyping is a form of prohibited sex discrimination. In Hopkins, Price Waterhouse denied Ms. Hopkins a position as a partner. The partnership committee based its decision on Ms. Hopkins not behaving as they expected a woman to in the workplace. For example, Ms. Hopkins received feedback that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” The Court concluded that allowing such discrimination would undermine the purpose of Title VII.

The concept of sex stereotyping is an important part of more recent developments in the area of protected classes. Two federal courts of appeals and the EEOC have concluded that Title VII prohibits discrimination based on sexual orientation because it is a form of sex discrimination.  These courts have concluded that sexual orientation discrimination is based on stereotypes of who an individual should be attracted to based on the individual’s sex. As the EEOC noted in Baldwin v. Department of Transportation (2015), “‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.”  

The Bostock Supreme Court ruling

In June 2020, the Supreme Court issued a decision in Bostock v. Clayton County, Georgia, holding that Title VII’s prohibition against discrimination “because of  . . . sex” encompasses discrimination based on sexual orientation and gender identity.  The Court rested its decision on the plain language of the statute, which bars an employer from treating an employee worse than others because of the employee’s sex, and concluded that any action taken because of sexual orientation or gender identity inherently involves a consideration of an employee’s sex.  The Court illustrated this through several examples, including a hypothetical involving a model employee introducing a woman as the employee’s spouse at a company holiday party.  The Court explained that whether the employee would fire the employee for violating a policy against employing gay or lesbian employees would turn on the sex of the employee—if the employee is a man, the company will not fire him.  If the employee is a woman, the company will terminate her employment.

By relying on the plain language of the statute, the Court did not need to reach the question of whether sexual orientation or gender identity discrimination involves sex stereotyping.  It also did not expand Title VII to include new protected classes, as the dissenting justices asserted.  Instead, the Court clarified that sexual orientation and gender identity discrimination are forms of sex discrimination

Conclusion

Protected classes are how federal law conceptualizes protections against discrimination. The understanding of the classes may continue to evolve, either incrementally through courts or through federal legislation. Societal responses to new issues of discrimination generally start the process.

Editor’s Note: This report was updated to include a discussion of the June 2020 Bostock Supreme Court ruling. The original report was published December 4, 2018.

Meghan Droste

Meghan is a Senior Associate with Wilkenfeld, Herendeen & Atkinson in Washington, DC, focusing on employment discrimination litigation. She also serves as an instructor with the Federal Employment Law Training Group, educating federal employees on substantive and procedural issues in federal employment.

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Prominent Conservative Voices Against Trump

Support for the president wanes after poor response to the pandemic and nationwide protests.

Supporting Donald Trump, or at least his actions, has become harder lately. Trump’s response to the pandemic and to nation-wide protests against police brutality have shown the president’s ego controls his policy actions. 

The following prominent conservative voices have spoken out against Trump:

James Mattis

“Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead, he tries to divide us.”

James Mattis, the highly respected Marine general who acted as Trump’s Secretary of Defense before resigning in late 2018, initially declined to criticise the president. He said he did not want to harm existing officers’ opportunity to defend the country. He said he owed a certain period of silence, but that he would not keep quiet forever.

Mattis’s silence lasted until Trump used tear gas on peaceful protestors for a photo op. Here are Mattis’s words of condemnation:

IN UNION THERE IS STRENGTH

I have watched this week’s unfolding events, angry and appalled. The words “Equal Justice Under Law” are carved in the pediment of the United States Supreme Court. This is precisely what protesters are rightly demanding. It is a wholesome and unifying demand—one that all of us should be able to get behind. We must not be distracted by a small number of lawbreakers. The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values—our values as people and our values as a nation.

When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.

We must reject any thinking of our cities as a “battlespace” that our uniformed military is called upon to “dominate.” At home, we should use our military only when requested to do so, on very rare occasions, by state governors. Militarizing our response, as we witnessed in Washington, D.C., sets up a conflict—a false conflict—between the military and civilian society. It erodes the moral ground that ensures a trusted bond between men and women in uniform and the society they are sworn to protect, and of which they themselves are a part. Keeping public order rests with civilian state and local leaders who best understand their communities and are answerable to them.

James Madison wrote in Federalist 14 that “America united with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than America disunited, with a hundred thousand veterans ready for combat.” We do not need to militarize our response to protests. We need to unite around a common purpose. And it starts by guaranteeing that all of us are equal before the law.

