The Volokh Conspiracy Archive

So held Judge Dale Drozd (E.D. Cal.) in Castro v. Clovis Unified School Dist., decided Friday:

Plaintiff is a former Clovis High School student who graduated in 2019. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019. On that same day, plaintiff posted to his personal Twitter page a picture of another classmate with the caption "nigger." Plaintiff posted the tweet while on the school's campus and during school hours. The classmate featured in the picture plaintiff posted is African American.

Another student saw the tweet and contacted defendant Stephanie Hanks—the site principal of Clovis High School—to inform her of the tweet and how it had upset the reporting student. Plaintiff and his parents were called into defendant Hanks' office, and plaintiff was provided with his high school graduation diploma and informed that he would not be permitted to walk at his graduation ceremony as a result of his May 30, 2019 online behavior.

{In his [Complaint], plaintiff alleges that defendants "censored and punished him for exercising his First Amendment right" to communicate with his "personal Nigerian-American friend who consented to Plaintiff's intercultural communication." Plaintiff appears to have alleged in his complaint that the student depicted in his tweet was a friend of his and that his comments should therefore not have been construed as inappropriate. However, plaintiff has presented no evidence on summary judgement supporting this assertion. Moreover, plaintiff's subjective state of mind is irrelevant. Under the framework set out by the Supreme Court in Tinker, the inquiry is simply whether the speech at issue interfered with the rights of other students to be secure and left alone.} …

Under the holding in Tinker v. Des Moines Indep. School. Dist (1969), schools are permitted to restrict student speech in two broad sets of circumstances: if the speech "might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities," or, alternatively, if the speech "collides 'with the rights of other students to be secure and to be let alone.'" "[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is … not immunized by the constitutional guarantee of freedom of speech."

From Bloomberg Law (see also Casino.org (Devin O'Connor)):

Former Wynn Resorts Ltd. CEO Steve Wynn agreed to dismiss his lawsuit accusing attorney Lisa Bloom and her law firm of defaming him in a press release that said Wynn ordered female show performers to present themselves in a more sexually appealing way ….

"Per the terms of the settlement, Ms. Bloom will be issuing a public statement within 5 days of the dismissal of the action, which will acknowledge a retraction of the defamatory statement," Todd L. Bice of Pisanelli Bice PLLC, who represents Wynn, told Bloomberg Law on Friday. "The financial terms of the payment to Mr. Wynn are confidential."

For more on the underlying allegations, see the Ninth Circuit's decision last year Wynn v. Bloom, which allowed the libel lawsuit to go forward:

So the Eleventh Circuit held today in U.S. v. Jimenez-Shilon, in an opinion by Judge Kevin Newsom, joined by Judges Elizabeth Branch and Andrew Brasher; the opinion focused on Framing-era history, and concludes,

[Under eighteenth-century law,] aliens could not surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry. Nor can they do so today.

Other courts have likewise upheld the federal ban that was upheld in this opinion, but generally without such detailed historical analysis.

Judge Newsom also adds a separate concurrence, in which he questions the use of strict scrutiny, intermediate scrutiny, and similar tests both as to the Second Amendment and as to other constitutional rights, such as the First Amendment. Allowing constitutional rights to be overcome by compelling or substantial government interests, he argues, "elevates the normative views of 'we the judges' over 'We the People' through an ill-defined balancing test." And, turning to the First Amendment, he adds:

It's not just that the [First Amendment strict scrutiny / intermediate scrutiny] doctrine is exhausting—although it certainly is that. It's that the doctrine is judge-empowering and, I fear, freedom-diluting. If we, as judges, conclude—as I've said we should—that Second Amendment rights shouldn't be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?

Of course, this is just a quick summary of the results the opinion and the concurrence reaches; for more, see here.

I'm still going through the decision, in Netchoice v. Attorney General, but I thought I'd note the result:

The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably "private actors" with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren't, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by "the 'big tech' oligarchs in Silicon Valley" to "silenc[e]" "conservative" speech in favor of a "radical leftist" agenda. To that end, the new law would, among other things, prohibit certain social-media companies from "deplatforming" political candidates under any circumstances, prioritizing or deprioritizing any post or message "by or about" a candidate, and, more broadly, removing anything posted by a "journalistic enterprise" based on its content.

