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A split panel of the Fourth Circuit has reversed, on interlocutory appeal, the denial of leave to amend a Title VII class action complaint alleging company-wide gender discrimination at  Family Dollar Stores. Judge Gregory wrote the opinion for the court in Scott v. Family Dollar Stores, Inc., in which Judge Keenan (who also wrote a separate concurrence) joined. Judge Wilkinson dissented.

This case is full of issues for proceduralists and class-action lawyers. It is likely to prove a source of significant worry for those defending employment class actions in the Fourth Circuit because it allows plaintiffs to transmute their original class allegations into something substantially different three years into the litigation (after briefing on the defendant’s motion for summary judgment was almost complete). The majority and dissent each think the other misunderstands the meaning of Wal-Mart Stores, Inc. v. Dukes, and this back-and-forth is worth studying. But the majority’s answers to the dissent’s identification of the various problems with allowing leave to amend seem unsatisfactory. One prominent criticism of the Supreme Court’s recent jurisprudence tightening up pleading and class certification requirements has been excessive solicitude for corporate defendants’ costs-of-litigation arguments. This decision seem subject to the mirror-image criticism. 

Judge Wilkinson’s discussion of the shortcomings of the majority’s analysis of prejudice is persuasive, particularly given the “clearly erroneous” standard of appellate review of factual determinations related to prejudice wrapped inside the “abuse of discretion” standard for reversing a denial of leave to amend. Perhaps the most impassioned part of Judge Wilkinson’s dissent, however, is his discussion of bad faith. Here is how that discussion begins:

A district court’s refusal to permit a pleading amendment on bad faith grounds is justified where “the plaintiff’s first theory of recovery is based on his own reading of . . . cases and it turns out that he misinterpreted how that theory would apply to the facts of his case.” [438 F.3d] at 428 (emphasis omitted). That situation is precisely what occurred here. Plaintiffs misinterpreted how certain class action precedents would apply to their case and then sought to construct an entirely new set of facts to overcome their error. Their willingness to adopt contradictory factual positions in order to match their evolving legal theories evidences a degree of bad faith sufficient to warrant denial of leave to amend. To the old-fashioned view that prior representations to a court actually count for something, the majority answers: Not much.

Judge Keenan writes separately “to emphasize that despite the dissent’s dystopian view, the majority has rendered a straightforward and limited decision: that the plaintiffs should be permitted to amend their original complaint after a dramatic shift in the law regarding class action certification.” Judge Keenan also notes that the majority opinion does not dictate that class certification is appropriate, and that “if the allegations included in the amended complaint ultimately are not substantiated, the class simply will not be certified, and the plaintiffs’ case will fail.” This observation, however, only underscores the prejudice that the plaintiffs’ flip imposes on the defendant. As the district court observed, “Plaintiffs wish to pursue extensive discovery to support and clarify their new theories, which will require the parties to re-open and conduct new expert discovery based on plaintiffs’ changed version of the facts.”

A footnote in Judge Wilkinson’s dissent responds to Judge Keenan’s concurrence, using about one-and-a-half times as many words in the footnote as the concurrence itself contained. After reciting a litany of questions assertedly unanswered by the majority, Judge Wilkinson concludes: “Perhaps my fine colleagues will some day provide some answers to some of these questions, but for now they are doing what football teams usually do on fourth down.”

On a different note, this is the second decision I’ve noted this week involving the concept of pendent appellate jurisdiction. The Seventh Circuit’s use of what Stephen Vladeck has described as “pendent appellate bootstrapping” seems to have been at the root of the Supreme Court’s DIG in Madigan v. Levin yesterday. The Fourth Circuit’s decision today was enabled by the court’s decision to use pendent appellate jurisdiction to review the denial of leave to amend on interlocutory appeal of the class certification decision. Unless I missed it, Judge Wilkinson did not take issue with this aspect of the majority’s decision, although doing so might have fit well with one of the primary themes of his dissent, namely that “this is a rude reversal.”

Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

Earlier this year, the editors of the Harvard Law Review added a gender component to the journal’s affirmative action policy. The Harvard Crimson headline is “Numbers of Female Harvard Law Review Editors Nearly Doubled in First Gender-Based Affirmative Action Cycle.” But as the story accurately notes, “it is unclear whether the increase in female editors is due to the new affirmative action policy or if more women were selected by chance using the gender-blind process.” And the law review’s President “declined to comment on whether the shift in the admissions process was a success.”

