12/19/1940: U.S. v. Darby argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
First Amendment Censorship Claims Against Stanford Internet Observatory Can Go Forward to Discovery as to Jurisdiction and Standing
From Hines v. Stamos, decided today by Judge Terry Doughty (W.D. La.):
This case stems from Defendants' alleged participation in censoring Plaintiffs' speech on social media. Defendants are "nonprofits, academic institutions, and researchers alleged to have been involved in examining the issue of the viral spread of disinformation on social-media and the resulting harms to society." Plaintiffs are social media users, each with significant followings, who allege that the acts of Defendants caused Plaintiffs' disfavored viewpoints to be censored—namely their speech concerning COVID-19 and elections. As a result of this alleged past and ongoing censorship, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against Defendants….
The court didn't agree with plaintiffs that they had conclusively established that the federal court in Louisiana had personal jurisdiction over defendants—but it did conclude that plaintiffs had sufficiently alleged facts that would justify further discovery as to personal jurisdiction:
To earn jurisdictional discovery, the movant must first make "a preliminary showing of jurisdiction." A preliminary showing does not require proof that personal jurisdiction exists, but "factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts." In other words, Plaintiffs must state what facts discovery is expected to uncover and how those facts would support personal jurisdiction….
Plaintiffs have alleged—to the point of "possible existence"—that the Stanford Defendants effectuated censorship in Louisiana by "assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech's spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation." And as such, Plaintiffs have adequately alleged that the Stanford Defendants' online activities may support personal jurisdiction. Limited jurisdictional discovery is thus necessary to show to what extent Defendants' online activities were "directed" at the forum state.
And the court held that plaintiffs had sufficiently alleged that they had standing to sue (which in this case means that various platforms had restricted their speech because of the defendants' actions, rather than just because of the platforms' own independent decisions), and were thus entitled to further discovery on this as well:
Institute for Justice Petitions Supreme Court to Take Case Seeking to Overrule Kelo v. City of New London
Kelo is the 2005 ruling in which the Supreme Court held that the government can take property for private "economic development.""
Today, the Institute for Justice filed a cert petition urging the Supreme Court to hear Bowers v. Oneida County Industrial Development Agency, a case in which IJ seeks to overrule Kelo v. City of New London (2005). Kelo is the controversial case in which the Supreme Court held that the government could use eminent domain to take property in order to promote private "economic development." Although the Fifth Amendment states the the government may only take private property for "public use," a narrow 5-4 Supreme Court majority built on earlier precedents to rule that virtually any potential public benefit qualifies as such. The Court also ruled the government need not prove that the supposed public benefit will actually materialize. In the Kelo case itself, it never did, and the condemned property ended up being used mainly by feral cats.
The Institute for Justice is, of course, the public interest firm that represented the property owners in the Kelo case. I wrote about the case, its development, and why the Court got it wrong, in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.
Here is an excerpt from IJ's description of the Bowers case:
Bryan Bowers and his business partner Mike Licata build things. And they pride themselves on building things the people in their upstate New York community actually want and need. That is what led them to buy a plot of land across from a new hospital in Utica, New York: They had heard from doctors in the area that they would happily rent space from a Bowers building if one went up.
Unfortunately, they weren't the only ones with plans for a medical office building near the hospital—or with plans for their newly acquired land. A different group of doctors had formed a private company they called Central Utica, LLC, that had plans for a building next door. After Bryan and Mike signed a contract to buy their new land, Central Utica announced that it wanted Bryan and Mike's land, too—to use as a private parking lot for its building.
Two different people wanting the same thing is nothing new, whether it's toddlers with toys or private businesses with land. The difference is that this dispute happened in New York, where local and state officials sometimes behave like spoiled children.
Central Utica wrote a letter to a local government agency, the Oneida County Industrial Development Agency, asking it to take Bowers' land using eminent domain. Shockingly, the county agreed. In the county's telling, the new private office building would create jobs and economic growth, and that was reason enough to invoke the power of eminent domain. (Bryan, of course, proposed to build an office building that would also have created jobs, and the location was already surrounded by literally thousands of parking spots, including a brand-new multi-level garage, but the county didn't seem troubled by that.)
