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Tag Archives: First Amendment
Social Media and the Supreme Court — Round 1
One of the downsides of the legal system is that the final say on how laws apply to new technologies tend to fall on a group of older lawyers. In other words, most of the votes are in the hands of people who are not on the cutting edge of technology. This year, there will be several cases before the Supreme Court involving social media. To put things in perspective, the four youngest justices essentially went to law school either while I was going to law school or right after I went to law school. At the time that I was in law school, most students did not have e-mail accounts, and we were using very early versions of Word and WordPerfect as our software for writing papers and exams. Needless to say, sites like Facebook and X were not part of our law school and college experiences.
This past week, we got the first of the social media cases for the year — actually two separate cases raising the same issue — whether a public official can block individuals from commenting on the official’s social media webpages. When faced with novel issues, judges tend to try to fall back on existing legal doctrines even if that means forcing round pegs into square holes. And to a some extent that is what we got in the lead case — Lindke vs. Freed in an actual unanimous opinoin written by Justice Barrett.
The basic facts of this case is that the webpage in question was the personal account of the public official. The official had this account before running for and winning his current position. However, he does not his public position on the account similar to how many people not their employment. And he does use his webpage to mention what is going on with that position. The people on the other side of this case took advantage of the comment feature of the webpage to critique what the city government was doing. The public official deleted some comments that he thought were inappropriate or inaccurate before eventually blocking these individuals from commenting. The people who were blocked brought a case claiming that, by blocking them, this official was violating their First Amendment rights.
Supreme Court Preview — October Term 2023 — Part 3
In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline. The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year. Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted. But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review. So any discussion of what cases might get full review is very, very speculative.
Now, we know that some cases will technically be heard. There is a very limited category of cases that have direct appeals to the U.S. Supreme Court. But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases. Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties. For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation. The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.
So what seems likely? The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit. There are two reasons for this. First, these circuits are just big. The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington). The Fifth is not as big geographically but it does include Texas. Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case. So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court.
Posted in Judicial
Also tagged Abortion, guns, redistricting, Supreme Court
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Supreme Court October Term 2021 Preview — Part I
Once again, it’s that time of year. Every year, the Supreme Court starts a new term on the first Monday in October. This is the first full term for the new alignment of justices. While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right, Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.
As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions). In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday. The same thing occurs in Week 2. In Week 3, there is an order list issued on Monday. Finally, in Week 4, the Supreme Court meets in a conference on Friday. At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases. Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion. Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision). (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference. If no justice believes that an application should be granted, it is denied.) During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs). The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari. As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status). In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue. While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter). If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments. The Supreme Court calendar features seven argument sessions. After the last argument session, May and June are spent finalizing the remaining opinions from the year. After the Supreme Court releases its last opinion, they recess for the summer. Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).
As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days). On a typical day, there are two arguments (of approximately one hour each) in the morning. Rarely, there are additional afternoon arguments. More often, there is only one argument on a day. The argument docket for a month tends to be released approximately two months prior to the argument. There are currently nine cases set for October and nine cases set for November.
Posted in Judicial
Also tagged Abortion, free exercise, Free Speech, Religious Land Use and Institutionalized Persons Act, Second Amendment, Supreme Court
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October Term 2020 — Supreme Court Preview (Part One)
Last night, Justice Ruth Bader Ginsburg lost her fight against cancer. In the upcoming days, much will be written commemorating her long fight for justice. Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents). But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer. The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.
Before starting a look at the cases on the docket, three key things to note. First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal). That creates the possibility of a 4-4 tie. In the case of a 4-4 tie, there are two options. On the one hand, the Supreme Court can “affirm by an equally divided court.” Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases. On the other hand, the Supreme Court can set the case for re-argument when there is a full court. It is really up to the justices to decide which option to take. Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant. Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney. The audio from these arguments will be livestreamed by several news organizations.
October is likely to be the calm before the storm. Back last Spring, the Supreme Court had to cancel the March and April argument sessions. The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session. That left about half of the cases that would have been heard in March or April on the docket. Those cases are being heard in October. The biggest case in October is probably the first case up for argument — Carney v. Adams. This case arises from Delaware. Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party. So, on a seven judge court, there would likely be four Democratic judges and three Republican judges. The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants.
