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  • Date:

    City of Grants Pass, Oregon v. Johnson (U.S. June 28, 2024)

    Opinion reversing the judgment of the Ninth Circuit and remanding. Grants Pass, Oregon maintains ordinances prohibiting individuals from sleeping or camping on public property, including in public parks. Two individuals experiencing homelessness brought a class action challenge to these ordinances, asserting that they violate the Eight Amendment’s Cruel and Unusual Punishments Clause, citing the Ninth Circuit’s precedent in Martin v. Boise (9th Cir. 2019), which held that the Eighth Amendment “barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked ‘access to alternative shelter.’” Citing Martin, the district court certified the class action and enjoined Grants Pass from enforcing the ordinance against individuals experiencing homelessness, and the Ninth Circuit affirmed. In reversing the judgment of the Ninth Circuit, the Supreme Court found “the Eight Amendment a poor foundation on which to rest the kind of decree the plaintiffs seek … and the Ninth Circuit has endorsed since Martin,” noting that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize behavior in the first place or how it may go about securing a conviction for that offense.”  

    Topics:

    Constitutional Issues

  • Date:

    Murthy v. Missouri (U.S. June 26, 2024)

    Opinion reversing the judgment of the Fifth Circuit and remanding. Plaintiffs, Missouri, Louisiana, and five individual social-media users, sued “dozens of Executive Branch officials and agencies,” alleging that they had violated the First Amendment by encouraging or coercing various social media platforms, including Facebook and Twitter, to remove, demote, or otherwise treat as “misinformation” many of plaintiffs’ postings related to COVID-19 vaccines and policy and the 2020 elections. The district court granted a sweeping preliminary injunction, and the Fifth Circuit affirmed, though it limited the injunction to provide that “defendants, and their employees and agents, shall not ‘coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including though altering their algorithms, posted social-media content containing protected free speech.’” The Supreme Court stayed the injunction and granted certiorari. In reversing the judgment of the Fifth Circuit, the Supreme Court held that plaintiffs lacked standing to seek injunction against the defendants, finding that plaintiffs had not made a clear showing that (1) the alleged injuries were the result of the defendants’ actions rather than the independent content moderation practices of the platforms or (2) there is a substantial risk that they would face similar alleged restrictions in the near future.   

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Social Media

  • Date:

    Idaho Federation of Teachers v. Labrador (D. Idaho July 2, 2024)

    Memorandum Decision and Order denying Plaintiffs’ Motion for Preliminary Injunction and granting Defendants’ Motion to Dismiss. Plaintiffs, individual university professors and teachers’ unions with members in the state of Idaho, brought free speech and vagueness challenges to Idaho’s No Public Funds for Abortion Act, which provides that no public funds may be used to “promote abortion” or “counsel in favor of abortion” and imposes criminal penalties for public employees who violate the prohibition. The Attorney General of Idaho, however, issued an opinion letter stating that academic speech does not fall under the Act and would not be prosecuted. In denying preliminary injunction and granting defendants’ motion to dismiss, the court found that without a risk of prosecution plaintiffs failed to demonstrate injury or redressability to establish standing.   

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

  • Date:

    Whipper v. Green (D. Conn. July 1, 2024)

    Order denying Defendants’ Motions to Dismiss. Plaintiff, an inmate and student in the Wesleyan University Center for Prison Education (CPE) Program at Cheshire Correctional Institution, represented by court-appointed pro bono counsel, brought First Amendment retaliation claims against Department of Correction (DOC) officials and conspiracy to commit First Amendment retaliation claims against DOC officials and the University’s administrator for the CPE Program after he was removed from the program for refusing to sign a form related to rules of conduct for inmates. He alleged that the form was a way to implement “punitive practices against inmates in response to restrictions placed on DOC personnel by the passage of the Connecticut Protect Act” and that University volunteers disapproved of the requirement. Plaintiff also alleged that his transfer to a different facility for security concerns was pretextual to avoid a possible injunction. In permitting the First Amendment retaliation claim to proceed against the DOC defendants, the court found that (1) refusal to sign the form may be protected expressive activity and (2) plaintiff had also sufficiently alleged adverse actions and causal connection. In permitting the conspiracy claim to proceed against the University’s program administrator, it held that allegations that the administrator was aware of the plan to pressure inmates to sign the form and subsequently participated in removing plaintiff from the program were sufficient to allege that he had agreed to act in concert with the DOC Defendants, notwithstanding the University’s MOU granting the DOC unilateral authority to remove inmates from the program.

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    United States v. Rahimi (U.S. June 21, 2024)

    Opinion reversing the judgment of the Fifth Circuit. Zackey Rahimi was “indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. §922(g)(8).” He pleaded guilty and challenged the law as facially inconsistent with the Second Amendment. After the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen, the Fifth Circuit agreed with Rahimi, finding that Section 922(g)(8) violates Bruen’s requirement that such a law must fit within “the Nation’s historical tradition of firearm regulation.” The Supreme Court granted certiorari and reversed. In an opinion by Chief Justice Roberts, the Court found that (1) the surety laws, long entrenched in common law, “could be invoked to prevent all forms of violence, including spousal abuse” at least on a temporary basis; and (2) a subset of common law known as “going armed” laws “provided a mechanism for punishing those who had menaced others with firearms.” The Court had “no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge,” concluding “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” 

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Second Amendment & Guns on Campus

  • Date:

    Nat’l Rifle Ass’n of Am. v. Vullo (U.S. May 30, 2024)