That may seem like a flimsy basis for taking away someone's private property, but in New York, it's standard procedure. New York is the nation's leading abuser of eminent domain, and it is a stark example of the excesses of one of the Supreme Court's most reviled decisions: Kelo v. City of New London….
Against this backdrop, the condemnation of Bryan's property is just more of the same. Sure, a private business went to the government and asked to be given someone else's private property—but that's not unusual in New York. While most states would have a problem with that, in New York, it took the court all of a paragraph to conclude that the taking was constitutional. If it weren't enough that the new private office building would create jobs, the court identified another secondary benefit that would justify the condemnation: The public, it said, could use the new parking lot at night, when its new private owner didn't need it.
Of course, that isn't true. Once the new owners took over the land, they immediately put up signs making clear that the general public wasn't allowed….
But in New York, that doesn't matter. It doesn't matter whether the public can actually use the land that's being taken, and it doesn't matter that in reality the land is a private parking lot in a sea of public parking spaces—just like it didn't matter in Kelo whether the government would actually build anything at all. All that matters is whether the government can imagine a good reason for the taking.
A rule that says the government can take your property whenever it can imagine a benefit to doing so is just a rule that says the government can take your property whenever it wants to. It will be up to the Supreme Court to decide whether the Constitution demands more than that.
Four current Supreme Court justices have previously expressed interest in overruling or at at least revisiting Kelo. Unlike the recent "passive park" case, this case seems like a good vehicle for doing so. It features a dubious condemnation for private development, and one that also raises a number of issues that could help clarify Kelo's extremely vague standards for what qualifies as a forbidden "pretextual" taking. If the Court doesn't want to overrule Kelo outright, they should at least clarify and strengthen the pretextual taking rules.
As IJ notes, many states have passed eminent domain reform legislation since Kelo or repudiated it as a standard for the public use clauses of their state constitutions. But, as described in my book, many of the reform laws are weak, and still permit a wide range of abusive takings.
I will likely have more to say about this case in future posts.
NOTE: I have worked with the Institute for Justice on various other property rights issues over the years, but have no involvement in this case. However, I may file an amicus brief urging the Supreme Court to hear it.
Odds Are Against TikTok at the Supreme Court
It seems unlikely that five Justices will buy TikTok's First Amendment arguments when neither Judge Douglas Ginsburg nor Judge Neomi Rao nor Chief Judge Sri Srinivasan did so.
The Supreme Court's decision to hear the TikTok divestment statute case is better for TikTok than the alternative: The D.C. Circuit had upheld the statute, and now TikTok has a chance to try to reverse that.
But it's not a high chance, I think, chiefly because the D.C. Circuit opinions on the First Amendment were detailed and careful, and were written by a highly respected and ideologically mixed group of judges: Douglas Ginsburg, a Reagan appointee; Sri Srinivasan, an Obama appointee; and Neomi Rao, a Trump appointee. Srinivasan took a different approach on the First Amendment issue than did Ginsburg and Rao, but he reached the same result: All three voted to uphold the law.
It seems to me a good bet that most of the Supreme Court Justices will take a view similar to either Ginsburg's and Rao's or Srinivasan's. It's hard to identify up front any Justices who, as a matter of their general jurisprudence or of their particular First Amendment views, are likely to be quite different than all three of the D.C. Circuit judges. There are certainly highly plausible arguments against the law, as well as in favor. It just seems unlikely to me that those arguments will persuade five Justices when they persuaded neither Ginsburg nor Srinivasan nor Rao.
Tick, Tock Goes the SCOTUS Clock
The timing of TikTok v. Garland.
Today, the Supreme Court acted on pending applications in the challenges to the "Protecting Americans from Foreign Adversary Controlled Applications Act." The Court did not grant an injunction pending review. Instead, the Court construed the applications as petitions for writs of certiorari, and granted them. The Court set a blazing fast briefing schedule, with opening briefs due two days after Christmas, reply briefs to be filed two days after New Years, with oral argument one week later.
The parties are directed to file electronically simultaneous opening briefs, limited to 13,000 words, and a joint appendix on or before 5 p.m. (EST), Friday, December 27, 2024. Reply briefs, limited to 6,000 words, are to be filed electronically on or before 5 p.m. (EST), Friday, January 3, 2025. Any amicus curiae briefs are to be filed electronically on or before 5 p.m. (EST), Friday, December 27, 2024. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter.