Posted in Civil Rights, Healthcare, Judicial
Also tagged Affordable Care Act, Employee Benefits, Free Exercise Clause, Free Speech, HealthInsurance, Immigration, Junevile Justice, Justice Ginsburg, LGBT rights, Religious Freedom Restoration Act, Supreme Court
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Election Law — Supreme Court Edition
While we are still waiting for the decision on the two partisan and one racial gerrymander cases (with less than two weeks to go in the term), we did receive two opinions related to the election process. The first case — Husted vs. A. Phillip Randolph Institute — was a 5-4 decision on the validity of Ohio’s process for verifying the address of voters and correcting their voter rolls by, in theory removing the voters who had moved or died. The second case — Minnesota Voters Alliance vs Mansky — was a 7-2 First Amendment case on wearing political apparel into the precinct on election day.
As the close vote indicates, the issue in Husted was more significant and more controversial. The basic conflict is that federal election law both requires states to take efforts to improve the accuracy of the voter registry and forbids states from removing a voter solely because they did not vote. Ohio basically has a three-step process: Step one — not voting in a cycle (a two-year period); Step 2 — a verification notice sent to voters who did not vote in the last cycle; step 3 — not voting in two cycles (a four-year period) after failing to verify their address. The majority — in an opinion written by Justice Alito — found that the Ohio procedure was consistent with federal law because failure to vote was not the only reason for the removal of the voter. The main dissent, by Justice Breyer, critiques Step 1. According to Justice Breyer, Step 2 and Step 3 comply with the “confirmation process” authorized by federal law that states are to use if they believe that a voter may have changed their address. However, Justice Breyer interprets federal law as requiring that the election authority have a reason — other than the failure to vote — to believe that a voter has moved. Justice Breyer argues that common sense and census data reveals that Ohio’s method is likely to result in the removal of a significant number of voters who have not changed address. In a separate dissent, Justice Sotomayor notes that these overly aggressive purges tend to eliminate voters from vulnerable populations — minorities and the poor who already vote infrequently — thereby suppressing their votes. Even aside from federal law on voter registration, this disparate impact may violate the Equal Protection Clause and Voting Rights Act. While not discussed in these opinions, my hunch is that Ohio makes no effort at outreach to notify voters that these notices are coming and that they need to respond. That lack of outreach and simple experience of recent Republican efforts to make voting more difficult confirms Justice Sotomayor’s theory that this law has nothing to do with complying with the federal requirement that states make efforts to improve the accuracy of voter registration information.
Not surprising for a First Amendment case, the majority opinion in Mansky is written by Chief Justice Roberts. The Minnesota law at issue bans the wearing of political apparel in the polling place. While finding that polling places are “non-public forums” for the purpose of First Amendment law (meaning that the government can ban speech), the majority finds a problem with the way that Minnesota has written its law. The essential problem is that Minnesota law does not define what qualifies as political apparel (unlike many other states with similar laws). While the state election authority has attempted to give local election authorities some guidance on this issue, even that guidance is somewhat ambiguous. This lack of clarity was made abundantly clear during the oral argument in Mansky during which the only conclusion that could be drawn about the current state of the law in Minnesota is that the definition of political falls into the “I know it when I see it” category. Given the broad discretion that the law appears to place in election judges and the lack of clear notice to the voter, the majority found that, as currently written, the law is not reasonable.
Posted in Civil Rights, Elections, Judicial
Also tagged Supreme Court, Voter Registration, Voting Rights Act
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Free Speech Uber Alles
The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law. While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech. Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.
This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday. In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.
The more “traditional” case was Packingham v. North Carolina. This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site. (Under the very broad definition used by North Carolina, this site might qualify.) All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute. The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet. The majority described the internet as the functional equivalent of public streets and parks. (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.) From a factual point of view, this analysis is partly accurate. The internet itself is arguably like a street, but the individual websites are more like private homes and offices. The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum. (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.)