Instructions given by the military departments to our troops before the Normandy invasion reminded soldiers that “The Nazi slogan for destroying us…was ‘Divide and Conquer.’ Our American answer is ‘In Union there is Strength.’” We must summon that unity to surmount this crisis—confident that we are better than our politics.

Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership. We can unite without him, drawing on the strengths inherent in our civil society. This will not be easy, as the past few days have shown, but we owe it to our fellow citizens; to past generations that bled to defend our promise; and to our children.

We can come through this trying time stronger, and with a renewed sense of purpose and respect for one another. The pandemic has shown us that it is not only our troops who are willing to offer the ultimate sacrifice for the safety of the community. Americans in hospitals, grocery stores, post offices, and elsewhere have put their lives on the line in order to serve their fellow citizens and their country. We know that we are better than the abuse of executive authority that we witnessed in Lafayette Square. We must reject and hold accountable those in office who would make a mockery of our Constitution. At the same time, we must remember Lincoln’s “better angels,” and listen to them, as we work to unite.

Only by adopting a new path—which means, in truth, returning to the original path of our founding ideals—will we again be a country admired and respected at home and abroad.

Read a discussion at The Atlantic.

At the NYTimes see condemnations of Trump by other retired military leaders regarding Trump’s use of troops against Americans.

50 GOP Former National Security Officials

“Mr. Trump lacks the character, values, and experience to be President. He weakens U.S. moral authority as leader of the free world. He appears to lack basic knowledge about and belief in the U.S. Constitution, U.S. laws, and U.S. institutions, including religious tolerance, freedom of the press, and independence of the judiciary.”

Before Trump gained the Republican nomination for President, his group of critics in the Republican party was large. By the time Trump became President, the leading voices in the Republican party were all Trump supporters. But here are some GOP officials who refused to kneel to Trump and spoke out clearly from the start.

Shortly after Trump gained the Republican nomination, 50 senior Republican national security officials issued a letter stating “None of us will vote for Donald Trump.” Here is what they had to say:

The undersigned individuals have all served in senior national security and/or foreign policy positions in Republican Administrations, from Richard Nixon to George W. Bush. We have worked directly on national security issues with these Republican Presidents and/or their principal advisers during wartime and other periods of crisis, through successes and failures. We know the personal qualities required of a President of the United States.

None of us will vote for Donald Trump.

From a foreign policy perspective, Donald Trump is not qualified to be President and Commander-in-Chief. Indeed, we are convinced that he would be a dangerous President and would put at risk our country’s national security and well-being.

Most fundamentally, Mr. Trump lacks the character, values, and experience to be President. He weakens U.S. moral authority as the leader of the free world. He appears to lack basic knowledge about and belief in the U.S. Constitution, U.S. laws, and U.S. institutions, including religious tolerance, freedom of the press, and an independent judiciary.

In addition, Mr. Trump has demonstrated repeatedly that he has little understanding of America’s vital national interests, its complex diplomatic challenges, its indispensable alliances, and the democratic values on which U.S. foreign policy must be based. At the same time, he persistently compliments our adversaries and threatens our allies and friends. Unlike previous Presidents who had limited experience in foreign affairs, Mr. Trump has shown no interest in educating himself. He continues to display an alarming ignorance of basic facts of contemporary international politics. Despite his lack of knowledge, Mr. Trump claims that he understands foreign affairs and “knows more about ISIS than the generals do.”

Mr. Trump lacks the temperament to be President. In our experience, a President must be willing to listen to his advisers and department heads; must encourage consideration of conflicting views; and must acknowledge errors and learn from them. A President must be disciplined, control emotions, and act only after reflection and careful deliberation. A President must maintain cordial relationships with leaders of countries of different backgrounds and must have their respect and trust.

In our judgment, Mr. Trump has none of these critical qualities. He is unable or unwilling to separate truth from falsehood. He does not encourage conflicting views. He lacks self-control and acts impetuously. He cannot tolerate personal criticism. He has alarmed our closest allies with his erratic behavior. All of these are dangerous qualities in an individual who aspires to be President and Commanderin-Chief, with command of the U.S. nuclear arsenal.

We understand that many Americans are profoundly frustrated with the federal government and its inability to solve pressing domestic and international problems. We also know that many have doubts about Hillary Clinton, as do many of us. But Donald Trump is not the answer to America’s daunting challenges and to this crucial election. We are convinced that in the Oval Office, he would be the most reckless President in American history.