The case is set for oral argument on Friday, January 10, 2025.
Happy Holidays everyone!
The timing here is extremely tight, with good reason. The law goes into effect on January 19, 2025. The President can only extend this deadline once, assuming that certain conditions are satisfied.
Again, the Court did not grant some sort of temporary injunction. In the past, Justices Barrett and Kagan have been critical of granting injunctions on the shadow docket. That the Court agreed to promptly hear oral argument, and placed it on the rocket docket, seems consistent with past precedents.
What happens after oral argument? I see a few different possibilities.
First, a majority of the Court promptly affirms the D.C. Circuit. I think this can be done fairly quickly. Judge Ginsburg's decision is extremely thorough, and there is no need to reinvent the wheel. It is also possible that one or more Justices finds persuasive Judge Srinivasan's concurrence. But a simple majority affirm could be done in a summary fashion. There may be dissents filed right away, or the dissents could be issued at a later date.
Second, a majority of the Court promptly reverses the D.C. Circuit. That sort of opinion would have to be more-fully developed, and explain why Judge Ginsburg erred. I think that sort of outcome, especially on a prompt timeline, is unlikely. Then again, that opinion may already be drafted. Bush v. Gore was written on a tighter timeline. And the Justices have had months to think about the case. (Justice Barrett's NetChoice concurrence presaged some of these issues.)
Third, the Court could grant a temporary injunction immediately after oral argument, to provide enough time to develop a written opinion. This opinion could ultimately affirm, but more likely would reverse. Again, an affirmance can be done quickly without making any broad pronouncements about First Amendment law. Any injunction may have one or more dissents, which would provide a preview of the final vote count.
Fourth, on January 11, the Court denies an injunction, but does not rule on the petition for a writ of certiorari. That outcome would create an unusual game of chicken with the White House. President Biden would then have about eight days to decide whether an extension should be granted. SCOTUS could then wait until January 18 to decide whether to release its opinion. (I am not certain what time the law goes into effect on January 19.) Remember, if TikTok comes into compliance with the law, there is no need for the Court to resolve this issue. And who knows what happens when Trump comes into office. He has spoken in support of TikTok. If somehow TikTok comes into compliance with the law, then Judge Ginsburg's opinion will be vacated under Munsingwear and we can all forget this ever happened.
Fifth, if January 18 comes, and there is no extension granted, the Court will have to do something. Or it could do nothing at all. Indeed, if the President and the Court fail to act by January 19, TikTok would suffer the same fate as Heinrich Quirin. Remember, by the time the Court decided Ex parte Quirin, the Nazi Saboteurs had already been executed.
Tick Tock, goes the clock.
S. Ct. Will Hear First Amendment Challenge to TikTok Divestment on Jan. 10
The question presented is:
Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.
The parties' briefs are due the same day, Dec. 27, as are friend-of-the-court briefs. Both parties appear to be entitled to file reply briefs by Jan. 3. Two hours are allotted for oral argument. For more on the D.C. Circuit panel majority opinion, see this post; for the concurring opinion's alternate path to reaching that result, see this post.
Trump v. Selzer Likely Going Nowhere
Monday's Complaint in this case essentially alleges that pollster Ann Selzer's Nov. 2 poll for the Des Moines Register, which showed Harris ahead in Iowa by 3 points, was deceptive to consumers and thus violated Iowa consumer fraud law:
62. President Trump, together with all Iowa and American voters, is a "consumer" within the meaning of the statute.
63. Defendants furnished "merchandise" to consumers within the broad meaning of the statute since they provided a service: physical newspapers, online newspapers, and other content that contained the Harris Poll.
64. Defendants engaged in "deception" because the Harris Poll was "likely to mislead a substantial number of consumers as to a material fact or facts," to wit: the actual position of the respective candidates in the Iowa Presidential race.