Posted in Judicial
Also tagged Campaing financing, Free Speech, Supreme Court
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Supreme Court 2016-17-Two Weeks Left
One of the unwritten rules of the Supreme Court is that, come hell or high water, the justices will get all of the opinions issued before the July 4th weekend. (In the past, some justices actually maintained a summer home outside of D.C. and those justices were very keen on getting out of D.C. as soon as possible. Even today, justices will spend a good part of the summer elsewhere giving presentations and lectures for various schools and groups.) That will make for a very packed last two weeks. It’s not just that the number of remaining opinions is slightly high, but the number is high after a very light term. For the past decade or so, the Supreme Court has heard between 70 and 86 cases per term. This year, they have only heard 64 cases. The last two weeks of the terms have seen the court issuing between 9 and 17 opinions. This year, we still have 17 cases waiting for opinions. (The pace of grants of argument for the upcoming term is also a little light with 19 cases granted so far which would only take the Supreme Court through November but there tends to be a decent number of cases granted during the last two weeks of the term when the Justices run out of time to postpone making the decision to grant or deny argument in a case.)
Given the large number of cases, it is more likely than not that there will be multiple opinion dates during these two weeks. In theory, all of the opinions could be issued on one day in each week — the decision on which opinions are final and ready to issue is made at the weekly conference (June 15 and June 22). But last second “non-substantive” edits that delays the Court’s printshop from having all of the opinions printed and the sheer number of opinions tends to result in multiple opinion days during this point of the term. (In addition to the two regular conferences, there is always a wrap-up conference after the last opinion issues. In the past, the wrap-up conference typically featured cases that had been “held” because they involved an issue raised in one of the argued cases. Once the argued case has resolved the issue, the held cases can be sent back to the lower court — if necessary — to apply the ruling in the argued case. In recent years, the practice of taking at discussing cases at two or more conferences before granting argument means that the wrap-up conference involves a final decision on several pending applications.)
As noted in past years, the Supreme Court has customs regarding the assignment of opinions that makes it somewhat possible to predict what Justice is most likely to have which opinion by this point of the term. Of course, the number of outstanding opinions does make it a little bit harder this year. The general rule of thumb is that the Supreme Court tries to keep the workload balanced. With eight justices for the first six months of the term, that usually means that: 1) in any month with seven or fewer cases, no justice gets two opinions, and some justices do not have any opinions; 2) in any month with eight cases, each justice gets one opinion; and 3) in any month with nine or more cases, each justice gets at least one opinion, but no justice gets more than two opinions. Additionally, this practice means that a justice who was skipped one month is likely to get two opinions in a following month and a justice who had two opinions in one month is likely to get skipped in a following month. At this point, we do not know whether Justice Gorsuch will be getting one or two opinions from April (we already have one opinion from Justice Gorsuch). If Justice Gorsuch only has one opinion, seven of the other justices will eight opinions and one will have seven opinions. If Justice Gorsuch has two opinions, six of the other justices will have eight opinions and two will have seven opinions. The two justices most likely to have only seven opinions would be the two junior justices — Justice Sotomayor and Justice Kagan — but there is always the possibility that the Chief might decide to count a complicated case as a two-fer to spread the burden of opinion-writing around.
Redistricting Advanced Course
We are four years away from the next full round of redistricting. The redistricting process is a combination of federal law, state law, and local politics. The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map. When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act. (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.) This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.
The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest). Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines. The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.
North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district. Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th. That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts. In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote. In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district), On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats. However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship. Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites.
Posted in Civil Rights, Elections
Also tagged Equal Protection, gerrymander, redistricting, Voting Rights Act
1 Comment
Supreme Court and Politics
In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree. By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular. Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies. The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices. (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years. Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)
The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics. To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much. However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election. This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split). Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines. That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review. While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.
Posted in Civil Rights, Elections, Judicial, LGBT, Politics
Also tagged gender discrimination, Supreme Court, Title IX, transgender
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Supreme Court Preview Part Four — Cases in the Pipeline
On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider. Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on. The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.
Predicting which cases the Supreme Court will actually take is almost impossible. The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases. Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner. But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.
Posted in Judicial
Also tagged LGBT rights, Supreme Court
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