We hold that it is substantially likely that social-media companies—even the biggest ones—are "private actors" whose rights the First Amendment protects, that their so-called "content-moderation" decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms' ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law's particularly onerous disclosure provisions—which would require covered platforms to provide a "thorough rationale" for each and every content-moderation decision they make—violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it unlikely that the law's remaining (and far less burdensome) disclosure provisions violate the First Amendment, we hold that the companies are not entitled to preliminary injunctive relief with respect to them….

I hope to have more to say soon.

Former Associate Justice Anthony Kennedy condemned the leak of a draft opinion in Dobbs v. Jackson Women's Health Organization that would over turn Roe v. Wade as "cowardly, corrupt, contemptuous act." Justice Kennedy's remarks were made at the Pennsylvania Supreme Court's 300th Anniversary Symposium and were reported by Bloomberg News.

From the report:

The leak from the usually secretive institution "hurt" the court because the justices must be able to debate candidly in coming to their conclusions, said Kennedy, who retired in 2018 after 30 years on the court.

The justices are "so proud that our independence consists of the tradition of talking just among ourselves to have reasons why we decide the case," he said.

Kennedy urged judges across the nation to recommit to "rational, thoughtful discourse."

"The law learns from bad acts," Kennedy said.

Video of the remarks is available here.

From Judge Kari Dooley's decision earlier this month in Ligeri v. Tischer (D. Conn.) (a lawsuit over sales of "moleskin, nutritional supplements, sporting goods, housewares, and the popular 'Green Sky' brand rubber ducks"):

Plaintiffs Benjamin Ligeri and Central Concepts Inc. … have moved for a temporary restraining order … and therein seek a mandatory injunction requiring Defendants, Joshua Tischer, Optimistic Investments, Inc. and Michael Murphy to retract certain complaints they have allegedly made to Amazon and to cease and desist the filing of other complaints….

By verified complaint, Plaintiffs assert that the Defendants have and continue to tortiously interfere with their business expectancies, specifically their ability to sell products using their Legacy Account on the Amazon sales platform. The Defendants are alleged to have filed false and frivolous claims with Amazon that Plaintiffs' products either: infringe a copyright; infringe a trademark; or are counterfeit, all of which would violate the Amazon platform policies. As a result, Amazon has removed some of Plaintiffs' products from the website resulting in lost sales. Plaintiffs allege that this conduct can result in the diminished value of the Legacy Account and might ultimately destroy Plaintiff's ability to do business on the Amazon platform entirely. Finally, Plaintiffs assert that the loss of a Legacy Account cannot be addressed through damages given the various advantages afforded such accounts which once lost, are lost forever.

On the papers submitted, the Court cannot conclude that the Plaintiffs have shown a "clear and substantial" likelihood of success on the merits of their claim. In order to find that the Defendants' conduct was tortious, the Court would be required to find that the complaints were false or frivolous. In order to determine that the complaints were false or frivolous, the Court would need to assess whether the Plaintiffs' products infringed a copyright, were counterfeit, or infringed a trademark, which in turn requires detailed and sometimes nuanced analysis under very complex bodies of law. The Plaintiffs ask this Court to summarily decide that no such infringement has occurred by looking at internet screenshots of the products at issue. This the Court cannot do. Although there is evidence from which to infer that the defendants are selectively targeting the Plaintiffs, e.g., allegations that the Defendants are not challenging other sellers of similar products, this does not establish one way or the other whether the complaints themselves are frivolous or false.

5/23/1991: Rust v. Sullivan is decided.

A comment on the Rumsfeld v. FAIR thread reminded me that there's some confusion about this question, especially in light of last year's Cedar Point Nursery v. Hassid decision. Cedar Point held that a regulation providing that "[a]gricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year" "constitutes a per se physical taking" of private property and thus requires the government to pay "just compensation" to the property owners. What is the scope of that (and might it be relevant to requirements that social media platforms allow users or user posts that they don't want)?

The general rule, to oversimplify a bit, is that

it's a taking (which triggers a duty to compensate) when the government "grant[s] a right to invade property closed to the public," but
it's not a taking when the government provides greater access rights for property that is already "generally open to the public."