The current President’s refusal to comment is a fitting bookend to that editor’s comment on the new policy as then-incoming President: “It’s too soon to tell what impact the policy will have.” The curious lack of critical curiosity or even comment about how the policy would likely function or is functioning is a consequence of a deliberate insulation from knowledge of effects that has been built into the system itself. And until the law review’s policies provide for some sort of oversight into how the “discretionary committee” that implements the journal’s affirmative action “policies,” it appears that nobody will know how they are working or whether they are needed (putting aside for a moment the difficulty with defining “need” in this context). As I wrote when HLR added gender to its affirmative action “policy”, the existing policies appear designed to create a black box for the accomplishment of undefined mushy quotas:

I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.

At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee.  If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.

The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. [emphasis added 10/9/13] That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.

(Note: To repeat something mentioned in my earlier comment on this process, I welcome “factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.”)

A few posts over at The Volokh Conspiracy at the end of last week raised some good questions about the basis for, and going-forward import of, the Supreme Court’s invalidation of DOMA in United States v. Windsor. In two posts (so far), Neomi Rao has probed the Windsor majority opinion’s use of “dignity,” while Dale Carpenter has provided a different take on the basis for Windsor. And Will Baude has written a post analyzing Friday’s New Jersey trial court ruling that New Jersey must extend the designation of “marriage” to its civil unions (which in New Jersey provide the same legal benefits under New Jersey law as marriage). These posts highlight the confusion that Windsor has spawned by its lack of a clear legal basis. (But see Ernest A. Young, United States v. Windsor and the Role of State Law in Defining Rights Claims, 99 Va. L. Rev. Online 39, 40 (2013) (“[T]he trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite  evident on the face of Justice Kennedy’s opinion.”).)

Some of this confusion stems, in my view, from Justice Kennedy’s description of state marriage law as conferring “dignity and status of immense import” upon those authorized to marry by state law. This understanding locates in the State much greater power than it possesses in a limited government. Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not “confer” dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary. (A similar dynamic comes into play when one assigns an attribute to the State that it does not, properly speaking, possess. Perhaps for this reason, the confusion surrounding Windsor resembles something of the confusion surrounding the Supreme Court’s use of “dignity” in its sovereign immunity jurisprudence.)

Whatever the sources of the confusion in Windsor, it is becoming increasingly clear that Windsor itself is a significant source of confusion for courts trying to figure out its legal import. This is apparent in last Friday’s ruling from New Jersey, Garden State Equality v. Dow. The court in Dow ruled that the equal protection guarantee of the New Jersey Constitution requires New Jersey to extend the designation of “marriage” to same-sex couples that previously were eligible for civil unions in the state. The court’s ruling rests on an interpretation and extension of the New Jersey Supreme Court’s 2006 decision in Lewis v. HarrisIn that case, the New Jersey Supreme Court held that the same state-law rights and benefits provided to married couples in New Jersey must also be provided to same-sex couples eligible for domestic partnerships. The problem with the domestic partnership scheme at issue in that case was that domestic partners received fewer state-law rights and benefits than married couples in New Jersey. The court in Lewis held that there was no fundamental right to marry, but that the state constitution’s equal protection guarantee protected against discrimination in the form of fewer benefits for same-sex couples.

Following Lewis v. Harris, the New Jersey legislature enacted civil union legislation that provided same-sex couples in civil unions with identical state-law rights and benefits as enjoyed by married couples. This appears to have remedied the state-constitutional equal protection violation found in Lewis v. Harris. And that is where matters stood until Windsor.

After Windsor held the federal DOMA unconstitutional, various agencies of the federal government determined that same-sex couples who were married under state law would receive federal benefits as married couples under federal law. But these agencies did not treat state civil unions like marriages. Accordingly, same-sex couples in civil unions in New Jersey were not entitled to the same federal benefits as same-sex couples in marriages in other states that recognized same-sex marriage.

Friday’s ruling in Garden State Equality v. Dow holds that, in the wake of Windsor, New Jersey must allow same-sex couples to marry under New Jersey law in order to be entitled to the same federal-law rights and benefits as married couples, as required by the equal protection guarantee of the New Jersey Constitution as construed in Lewis v. Harris. Here is how the Dow court summarizes its reasoning:

Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

The court’s reasoning is confusing. If the Civil Union Act remedied the violation of New Jersey’s equal protection guarantee by ensuring identical state-law rights and benefits, then how does the new availability of federal-law rights and benefits to those who are married under federal law because married under state law affect the requirements of the equal protection guarantee of the New Jersey Constitution for couples who do not have a state-constitutional-right to marry? The court’s reasoning seems to conclude that the New Jersey Constitution requires access to the federal law benefits enjoyed by married same-sex couples in other states. But if the only reason that those couples are entitled to those federal-law benefits is because the state in which those couples were married has chosen to confer the dignity and status of marriage on those couples, then why should a different state’s constitutional equal protection guarantee require entitlement to federal-law benefits when that state has not chosen to confer the dignity and status of marriage on those couples?