65. Defendants engaged in an "unfair act or practice" because the publication and release of the Harris Poll "cause[d] substantial, unavoidable injury to consumers that [was] not outweighed by any consumer or competitive benefits which the practice produced," to wit: consumers, including Plaintiff, were badly deceived and misled as to the actual position of the respective candidates in the Iowa Presidential race. Moreover, President Trump, the Trump 2024 Campaign, and other Republicans were forced to divert enormous campaign and financial resources to Iowa based on the deceptive Harris Poll. Consumers within Iowa who paid for subscriptions to the Des Moines Register or who otherwise purchased the publication were also badly deceived. Additionally, Iowans who contributed to the Trump 2024 Campaign were similarly deceived.
Today in Supreme Court History: December 18, 1944
12/18/1944: Korematsu v. U.S. decided.
No Pseudonymity for Attempt to Get President-Elect Trump Disqualified and to Allow Him to Be Privately Prosecuted
From Doe v. Chutkan, decided today by Chief Judge James Boasberg (D.D.C.):
In this pro se lawsuit, Plaintiff John Doe seeks, first, a court declaration that President- elect Trump is constitutionally ineligible to serve as President and the Supreme Court's recent decision holding otherwise is "void"; and, second, an order requiring Defendants Judge Tanya Chutkan and Attorney General Merrick Garland to preserve and provide Plaintiff grand-jury materials and other documents so that he and other private citizens may "prosecute" President-elect Trump.
Plaintiff moves here to proceed pseudonymously on the ground that bringing this lawsuit will "expose [him] to retribution." As Plaintiff has not made the detailed showing required to overcome the presumption in favor of disclosure, the Court will deny the Motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….
Generally, a complaint must identify the plaintiffs. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." As a result, the court must "'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure'" ….
The court concludes that the public interest in identifying the plaintiff is especially strong here:
"Out of My Peripheral I Felt as if Something Could Have Taken Place."
From State v. Barnes, a new decision from the Ohio Court of Appeals.
Here's some remarkable testimony from the suppression hearing in State v. Barnes, handed down yesterday by the Ohio Court of Appeals, in which an officer searched through a suspect's pockets and found drugs. The officer had already frisked the suspect for weapons and found nothing, but then searched him again on the suggested ground that another suspect might have just handed him something:
On cross-examination, Patrolman Risner admitted that the body camera footage contained no indication that any type of exchange occurred but stated that he "felt as if something could have taken place." (Emphasis added.) (Tr. 136). The following exchange then occurred:
[Defense Counsel:] At no time do we see from the body cam any type of exchange occur, do we?
[Patrolman Risner:] We don't see the exchange, no.
[Defense Counsel:] And you didn't either, did you?
[Patrolman Risner:] Out of my peripheral I felt as if something could have taken place.
[Defense Counsel:] But you didn't see anything, did you?
[Patrolman Risner:] No, I didn't see a handoff, no.
[Defense Counsel:] Now why on the body cam, then, did you tell Mr. Barnes that you saw him put that in his pocket?
[Patrolman Risner:] Because I believed that I did.
[Defense Counsel:] Okay. But you didn't, did you?
[Patrolman Risner:] No.
* * *
[Defense Counsel:] I mean, how do you believe you see something from what we just saw [on the body camera footage]?
[Patrolman Risner:] I can't explain to you how I felt at that moment. I was busy dealing with her [Williams]. Out of my peripheral, it looked like something could have been potentially handed off so I investigated further and I was right.
The very unimpressed Court of Appeals ruled that the search violated the Fourth Amendment and that the trial court properly suppressed the evidence.
UPDATE: Reading over the case again, and thinking more about it, I think the testimony above may have come off pretty differently in the opinion than at the suppression hearing. In the opinion, it reads as if the officer is trying to pull a fast one, like he's trying to defend the search based on his feelings. But the opinion later points out that there was another possible Fourth Amendment basis for the search that the officer was apparently relying on: The automobile exception, based on a positive drug detection dog alert before the search occurred.
Let me explain this a bit. If a dog alerts to drugs in a car, that entitles officers to search the car. The officer appears to have been thinking that this allowed the search through the former passenger's pockets, not that the officer safety rationale of stop-and-frisk law did so. The court points this out in passing to explain why there was no real officer safety rationale, but it's worth pointing out that this presumably explains the officer's testimony. Presumably he wasn't trying to justify the search based on his feelings, but rather was just being truthful about his thinking: He was seeing this as a drug case based on the dog alert, and he thought he could search a person from the car and was just explaining why he searched that person. If that view were correct, he would not need additional suspicion.