The key precedent on this second point is PruneYard Shopping Center v. Robins (1980), which upheld a California rule requiring shopping center owners to let leafleters and signature gatherers onto their publicly accessible property. Cedar Point distinguished PruneYard:

Unlike the growers' properties, the PruneYard was open to the public, welcoming some 25,000 patrons a day. Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public. See Horne v. Dep't of Agriculture (2013) (distinguishing PruneYard as involving "an already publicly accessible" business); Nollan v. Cal. Coastal Comm'n (1987) (same).

In Rumsfeld v. FAIR (2006), the Court unanimously held that universities could be required to host military recruiters, even when the universities generally refused to host recruiters who discriminated based on (among other things) sexual orientation, and the military was indeed so discriminating. The Court also held that universities could even be required to include information about the military recruiters on the same terms as about other recruiters in the universities' own speech (e.g., e-mails or notices about recruiting events). To be sure, one could criticize the decision; consider, for instance, our own Dale Carpenter's article about it, Unanimously Wrong. But it's a precedent.

Of course, that still leaves the question of the scope of the precedent, and the extent to which it might bear on other debates (such as whether social media platforms may be required to be viewpoint-neutral in their decisions about which content to host). There is a lot to debate about that; but here I just wanted to note two points that strike me as particularly clear:

[1.] Rumsfeld upheld the Solomon Amendment, which imposed its obligations as a condition on government spending. Many people therefore assume that the precedent is limited to such conditions.

But it's not, because the Court expressly held that the law would be constitutional even if imposed as a direct mandate, not as a spending condition—"the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement." The Court noted that the "unconstitutional conditions" caselaw was complicated:

5/22/1807: Aaron Burr is indicted on charges of treason. Chief Justice John Marshall would preside over Burr's trial.

So reports Fox News (Kyle Morris); it's of course possible that there's some error in the reporting, but the screenshot (borrowed from a New York Post reprint of the Fox News account) seems to corroborate it:

Naturally, such blocking doesn't violate the First Amendment (which governs only governmental speech restrictions) or any federal law; and, to my knowledge, it wouldn't violate any state social media nondiscrimination rules, even apart from the question whether those rules are constitutional or preempted by 47 U.S.C. § 230: The Florida and Texas laws, for instance, seem to me to cover only material posted by residents of those states.

Nonetheless, I don't think it's good for democracy that platforms with the reach and importance of Facebook (which the Supreme Court has characterized as "the modern public square") would purport to thus restrict the expression of opinions.

And that's especially so given how mainstream the opinion is: A Gallup poll from May 2021, for instance, reports that 62% of U.S. adult respondents took the view that "transgender athletes should only be allowed to play on sports teams that match their birth gender" (34% took the view that they "should be able to play on sports teams that match their current gender identity"). I realize that these measurements are always imprecise, and sensitive to the details of the question. But it seems pretty clear that this isn't some marginal, "extremist" view.

Of course, there's much to be said for the position that even views held by a small minority still need to be expressible in such places—including privately owned places that are so central to modern speech—for public debate to properly function. But at least if Facebook blocks the Nazis or the Communists, the immediate practical effect will be limited, because those views aren't major players in American public debate in any event. (Thankfully, "should we bring back the Holocaust?" or "should we have a violent Communist revolution?" aren't major topics in current American debate.)

Here, though, no-one can claim that somehow the judgment of history has been rendered and that nothing would be practically lost to public debate if a few extremists can't express their views. Nor can one argue that this is just a matter of medical consensus or of factual disinformation (though again I'd be skeptical of even those bases for restriction).

Rather, Facebook appears to be trying to suppress an important normative position on a live political issue—a view expressed by major elected politicians about what policies our democratic process should adopt. Again, not good for Facebook to try control public debate this way, it seems to me.

Here's a curious case described in the Washington Post in 1980, one that didn't make it into my forthcoming book on racial classifications:

Miguel Sandoval arrived in Harlem in 1959 from Havana, where he'd been an outspoken advocate of better civil rights for black Cubans. Sandoval was Cuban, but he thought of himself primarily as a black. Yet to the American blacks in Harlem, he was a Hispanic.

Nine years later, he applied for a job as director of the manpower office where he worked because he had heard that federal officials were looking for a black to fill the post. But, Sandoval said, he was told he could not have the job because he was Hispanic.

Sandoval convinced the federal Equal Employment Opportunity Commission that he was indeed black and had been discriminated against, and won back pay.

The Post uses this case to explore Afro-Latino identity, but one wonders why the EEOC failed to point out that it's illegal to reserve a position for one racial group to begin with.