See the letter and its signatories here.

Colin Powell

“This is not the way the country’s supposed to run, and Congress is one of the institutions that should be doing something about this . . . [T]he Constitution started with, ‘We the People,’ not ‘Me the President.'”

Former Secretary of State Colin Powell did not sign the 2016 letter from national security officials opposing Trump, but since then, Powell has made his disapproval of the President clear. Most recently, Powell pledged his support for Biden in 2020, calling Trump a liar and saying Trump is bad for the country.

Trump’s foreign policy actions contributed to Powell’s disapproval of the president. In October 2019, President Trump caught his military advisors off-guard with a sudden decision to pull troops out of northern Syria. The U.S. troops were in northern Syria protecting allies and were still necessary to maintain stability in the area, according to senior U.S. officials. Trump’s move baffled many, as reported by Fox News. 

Following Trump’s decision to pull the troops, Colin Powell — who had until then restrained his criticism of Trump — spoke out: 

The Republican Party has got to get a grip on itself. Right now, Republican leaders and members of the Congress, in both the Senate and in the House, are holding back because they’re terrified of what will happen to any one of them if they speak out,” he said. “Will they lose a primary? I don’t know why that’s such a disaster, but will they lose a primary?

And so, they need to get a grip, and when they see things that are not right they need to say something about it, because our foreign policy is in shambles right now in my humble judgement.

Powell brought up a time when Trump made his own nonsense meteorological hypothesis about the trajectory of hurricane.

In my time, one of us would have gone to the president and said, ‘Mr President, you screwed up, so we’ve got to fix it and we’ll put out a correction.’ You know what they did this time? They ordered the Commerce Department to go out and backup whatever the president mis-said. This is not the way the country’s supposed to run, and Congress is one of the institutions that should be doing something about this.

The media has a role to play, we all have a role to play, you’ve got to remember that all these pieces are a part of our government. Executive branch, Congress, Supreme Court, and of the Fourth Estate, and we’ve got to remember that the Constitution started with, ‘We the People,’ not ‘Me the President.'

See the 2019 interview here.

Conservative Columnist George Will

“In life's unforgiving arithmetic, we are the sum of our choices. Congressional Republicans have made theirs for more than 1,200 days . . . May I never crave anything as much as these people crave membership in the world's most risible deliberative body.”

One very prominent conservative columnist is willing to go as far as to say the Republican party should lose its control of the Senate in addition to the Presidency to restore the loss of morality caused by Trump’s infiltration into the party.

For more than 40 years George F. Will has been a leader of conservative political thought. Will won the Pulitzer Prize for Commentary in 1977, was a contributor for Fox News from 2013-2017, and now contributes for MSNBC and NBC News as well as writes a column in the Washington Post.

Will denounced his membership in the Republican Party as soon as Trump became the candidate. His words today call for the complete destruction of the Trumpian GOP.

In his Washington Post column, Will has words to describe Trump and then even worse words for the Congressional Republicans enabling Trump.

Will’s words regarding Trump:

This weak person’s idea of a strong person, this chest-pounding advertisement of his own gnawing insecurities, this low-rent Lear raging on his Twitter-heath has proven that the phrase malignant buffoon is not an oxymoron.

The president’s provocations — his coarsening of public discourse that lowers the threshold for acting out by people as mentally crippled as he — do not excuse the violent few. They must be punished. He must be removed. …

This unraveling presidency began with the Crybaby-in-Chief banging his spoon on his highchair tray to protest a photograph — a photograph — showing that his inauguration crowd the day before had been smaller than the one four years previous.

And regarding Trump’s enablers, the “senators who still gambol around his ankles with a canine hunger for petting”:

Senate Republicans must be routed, as condign punishment for their Vichyite collaboration, leaving the Republican remnant to wonder: Was it sensible to sacrifice dignity, such as it ever was, and to shed principles, if convictions so easily jettisoned could be dignified as principles, for … what? Praying people should pray, and all others should hope: May I never crave anything as much as these people crave membership in the world’s most risible deliberative body.

In 2016, the Republican Party gave its principal nomination to a vulgarian and then toiled to elect him. And to stock Congress with invertebrates whose unswerving abjectness has enabled his institutional vandalism, who have voiced no serious objections to his Niagara of lies, and whom T.S. Eliot anticipated:

“We are the hollow men . . .

Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

or rats’ feet over broken glass’ . . .”

Read the article at Washington Post (subscription required); discussions at MinnPost, CNN.