As it turns out, though, that belief about Fourth Amendment law is not correct. The automobile exception allows a search of property that a passenger carries out of the car when ordered to exit after probable cause has been established, lower courts have held. But the Supreme Court has held that the automobile exception does not extend to a passenger's pockets. See United States v. Di Re, 332 U.S. 581, 587 (1948). So it's possible that what happened here is that the officer was thinking of one exception to justify the search but the prosecution ended up trying to justify the search based on a different exception. The testimony seems odd because the government ended up arguing that the search was justified based on an exception that the officer was not trying to invoke. Or at least that seems like a distinct possibility.
Jurisprudence on the Adjournment Power, Old and New
Last month, Washington was in a tizzy about whether President Trump could use the adjournment power as a means to create a recess, and then make recess appointments for his cabinet member. That frenzy seems to have died down, but scholars continue to investigate the issue.
There are two primary legal questions to consider about the adjournment clause. First, can the President invoke the clause to adjourn any session of Congress, or only those extraordinary sessions that he may convene? Second, does the adjournment power empower the President to decide when to adjourn Congress, or does it merely empower him to decide the duration of an adjournment?
I'd like to flag two recent entries in the debate. First, Alan Erbsen wrote a draft article titled "Constitutional Limits on the President's Authority to Adjourn Congress." Second, Jason Willick and Phillip Huff publishded a detailed column in the Washington Post, titled How a long-ago fight over a dormant constitutional weapon echoes today.
Erbsen contends that the adjournment power is limited to extraordinary sessions:
First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them.
To his credit, Erbsen cites Section 1557 of Justice Story's Commentaries, which suggests the power is not so limited:
§ 1557. The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.
Erbsen also contends that the President can only determine the date that Congress can adjourn till, and even then, Congress can choose to reconvene on its own power:
Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate's inherent authority to reconvene on an earlier date.
Mike Stern made a similar point on the Lawfare Podcast (starting at 26:21). Stern argues that this power is only triggered when the House and Senate both wish to adjourn, but they do not agree how long that adjournment should be. And, the President can mediate that disagreement to decide how long the adjournment should be. He argues the power is not triggered when the House wants to adjourn but the Senate does not want to adjourn.
Erbsen also cites a contrary source, which I am embarrassed that I had forgotten about: Justice John Marshall Harlan's lecture notes, which I transcribed with Brian Frye and Michael McCloskey. Harlan seems to be saying the President has the broader power to adjourn Congress, and not just to set the date on which the adjournment ends.
"The Senate wants to adjourn to one period. The House says, 'No, we won't agree to that. We propose to adjourn to another day.' Well, the Senate won't agree to that. And here is a hung jury, to use a popular phrase. And the time of the country, and the money of the country, is not to be wasted in fruitless endeavor of these two Houses to agree as to the time to which they shall adjourn. Now, in that state of case the President may interfere and say, 'I adjourn you both to a certain day in the future.' That is lawful."
Harlan and Story did not seem to limit the power to extraordinary sessions.
Alan has a rich and detailed history of these provisions, which I would commend to your attention.
Now, let's turn to Willick and Huff's article in the Post. They reveal that debates over these two questions are not new. Indeed, both of these issues were debated in 1834--one year after Story's Commentaries were published. At the time, President Andrew Jackson considered whether to adjourn the Senate to prevent the re-authorization of the Second Bank of the United States. Willick and Huff describe this episode as "largely forgotten." They're right. I hadn't heard about it before, and I don't recall it being mentioned in last month's recess kerfuffle. The authors cite a wealth of primary sources.