Meanwhile, in the ensuing decades, the federal government has made it clear that "Hispanic" is an ethnic, not a racial classification, so that Hispanics can be of any race. In practice, however, many Americans (including Supreme Court justices) treat Hispanic as a racial category.

Yesterday, a federal district court judge dismissed MyPillow CEO Mike Lindell's counterclaims against election machine manufacturers U.S. Dominion and Smartmatic. The counterclaims were filed in the companies' defamation suit against Lindell, who had accused the firms of stealing the 2020 election with rigged election machines. In addition, Judge Nichols imposed sanctions on Lindell, given the "groundless" and "frivolous" nature of his claims. Last fall, Judge Nichols had also denied Lindell's attempt to dismiss the defamation claims.

After he was sued for defamation, Lindell filed a series of counterclaims against Dominion and Smartmatic, including abuse of process, RICO, and violations of the First Amendment, the Fourteenth Amendment's Equal Protection Clause, and the "Support or Advocacy Clause of 42 U.S.C. § 1985(3), among others. In his opinion , Judge Nichols walks through each claim, explaining why each lacks merit, before dismissing them.

Judge Nichols also explained his reasons for granting Smartmatic's motion for sanctions, in part.

Smartmatic moves to sanction Lindell and his previous counsel under Federal Rule of Civil Procedure 11 for filing a "frivolous case." . . . In particular, Smartmatic argues that Lindell and his counsel should be sanctioned for: (1) "predicat[ing] [Lindell's] claims on allegations that have been disproven by credible, publicly available sources and rejected by other federal district courts," (2) for filing "claims [that] lack a plausible basis in the law," and (3) for "fil[ing] suit to undermine confidence in the 2020 U.S. election." . . . Smartmatic further contends that "Lindell and his counsel must be held jointly and severally liable for the fees Smartmatic has expended defending itself and preparing the instant motion." . . .

The Court will grant Smartmatic's motion in part. The Court agrees with Smartmatic that Lindell has asserted at least some groundless claims. . . . In particular, the Court concludes that at the very least Lindell's claim against Smartmatic under the Support or Advocacy Clause falls on the frivolous side of the line (other claims do too). As a result, the Court orders Lindell and his previous counsel to pay some of the fees and costs Smartmatic has incurred defending itself and moving for sanctions under Rule 11. See Reynolds v. U.S. Capitol Police Bd., 357 F. Supp. 2d 19, 23 (D.D.C. 2004) ("The test under Rule 11 is an objective one: that is, whether a reasonable inquiry would have revealed there was no basis in law or fact for the asserted claim."); . . . But the Court requires additional briefing on the amount of appropriate costs under the circumstances.

In response to the ruling, Lindell told Bloomberg News he will consider an appeal:

Lindell said in a phone call that he'll decide later whether to appeal because he is busy challenging the continued use of Dominion and Smartmatic voting machines across the US.

"Whatever the judge thinks, that's his opinion," Lindell said. "I've got lawyers doing more important things like removing these machines from every state."

For those who care about such things, Judge Nichols clerked for Justice Clarence Thomas on the Supreme Court and was appointed to the federal bench by Donald Trump in 2019.

5/21/2007: Bell Atlantic Corp. v. Twombly decided.

From yesterday's opinion in Ohio Stands Up! v. U.S. Dep't of Health & Hum. Servs., decided today by the Sixth Circuit (Judge Alice Batchelder, joined by Judges Eric Clay and Joan Larsen):

Kristen Beckman and Douglas Frank … alleged that … defendants knowingly and intentionally published misleading and fraudulent data that overstated the number of nationwide COVID-19 cases and deaths, in violation of the Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3521, the Information Quality Act, 44 U.S.C. § 3516 (Policy and Procedural Guidelines), the Administrative Procedure Act, 5 U.S.C. §§ 500-706, and the "Implied Constitutional Duty of Honesty and Fair Dealing."

[To show standing to sue in federal court,] "… a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." "For an injury to be 'particularized,' it must affect the plaintiff in a personal and individual way." A plaintiff who is "seeking relief that no more directly and tangibly benefits him than it does the public at large … does not state an Article III case or controversy." "[A] grievance that amounts to nothing more than an abstract and generalized harm to a citizen's interest in the proper application of the law does not count as an 'injury in fact.' And it consequently does not show standing."