    Opinion vacating the judgment of the Second Circuit and remanding. In 2017, New York Department of Financial Services superintendent Maria Vullo began investigating affinity insurance programs offered by the National Rifle Association (NRA), finding that the “Carry Guard” program insured, among other things, intentional criminal acts and that the NRA offered the program without an insurance producer license. In addition to criticism of the NRA in press releases and contemporaneous statements from then-Governor Cuomo, Vullo entered into consent decrees with the companies administering and underwriting the program, issued guidance encouraging insurance and financial companies to reevaluate their business “with the NRA or similar gun promotions organizations,” and told one company in a meeting that it could avoid further enforcement action if it “would scale back its NRA-related business.” The NRA brought First Amendment censorship and retaliation claims against Vullo, alleging that she targeted the NRA for its pro-gun advocacy. The district court denied Vullo’s motion to dismiss, but the Second Circuit reversed, finding neither the guidance nor the meeting with the company were individually unconstitutional. The Supreme Court unanimously vacated the judgment of the Second Circuit, finding that the allegations, if true, were sufficient to state a First Amendment claim and that “[t]he Second Circuit could only reach [its] conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRA’s favor.”  

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    Local 8027, AFT-N.H. v. Edelblut (D. N.H. May 28, 2024)

    Memorandum and Order granting Plaintiff’s Motion for Summary Judgment. Plaintiffs, the American Federation of Teachers and the National Education Association, brought First Amendment and unconstitutional vagueness challenges against State officials after New Hampshire amended its education and discrimination laws to provide “that public primary and secondary school students may not be ‘taught, instructed, inculcated or compelled to express belief in, or support for’” four concepts sometimes categorized as “divisive concepts” in public debates surrounding diversity, equity, and inclusion (DEI) initiatives. At an earlier stage, the court dismissed plaintiffs’ claims asserting a constitutional right to control primary and secondary school curricular speech. On cross-motions for summary judgment, the court granted judgment in favor of the plaintiffs, finding the amendments “fatally vague in three ways: (1) they do not provide fair notice as to the concepts that teachers may not teach, (2) they do not sufficiently explain when classroom discussion of a banned concept qualifies as impermissible teaching, and (3) they do not give teachers enough guidance to know when their extracurricular communications are within the amendments’ reach.” The court further found the vagueness was compounded by allowing teachers to be disciplined absent a finding that they acted with scienter.

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Consumer Fin. Prot. Bureau v. Cmty. Fin. Serv. Ass’n of Am., Ltd. (U.S. May 16, 2024)

    Opinion reversing the judgment of the Fifth Circuit. In this case, two trade associations representing payday lenders and credit-access businesses brought statutory and constitutional challenges to the Consumer Financial Protection Bureau’s 2017 Payday Lending Rule, which regulates certain high-interest consumer loans. The district court granted summary judgment to the Bureau, but the Fifth Circuit reversed, finding that Congress exceeded its authority under the Appropriations Clause of the Constitution when it provided that the Bureau would draw its funding from the Federal Reserve System, subject to certain limits, rather than being subject to the political accountability of Congress’s regular appropriations process. After granting certiorari limited to the question of whether that funding mechanism violates the Appropriations Clause, the Supreme Court held that it does not. “Based on the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification,” the Court concluded that “appropriations need only identify a source of public funds and authorize the expenditure of those funds for designated purposes to satisfy the Appropriations Clause.”  

    Topics:

    Constitutional Issues

  • Date:

    Stannard v. State Ctr. Cmty. Coll. Dist. (E.D. Cal. May 10, 2024)

    Order granting Defendants’ Motion to Dismiss. Plaintiffs, two professors at the State Center Community College District, brought First Amendment claims against the District after officials investigated complaints that they had made insensitive or offensive comments in faculty training sessions. In the first instance, District officials determined that a comment made in a “Justice and Healing Circle” during a race-sensitivity training that “children do better if they are raised with both biological parents” did not violate District policy. The second plaintiff received a written reprimand after he (1) entered “do-re-mi” by his name is a Zoom training after the presenter announced a preference for “they/them” nonbinary pronouns and then (2) when the presenter subsequently emailed saying that the apparent joke was perceived as offensive, used “Do,” “mi,” and “they” as pronouns in his reply accusing them of similarly disregarding his of choice of personal pronouns. In granting the District’s motion to dismiss, the court held that plaintiffs’ allegations of self-censorship were conclusory and insufficient to establish Article III standing to seek declaratory and injunctive relief. Neither plaintiff sufficiently alleged that he had a concrete plan to violate District policy that was chilled. Though the second plaintiff’s reprimand was sufficient to show that the District might engage in future enforcement, his allegations failed to show how he had self-censored or that the District’s alleged unwritten pronoun policy remained in effect.  

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech

  • Date:

    Reges v. Cauce (W.D. Wash. May 8, 2024)

    Order granting-in-part Defendants’ Motion to Dismiss and granting Defendants’ Motion for Summary Judgment. Plaintiff, an economics professor at the University of Washington, included in his syllabus and emails and posted on his office door a statement touting the “labor theory of property” that he “intended to make fun of land acknowledgements” and that he knew doing so would be upsetting to others. In response to multiple complaints, the University investigated, warned him against including the statement in his syllabus again, and told him he was otherwise free to express his political views. He then brought First Amendment retaliation, viewpoint discrimination, overbreadth, and vagueness claims against multiple University officials. The court dismissed his overbreadth and vagueness challenges, finding that the words “unacceptable” and “inappropriate” in the University’s Nondiscrimination and Affirmative Action policy are focused only on conduct that resembles discrimination, harassment, or retaliation and penalizes only a limited range of expressive conduct that is not impossible for members of the University community to predict. On cross motions for summary judgment, the court ruled in favor of the University on plaintiff’s retaliation and viewpoint discrimination claims, finding that although his statement was on a matter of public concern relating to his scholarship or teaching, under the Pickering balancing test the University had a legitimate administrative interest in limiting disruptions to staff and students caused by inclusion of the statement in his syllabus.  

     

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

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