Republican Voters Against Trump

“I’m a Republican because I believe in free markets and free trade. Donald Trump is a crony capitalist and protectionist.”

“I don’t believe Trump is an actual Republican. We all took it in and voted for him, but I don’t believe he truly cares about Republican values.”

“I like to say he hijacked the party.”

Each of us has a prominent voice in our own communities. That’s the idea behind this group of voting Republicans who are voicing their disapproval of Trump. On the organization’s website, Republican Voters Against Trump, you can scroll or search videos created by voters expressing dissatisfaction of the president.

The group will spend $10 million campaigning against Trump, publishing ads like this one.

See coverage at NYTimes and Huffpost.

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Georgia v. PublicResource.Org (Decision April 27, 2020)

Argument: December 2, 2019

Decision: April 27, 2020

Petitioner Brief: Georgia

Respondent Brief: PublicResource.Org

Court Below: Eleventh Circuit Court of Appeals

Supreme Court ruled commentary published in Georgia’s official legislative code is not eligible for copyright protection.

On April 27, 2020 in Georgia v. Public.Resource.Org the Supreme Court ruled against the State of Georgia, holding that commentary published in Georgia’s “official” legal code is not eligible for copyright protection. 

The parties

Petitioner, the State of Georgia, contracts with a private company to publish “official” copies of its laws.  The publisher also prepares an “annotated” version of Georgia’s laws called the Official Code of Georgia Annotated (OCGA).  The annotations include commentary such as summaries of relevant judicial opinions, summaries of relevant opinions of the state attorney general, relevant law review articles and other reference materials.  The publisher does not charge the State of Georgia for preparing the annotations and relies on sales of the OCGA for compensation.

Respondent, Public.Resource.Org, Inc. (PRO) is a public interest organization that promotes access to government records and primary legal materials.  It publishes online official codes, rules, regulations, and standards adopted by federal, state, and local authorities.  PRO also scanned and published the OCGA, including the statutory text and annotations.  

Georgia alleged the state holds a copyright in the annotations and sued PRO for publishing the annotations without permission from the state.  

Procedural history

The district court entered an injunction against PRO, prohibiting it from posting the OCGA online.  The Eleventh Circuit reversed, holding that the annotations in the OCGA are not copyrightable.  Both parties agree that, under the “government edicts doctrine,” no one can copyright “the law.”  The parties disagree, however, on the scope of the government edicts doctrine.  

The issue - scope of the government edicts doctrine

Federal Copyright Law grants protection for “original works of authorship.” 17 U.S.C. §102(a).  The Supreme Court has recognized an exception to copyright protection for certain government-produced works.  This exception, known as the “government edicts doctrine,” was established in a trio of nineteenth-century cases.  

In the first case, Wheaton v. Peters, 33 U.S. 591 (1834), the Court held judges do not hold a copyright in their judicial opinions and cannot convey exclusive rights to publish their opinions.  In the second case, Banks v. Manchester, 128 U.S. 244 (1888) the Court clarified that even that non-binding, explanatory legal materials prepared by judges are not copyrightable.  Any work prepared by judges acting in their judicial capacity is “authentic exposition and interpretation of the law, which . . . is free for publication to all.”  In the third case, Callaghan v. Myers, 128 U.S. 617 (1888), the Court limited the government edicts doctrine outlined in Wheaton and Banks.  The Court held an official court reporter is an author that has no authority to speak with the force of law.  Therefore, a copyright subsists in explanatory materials prepared by the reporter. 

Georgia’s view

Georgia argues the government edicts doctrine only applies to legal texts having legal force.  Georgia does not claim a copyright in the OCGA’s statutory text and numbering.  However, the annotations published alongside the statutory text are eligible for copyright protection.  The annotations do not have the force of law – they are not enacted through bicameralism and presentment.  Therefore, they are outside the scope of the government edicts doctrine.  

Additionally, states need copyright protection to induce private publishers to prepare and publish annotated codes at negligible taxpayer expense.  If copyright protection is not available to protect the annotations, it will be harder, not easier, for citizens to access legal research tools, such as the OCGA and its annotations.

PRO’s view

PRO argues that even works that do not have legal force are within the scope of the government edicts doctrine if the work is held out as a “government edict.”  Georgia holds out the OCGA as being published under the State’s authority.  The annotations included in the OCGA are routinely cited by Georgia courts as authentic sources of legal meaning.  The legislative commission that supervises creation of the annotations does so while operating under legislative authority.  Therefore, the OCGA, along with its annotations and statutory text, bears the imprimatur of state authority and falls within the scope of the government edicts doctrine.