Here, Beckman and Frank start their claim with the accusation that the defendants knowingly published misleading and fraudulent data that overstated the number of COVID-19 cases and deaths. Beckman and Frank do not assert that the defendants published any data about either of them specifically or provided any data to them personally. Nor do they assert that they relied on the data to their personal detriment. In short, Beckman and Frank have not asserted that the defendants' conduct has affected them "more directly and tangibly … than it does the public at large." This "abstract and generalized harm" is not an "injury in fact" and does not establish standing.

From Griffin v. Stowe, decided yesterday by the California Court of Appeal (Presiding Justice Manuel Ramirez, joined by Justices Marsha Slough and Richard Fields):

Daelani Griffin filed a petition for a harassment restraining order against … Julian Noel [Stowe]. {Despite her traditionally male name, Stowe is female.} She claimed Stowe made threatening and insulting social media posts about her and induced others to do so. The trial court denied the petition. It commented, among other things, "This stuff … doesn't even come close to the kind of harassment that's required for a civil restraining order. You guys … have a spat on Facebook…. Just block them and move on…." …

According to Griffin's sworn petition, Stowe lived in the State of Washington. They met in second grade but had not seen each other for 13 years.

According to Griffin, Stowe used her name and likeness in "online rants that [we]re false." Stowe sent her harassing messages and had "other ladies whom I do not know" send her harassing messages. Stowe had sent her a video saying that Griffin had "a mental illness." Stowe had described Griffin as "a sugar baby, a prostitute, and a cheap hooker." Stowe had threatened to have Griffin deported and to "find [her] in California and beat the shit out of [her]."

Griffin would block Stowe, but Stowe would just open new accounts….

From White Coat Waste Project v. Greater Richmond Transit Co., decided today (quite correctly, I think) by the Fourth Circuit (Judge Julius Richardson, joined by Chief Judge Roger Gregory and Judge Paul Niemeyer):

When White Coat Waste Project tried to run an advertisement denouncing animal experimentation with the Greater Richmond Transit Company, the ad was denied for being impermissibly "political." So White Coat sued, challenging that denial as a violation of its First Amendment rights. Richmond Transit responds that, as a private company, it is not bound by the First Amendment, and even if it were, its policy passes constitutional muster because it only restrains speech in a nonpublic forum….

The court concluded that Richmond Transit is a government actor; though it's formally organized as a corporation, it's a "[g]overnment-created and -controlled corporation[]" (such as, for instance, Amtrak), created by the government for a government function and run by the government: "The City of Richmond appoints half of Richmond Transit's board, with Chesterfield County appointing the other half."

The court then concluded that the ad space on Richmond Transit buses wasn't a place for the government's own speech, but rather a "nonpublic forum," so the government can constrain speech there but only through restrictions that are viewpoint-neutral and reasonable. (I should note that other courts might have said it was a "limited public forum," but in any event the rule for the two is generally the same.) And it concluded that this restriction was not reasonable:

Reasonableness demands more than a rational basis for the rule: "[I]t isn't enough simply to establish that the regulation is rationally related to a legitimate governmental objective, as might be the case for a typical exercise of the government's police power." But, on the other hand, the government need not satisfy strict scrutiny: there is no "requirement that the restriction be narrowly tailored or that the Government's interest be compelling." So reasonableness is akin to some form of so-called intermediate scrutiny, in which the government's means and ends must both be "reasonable."

White Coat does not appear to challenge Richmond Transit's ends, accepting there is a legitimate interest in avoiding some class of politically charged advertisements. Nor could they. In Lehman v. City of Shaker Heights (1974), the Supreme Court [upheld] … a city-owned public transit system['s prohibition on] "political advertising" on its vehicles….

But even a reasonable end must not be pursued by unreasonable means. In Minnesota Voters Alliance v. Mansky (2018), the Supreme Court recently held that to be reasonable, nonpublic-forum speech restrictions must be "capable of reasoned application." The Minnesota statute in Mansky prohibited political apparel in polling places. The prohibition covered not only apparel identifying a candidate in the election, but any apparel bearing a "political" insignia. Minnesota had advanced various interpretations of the restriction, but eventually settled on a definition that included "words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in the polling place" or symbols "promoting a group with recognizable political views about the issues confronting voters in a given election."