Further, consider the following:

- “Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples.” But what “same rights and benefits”? Under state law? Federal law? Both? It is hard to believe that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- “The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples.” All the same rights and benefits under state law? Under federal law? Both? Again, it is difficult to imagine that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- “The New Jersey legislature chose the latter option when it adopted the Civil Union Act.” Since the Civil Union Act did not do anything to provide same-sex couples with the benefits of marriage under federal law, the New Jersey legislature chose a system in which same-sex couples could obtain all the same rights and benefits under state law that are available to opposite-sex married couples. So when the court says that Lewis required a choice between same-sex marriage and “a parallel structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples,” that parallel structure was measured by reference to state-law rights.

- “Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples.” But same-sex couples in civil unions in New Jersey were not previously entitled to all of the same rights and benefits under federal law as opposite-sex married couples in New Jersey. And that did not violate the New Jersey Constitution. Same-sex couples in civil unions in New Jersey were entitled to the same rights and benefits under state law before Windsor, and they remain entitled to the same rights and benefits under state law after Windsor.

- “Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.” WIndsor held unconstitutional the refusal of federal-law marriage benefits to those upon whom the state conferred the dignity and status of marriage. Same-sex couples in New Jersey are not couples upon whom the state has conferred the dignity and status of marriage. Wasn’t that the basic function of the Lewis court’s distinction between interpreting the New Jersey Constitution to require “marriage” on the one hand, versus interpreting the New Jersey Constitution to allow civil unions with identical rights and benefits as marriage under a different label, on the other?

[Cross-Posted at Mirror of Justice]

A split panel of the Fourth Circuit today held that Virginia’s ban on certain alcohol advertising in college newspapers violates the First Amendment as applied to Collegiate Times (at Virginia Tech) and Cavalier Daily (at UVA). This holding of as-applied unconstitutionality comes almost three-and-a-half years after the Fourth Circuit upheld the same regulation against a facial challenge in Educational Media Co. v. Swecker, 602 F.3d 583 (4th Cir. 2010). The panel declined to decide whether to apply a form of heightened scrutiny to the Virginia speech regulation, but held that the regulation violated the fourth prong of the four-prong Central Hudson test for assessing the validity of commercial speech restrictions. The opinion for the court in today’s decision, Educational Media Co. v. Insley, was authored by Judge Thacker and joined in by Judge King. Judge Shedd (the author of the panel opinion on the facial challenge) dissented. (For more information and background, see the ACLU’s Press Release touting the victory and AP coverage in the Washington Post.)

As described by the Fourth Circuit, the Central Hudson test provides that “a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.” The parties agreed that prongs (1) and (2) were satisfied, and the court held that its earlier analysis in Swecker established that prong (3) was satisfied. Turning to prong (4), the court held that “the challenged regulation fails under the fourth Central Hudson prong because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.” In support of this conclusion, the majority observed that “roughly 60% of the Collegiate Times’s readership is age 21 or older and the Cavalier Daily reaches approximately 10,000 students, nearly 64% of whom are age 21 or older.”

Reading today’s opinion in light of the Fourth Circuit’s earlier opinion in Swecker, one should feel some sympathy for Judge Lauck, who has now been twice reversed in this case. Judge Lauck initially held that the regulation violated the First Amendment on its face, only to be reversed in Swecker. Judge Lauck then upheld the regulation against an as-applied challenge under Swecker, only to be reversed in an opinion that, as a practical matter (though not as a technical matter), reaches the same bottom-line conclusion as Judge Lauck’s initial decision. Moreover, the main evidence relied upon by the Fourth Circuit panel in its consideration of the as-applied challenge was before the panel that decided Swecker and was discussed in Judge Moon’s dissenting opinion in that case.  Although the opinion contains several passages discussing the distinction between facial and as-applied challenges, this is an area of the law that is as murky (or murkier) in the Fourth Circuit as it is elsewhere throughout the federal judiciary.

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the  “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones,  706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it  is the Internet equivalent of displaying a political sign in  one’s front yard, which the Supreme Court has held is  substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,  54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s  Campaign Page conveyed that message to those viewing his profile  or the Campaign Page.15 In fact, it is hardly surprising that  the record reflects that this is exactly how Carter’s action was  understood. See J.A. 160 (McCoy’s testimony that in light of  Carter’s liking Adams’s Campaign Page, “everybody was saying  that . . . Carter is out of there because he supported Adams  openly”); see also J.A. 793 (Sheriff’s Office employee stating  that Roberts had said that “certain employees were on the  Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).

All of this sounds just right.

Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined.  Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).

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