First, was the adjournment power limited to extraordinary sessions? The Globe, a pro-Jackson newspaper, argued that the adjournment power was not limited to extraordinary sessions:
Missouri Legislative Employee Was Unconstitutionally Fired for Pro-Mask-Policy Letter
From Mayfield v. Missouri House of Representatives, decided Friday by Eighth Circuit Judge Jane Kelly, joined by Judges Lavenski Smith and Jonathan Kobes:
On August 3, 2020, while employed in the assistant clerk's office of the Missouri House of Representatives …, Mayfield sent an email to Elijah Haahr, the Speaker of the House, and Dave Schatz, the President Pro Tem of the Missouri Senate, titled "Capitol Safety." It read:
I am writing to you because I feel an ethical and moral obligation to do so. We are living in unprecedented times that requires, likewise, unprecedented actions and decisions from the leadership and citizens of our state. Those actions and decisions, or lack thereof, will be recorded in history as either appropriate measures that helped save lives, or inappropriate and resulted in an increase in lives lost.
Businesses, cities, and states across this great nation have heeded the CDC's warnings and implemented a number of measures designed to slow/stop the spread of COVID-19, including mandatory face coverings, if we are to continue in our efforts to reopen the economy and get people back to work. I am grateful the Missouri House of Representatives has implemented some of the same measures in an attempt to protect Members, staff, and visitors to our Capitol. Unfortunately, as of yet, the decision to require face coverings in the chambers and public spaces in our Capitol has not been made, leaving all who enter our Capitol at greater risk of contracting COVID-19, and ultimately, negates any benefit received by the measures that have been implemented.
Judge Rejects Meta's Attempt to Seal Various Information About Moderating Practices
"The manner in which Meta moderates content from an adult platform competing with OnlyFans versus content that originates from OnlyFans is directly at issue. Therefore, Meta's general policies which articulate the extent to which sexual content is permitted on any of Meta's social media platforms are also relevant."
From Judge William Alsup's opinion Thursday in Dangaard v. Instagram, LLC (N.D. Cal. 2024):
The public enjoys the right to know to whom the public courts provide relief (or not). Filings "more than tangentially related to the merits of a case" may be sealed only for "compelling reasons." That "standard applies to most judicial records," with a "good cause" standard applying otherwise….
This order now addresses materials contained within Meta's motion for summary judgment that Meta wishes to keep sealed…. First, Meta states that citing to its internal policies of how it moderates content and statistics reflecting how Meta blocks certain content would allow "malicious actors to take advantage of this specialized internal information to circumvent or otherwise render ineffective" Meta's moderation processes…. Second, that Meta's content moderation policies could cause competitive harm if disclosed because competitors could copy Meta's techniques to better operate their online services. Third, that some of the information contains personal identifying information and other material implicating the privacy interests of third parties.
As a preliminary issue, Meta seeks to seal portions of the motion for summary judgment itself. Given that the motion is dispositive, Meta must articulate a compelling reason to justify sealing swaths of a dispositive motion. This order finds that Meta has not met its burden. Though Meta seeks to seal specific sentences and headers, all of the proposed redactions speak to the merits of the action for which the public should have access.
After Plaintiff "Criticized the City Manager …, the Manager Complained About Him to the Police."
"Two officers convinced a prosecutor to charge Blackwell with stalking. But a judge acquitted him. Blackwell then sued the manager and officers for violating the First Amendment by inducing this prosecution in retaliation for his political speech."
From yesterday's decision in Blackwell v. Nocerini, written by Sixth Circuit Judge Eric Murphy and joined by Chief Judge Jeffrey Sutton and Judge John Bush:
After Mark Blackwell criticized the city manager of a small Michigan city, the manager complained about him to the police. Two officers convinced a prosecutor to charge Blackwell with stalking. But a judge acquitted him.
Blackwell then sued the manager and officers for violating the First Amendment by inducing this prosecution in retaliation for his political speech. The district court held that his complaint alleged enough facts to rebut the city officials' qualified-immunity defense at the pleading stage. The officials now appeal. We agree that Blackwell plausibly pleaded that the officials sought to prosecute him in retaliation for his speech and without probable cause that he had committed a crime….
Because this case reaches us at the pleading stage, we must accept the allegations in Blackwell's complaint as true. We summarize the facts relying solely on those allegations, keeping in mind that the evidence developed in discovery may refute them down the road.
In 2018, many people complained about the "divisive and hostile" work environment for public employees in the City of Wayne, Michigan. Because the poor environment had led to low morale and high turnover, the City hired a human-resources expert to investigate the complaints. This expert allegedly confirmed much of the concerns. His findings pointed the fault at Wayne's City Manager: Lisa Nocerini. She allegedly showed favoritism toward some employees and a lack of respect toward others.