The Court held that restriction was incapable of reasoned application. Without requiring narrow tailoring, the Court held "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out." This does not require eliminating all discretion but merely that any discretion "must be guided by objective, workable standards." The Court reiterated its holding in Lehman that not all political speech bans in nonpublic forums would be problematic—i.e., it remains a reasonable end. But the means Minnesota used did not pass muster: "[I]f a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach …."

Just as in Mansky, Richmond Transit seeks to ban all "political" ads. And just as in Mansky, Richmond Transit has no formal definition of "political," and no written guidelines clarifying how the standard is to be applied. As the Supreme Court noted, "the word can be expansive," covering anything "of or relating to government, a government, or the conduct of governmental affairs" or "[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state." Faced with this broad, undefined standard and the directive to keep Richmond Transit's buses from becoming a forum to discuss "public issues" (whatever that might mean), employees have done their best to flesh out a reasonable test. But those attempts have fallen short.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

In 2020, police in the city of Brookside, Ala., made more misdemeanor arrests than the number of residents. Over two years, revenue from fines and forfeitures increased more than 640 percent. But it's not the result of a sudden crime spree; it's taxation by citation. And now, it's IJ's latest class action. IJ Senior Attorney Bill Maurer has more in today's Washington Post.

Readers may recall the controversy over the Department of Commerce's "contrived" campaign to add a citizenship question to the census. Are documents concerning census-related-backchanneling between Commerce and the DOJ required to be disclosed under FOIA? DOJ: Deliberative process privilege! District court: But Attorney General Sessions made his decision to request the citizenship question before the documents at issue were written, so those documents couldn't be "predecisional" (a requirement for the privilege to attach). D.C. Circuit: Yes, the documents postdated the bottom-line decision, but they related to how to articulate that decision. So DOJ gets to keep (most of) them secret.
Federal judge in Puerto Rico appears to have a habit of varying upwards (that is, imposing sentences higher than recommended by the sentencing guidelines) in machine-gun-possession cases based on a sense that machine-gun-related crime is a bigger problem on the island than elsewhere in the United States. First Circuit: Those generic "community characteristics" cannot be the exclusive basis for varying upwards from the guidelines. Forty-eight-month sentence vacated and case remanded for resentencing withing the advisory prison range of 24 to 30 months. Concurrence: "my colleagues have effectively deprived district judges of the ability to align sentences with the perceived level of crimes in their communities, and hence with the requisite need for deterrence." But this result seems compelled by our precedent.
Did Congress, through the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), abrogate the Eleventh Amendment immunity of the Financial Oversight and Management Board for Puerto Rico? First Circuit: Yes. So the Centro de Periodismo Investigativo (a nonprofit media organization) can sue the Board in federal court to seek disclosure of various agency documents under the Puerto Rico Constitution. Dissent: No way. (If Pennhurst piques your interest, this opinion may be worth a read. If not, maybe keep scrolling.)
Participant in a New York armed robbery is sentenced to 100 months' imprisonment plus five years of supervised release, during which he cannot commit a new crime or else he'll go back to the clink. Alas, he commits more crimes, including assaulting his ex-girlfriend. But when she refuses to testify at his revocation hearing, the court relies on her signed statement to police and revokes his supervised release, sending him back for 28 months. Second Circuit: Seems fine. Dissent: He was sentenced to federal prison without a federal indictment for the assault, without the ability to confront accusers, without a jury trial, and without being found guilty beyond a reasonable doubt. None of this is okay, even if our circuit precedent says it is.
New York man's debts are discharged in bankruptcy, including his mortgage. Nevertheless, his mortgage servicer continues to try to collect. He reopens the proceedings and obtains contempt sanctions against the servicer, which appeals and loses. District court: But no appellate attorneys' fees for the man, as the bankruptcy court lacks authority to grant them. Second Circuit: Contempt powers include assessing attorneys' fees. And while you're calculating those fees, consider whether he's entitled to fees for this appeal, too.
Over an eight-day period in late 1979 and early 1980, two men went on a "Kill for Thrill" spree in western Pennsylvania, torturing and murdering their victims. Both were sentenced to death. One died in prison of natural causes. The other has been litigating habeas petitions since 1986. Third Circuit: His conviction and sentence stand. Dissent: Reviewing the records of his horrific childhood would've indicated to an effective attorney that a brain-damage test was necessary. His sentence should be vacated.
Haitian man flees political violence, ultimately making his way to the U.S. But he didn't enter legally, and U.S. officials want him gone. Unlike many, he's able to hire an attorney to represent him. But the attorney provides only scant documentary evidence and fails to prepare the man for his hearing. He loses. Third Circuit: Ineffective assistance of counsel = new hearing.
After Texas man dies in a crash with a semi-truck, his common-law wife sues the trucking company. Twist! Another plaintiff intervenes … a woman who also claims to be the man's common-law wife. During litigation the trucking company goes into bankruptcy and defaults on the lawsuit, leading both maybe-spouses to move for judgment. Can both get paid? Fifth Circuit: Texas doesn't recognize bigamy, so no. The man's first common-law wife wins.
Safe to say that the Fifth Circuit is not impressed with this immigration lawyer, whose "repeated delays have resulted in a situation where Daughter must now effectively proceed as a minor orphan since Mother has died from a prolonged illness" (emphasis in original).
In which the Eighth Circuit applies the ancient legal maxim "laches nihilum prohibet, socii," which means "laches doesn't prohibit anything, you guys" and is no less true for the fact that we made it up just now.
Come for two opinions from this Eighth Circuit panel sparring over whether changed circumstances require it to vacate a preliminary injunction against Iowa's ban on mandatory public-school masking, stay for both of those opinions low-key agreeing that the ban doesn't affect these plaintiffs' children anyway.
This Ninth Circuit case reviewing a denial of asylum is simultaneously so simple that it did not require oral argument and so complex that the three-judge panel generated four different opinions.
Manufacturer of cannabis-derived vaping products sues a competitor for selling counterfeit versions of its trademarked products. The competitor concedes that it counterfeited the products but argues that the manufacturer cannot have a valid trademark, because marijuana remains illegal under federal law. Ninth Circuit: But this product isn't marijuana, it's hemp, which the 2018 Farm Act defines as containing less than 0.3% delta-9 THC by weight (it doesn't say anything about delta-8 THC, an isomer of delta-9 THC, which these products are loaded with).
The American Rescue Plan Act gives money to states to help mitigate the effects of the COVID-19 pandemic, but prohibits states from using the money to offset tax cuts. Arizona sues, alleging that the law violates the Spending Clause and the 10th Amendment. But there's no concrete dispute between the parties yet. Does Arizona have standing? Ninth Circuit: Yes. Arizona has validly alleged a harm to its sovereign interest in being free from federal coercion over its tax policy.
The Constitution guarantees criminal defendants the right to a public trial, but is it a sufficient substitute to provide a live audio stream at the height of the COVID-19 pandemic? Ninth Circuit: The Constitution required the district court to pivot to video, not just audio, streaming. Conviction vacated and case remanded for a new trial either in public or on, like, TikTok or something.
Eleventh Circuit: This lawsuit seeking to prevent the city of Pensacola, Fla., from removing a Confederate monument may be a "topsy-turvy procedural mess," but its resolution is simplified by the fact that "the plaintiffs ultimately being sad about the cenotaph being taken down does not give rise to standing."