The Court’s holding

Justice Roberts, writing for a majority of the Court, held the government edicts doctrine is grounded in construction of the term “author” in the Copyright statute.  Officials responsible for creating the law are not considered the “authors” of “whatever work they perform in their capacity” as lawmakers.  Just as judges are not the “authors” of their opinions and associated explanatory materials, legislators are also not “authors” of the law they promulgate or the commentary they prepare of those laws.  

Copyright eligibility is determined by who created the material and whether it was created in the course of that person’s official duties.  The doctrine does not distinguish between different categories of content.  For example, a dissenting opinion is not copyrightable, even though it does not have the force of law.  Likewise, there is no copyright protection for non-binding legislative materials produced by a legislative body acting in its legislative capacity.  There is no copyright for floor statements, proposed bills, committee reports or any other commentary on laws prepared by a legislature.  

Accordingly, a work prepared by a state legislature acting in its official capacity does not have an “author” entitled to assert copyright protection.  Because Georgia’s annotations are authored by an arm of the legislature carrying out its legislative duties, the government edicts doctrine applies.  Although the annotations are not enacted into law through bicameralism and presentment, they are prepared under legislative authority and provide resources the legislature considers relevant to understanding its laws.  

Georgia argues it now will not be able to induce private publishers to produce affordable annotated codes.  That policy concern is something for Congress to consider, not the courts.

Dissent no. 1: Justices Thomas, Alito and Breyer (in part)

The trio of 19th-century decisions do not provide a detailed explanation of the basis for the government edicts doctrine.  The conduct of 22 States, 2 Territories, and the District of Columbia who all rely on arrangements like Georgia’s to produce annotated codes indicates there may be a different (and narrower) understanding of the doctrine.  And there may be other reasons why the trio of nineteenth-century cases held judicial opinions and commentary are not eligible for copyright. 

Firstly, judicial opinions may not be eligible for copyright because they have binding legal effect, and they are produced and issued at public expense.  Furthermore, even not binding judicial commentary enhances the understanding of the “law.”  A reader of a judicial opinion will gain insight into the reasoning of the majority’s holding by reading all opinions – including dissents and concurrences.  

Unlike judicial opinions and statutes, the Georgia annotations are not law.  The annotations explain how others, not the lawmakers, understand a law.  Although the annotations are “merged” into an “official” legal code, the same Georgia provision mandating the merger expressly provides that “historical citations, title and chapter analyses, and notes set out in this Code are given for the purpose of convenient reference and do not constitute part of the law.”  

Secondly, an author, in the context of copyright law, may be one motivated by the grant of exclusive rights.  Judges, when acting in their official capacity, do not fit that description.  In this case, Georgia needs copyright protection produce the OCGA and recoup its cost of producing the annotations.  

For these reasons, maybe the government edicts doctrine is a limited exception to copyright that only applies to works that have the force of law and are produced by those not motivated by copyright protection.  Such a narrow understanding of the government edicts doctrine would allow the Georgia annotations to be protected by a copyright. 

Dissent no. 2: Justices Ginsburg and Breyer

There is a difference between commentary created by judges and the annotations created by legislators.  Judges are charged with interpreting and applying the law.  On the other hand, the role of the legislature is to make laws and to not interpret the law after their enactment.  The Georgia annotations, are not part of the Georgia Legislature’s lawmaking process.  Firstly, the annotations explain previously enacted statutes.  This distinguishes the annotations from other legislative materials such as committee reports, which are related to enactment of a law.  The placement of annotations in the OCGA for convenience does not alter their auxiliary, non-legislative character.  Accordingly, the Georgia annotations are copyrightable, despite being published by the state legislature while acting in its official capacity. 

A practical takeaway is that authorship is critical when determining whether a work produced by lawmaking official or institution is copyrightable. Any work produced by a lawmaking official or institution acting in an official capacity is not copyrightable – regardless of the specific content.  However, the government edicts doctrine does not apply to non-lawmaking officials.  Therefore, states may assert copyright protection in works created by their non-lawmaking institutions such as universities, libraries, and tourism offices.

  Contributor

Jacob Baldinger is a partner at Weiss & Arons LLP in Spring Valley, NY, and advises on intellectual property procurement and enforcement.

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