Blackwell, a Wayne resident, obtained the expert's report. He began to call for Nocerini's termination during the public-comment period of City Council meetings. Unhappy with this criticism, Nocerini allegedly tried to convince Wayne's then-existing police chief to charge Blackwell with a crime. This police chief refused.
Today in Supreme Court History: December 17, 1910
12/17/1910: Justice Joseph Rucker Lamar nominated to the Supreme Court.
What Is The Remedy For Judge Wynn's "Brazenly Partisan" Withdrawal of Senior Status?
Should he be forced to recuse from any case involving the Trump Administration?
The Article III project filed a judicial misconduct complaint against Judge Wynn of the Fourth Circuit. Yesterday, I wrote about Wynn's "brazenly partisan" withdrawal of his intent to take senior status because Trump prevailed. But the facts are even worse than I knew. The complaint recites:
In January 2024, Judge Wynn announced his intention to assume senior status upon the confirmation of his successor.1 In March 2024, he attended a "retirement celebration" held in his honor, where prepared remarks from President Obama, who had nominated Judge Wynn, were read to the crowd.
Is it common for the President who appointed a judge to provide remarks when the judge retires? When Judge Kim Gibson, for whom I clerked, took senior status, there was a statement read from Circuit Justice Alito (who attended the same High School as Judge Gibson). I thought that was quite appropriate. But from the former President? From nomination to retirement, Judge Wynn was an Obama judge.
As we know now, he did not retire. The complaint states the obvious:
Given the timing of his announcement, the fact that he celebrated his retirement nine months earlier, and the lack of any other provided explanation combine to make clear that Judge Wynn's decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election. Indeed, the media is already reporting that Judge Wynn apparently changed his mind as a result of the election.5 Even worse, the timing of Park's needless withdrawal followed immediately by Judge Wynn's letter gives the appearance that there was coordination between Park, Judge Wynn, and the White House to give the misimpression that Park's pointless withdrawal—and not the 2024 election results—was what prompted Judge Wynn to change his mind.
Certainly the judiciary has the power to determine what communications arose between Wynn, the Senate, and the White house. If Judge Newman can be forced to sit for a medical exam, Judge Wynn can turn over his email and call logs.
Let's assume the facts are as stated. What is the remedy? I suppose Judge Wynn could be forced to actually take senior status, to avoid any appearance of impropriety. Or maybe he could be forced to recuse from any case involving the Trump-administration. After Justice Ginsburg called President Trump a "faker" and worse, she apologized, but declined to recuse. But as we are often reminded, the lower courts are subject to an enforceable ethics code.
Professor Rob Leider suggested that Trump should go ahead an nominate somone, and let the Senate confirm them:
This is a major separation of powers problem, and it's likely unconstitutional. Presidents choose judges. Judges don't nominate their successors.
President Trump should nominate someone for his seat, and the Senate should confirm. https://t.co/xuw9P9Dgm8
— Robert Leider (@LeiderRob) December 15, 2024
Another colleague wrote that Congress should pass an appropriations riders saying notwithstanding any other statutory provision, no funds may be spent on staff or chambers of judges who withdraw their senior status request. Going forward, bilateral judicial reform can solve this problem.
Of course, lurking in the background is Judge Stranch of the Sixth Circuit. Were she to withdraw her request for senior status, especially after what happened with Judge Wynn, the appearance of playing politics will be just that much worse.
How To Think About Justice Jackson "& Juliet"
The role that was created for her, and for no one else, has a value that cannot be stated on a disclosure form.
Being a Supreme Court Justice is a cushy gig. In addition to having immense power, you gain access to opportunities that would have been unthinkable for an inferior court judge. This weekend, Justice Jackson acted out a role in the Broadway Musical & Juliet. To be precise, a speaking role was specifically written for her. Jackson had this to say:
"I think that it means that anything is possible. Five years ago, I was a district court justice; nobody knew who I was. To have both of the pieces of my fondest dreams come true in this little bit of time has been extraordinary for me."