This week, the Tennessee Supreme Court rejected the lead claim in a lawsuit challenging the constitutionality of the Tennessee Education Savings Account Pilot Program, giving thousands of low- and middle-income families in Tennessee the ability to direct their children's educations as they see fit. The Institute for Justice, joined by the Beacon Center of Tennessee, intervened in the lawsuit on behalf of Tennessee parents to defend the ESA program's constitutionality against legal claims pressed by the governments of Nashville and Shelby County. The opinion from the Tennessee Supreme Court reverses the Court of Appeals and vacates the Chancery Court's 2020 ruling that held the program violated the Tennessee Constitution's Home Rule Amendment. Click here to learn more.

The Volokh Conspiracy

Slurs Posted from High School Campus Can Be Punished Even If They Aren't "Disruptive" or "Fighting Words"

Casino Mogul Steve Wynn and Lawyer Lisa Bloom Settle #TheyLied Libel Claim, Bloom Will Reportedly Retract

"Illegal Aliens" "May Be 'Disqualified from' Possessing Arms Without Violating the Second Amendment"

Justice Kennedy: Draft Opinion Leak Was "Cowardly, Corrupt, Contemptuous Act."

Court Declines to Enter TRO Ordering Defendants to "Retract … Complaints … to Amazon"

Today in Supreme Court History: May 23, 1991

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