"I'm overwhelmed with the joy of this experience. I'm so grateful to the staff and crew of '& Juliet' for helping my dream come true. It was phenomenal."
On one level, I'm happy for Justice Jackson. It is always rewarding for people to have their dreams come true. If you sense a but is coming, you're right. But I am somewhat uneasy about this unique opportunity.
To be sure, Justices have been invited for distinct honors. Several Justices have thrown out first pitches at baseball games, including Justices Stevens, Alito, and Sotomayor. Justices Scalia and Ginsburg had non-speaking roles in an opera. Justice O'Connor served as the grand marshal of the Rose Bowl parade. The Justices also routinely preside over classical moot courts, that often involve works of Shakespeare. They give commencement addresses. I'm sure there are other examples you can think of. But in each case, the Justices were offered an honorific that was available for other distinguished individuals. None of these roles were one-offs, created just for the Justice.
By contrast, in Justice Jackson's case, the show created a special role just for her, and wrote lines just for her. This was an experience that was not available to anyone else. And I've seen no suggestion that the producers of & Juliet had some sort of pre-existing friendship with Justice Jackson. It is true that Jackson was performing some work, but the show was clearly giving the Junior Justice something of value--indeed something that has no price tag. And this isn't the first time Justice Jackson has received priceless gifts. While concert tickets from Beyonce have a face value, receiving them directly from the artist, and being able to fraternize with celebrities in the Knowles suite, was priceless. And while the clothes provided from Vogue magazine have a price tag, being photographed by Annie Leibovitz is a once-in-a-lifetime experience.
Justice Jackson will surely be able to disclose these gifts, but whatever dollar amount she lists will not even come close to signifying the true value. How do you quantify a "dream come true"? And why are these strangers to Justice Jackson feting her with these gifts? Because she will rule on cases the right way. Make no mistake about that. Justice Jackson is celebrated as a cultural icon. And Justice Thomas barely gets a mention at the Smithsonian African-American Museum. If Justice Jackson pulled a reverse-Souter tomorrow, and became an arch-conservative, these opportunities would dry up quickly.
Speaking of Justice Thomas, by now, some detractors are screaming, What about Harlan Crow? Sure, let's play that game. Justice Thomas accepted certain travel from his actual friends, and did so when those trips were permitted by the rules. Those rules have since changed, and Thomas will now abide by those rules. Pro Publica and other outlets spent untold resources to track every destination Justice Thomas visited. And the Justice's good name has been dragged through the mud. What about Justice Jackson? She gets a standing ovation and yet another puff piece on CBS News. And silence from the so-called "watch dogs."
WHAT? Supreme Court Justice Kentanji Brown Jackson heads to Broadway to star in a queer 'Romeo and Juliet' play.pic.twitter.com/bNqG0fuBKF
— Eric Daugherty (@EricLDaugh) December 16, 2024
One final note. During Justice Jackson's confirmation hearing, Senator Blackburn asked her to define the word "woman." Justice Jackson feigned confusion, and said she was not a biologist. We all knew the point of the question, and Jackson had no interest in engaging in it. Two years later, Justice Jackson showed some expertise about gender identity issues during oral argument in Skrmetti. Go figure!
For those who haven't seen & Juliet, the show created a dustup. The New York Times reported in 2023:
A principal performer in the new Broadway musical "& Juliet" has withdrawn from consideration for the Tony Awards rather than compete in a gendered category, shining a renewed spotlight on the question of whether major awards should continue to have separate categories for men and women.
The performer, Justin David Sullivan, is trans nonbinary and uses the pronouns he, she and they. In the pop-song-fueled musical, which imagines an alternative to "Romeo and Juliet" in which Juliet does not die, Sullivan plays May, one of Juliet's best friends. May — an adolescent, like Juliet — is still figuring things out.
Does Justice Jackson's participation in & Juliet, of all plays, cast any doubt on her participation in Skrmetti? Readers may recall that before Obergefell was decided, Justice Ginsburg officiated over John Roberts's same-sex marriage. (Yes, that was actually one of the groom's names.) Did anyone think that Justice Ginsburg's vote in Obergefell was not pre-ordained?
Justice Jackson should be grateful the Supreme Court lacks an enforceable ethics code.
Monday Open Thread
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