How the Fourth Circuit’s ruling today in King v. Burwell may help challengers in the ACA subsidies fight

Three-judge panels of two federal courts of appeals today issued directly conflicting rulings on a key IRS regulation implementing the Affordable Care Act. This regulation authorized subsidies for those purchasing insurance from government exchanges, regardless of whether those exchanges were established by the federal government (as in most states) or by an individual state. If this regulation is invalid and subsidies are therefore not available on exchanges established by the federal government, then one leg of the government’s three-legged stool in the Affordable Care Act is removed in more than half the states in the country.

In Halbig v. Burwell, a split panel of the D.C. Circuit held the regulation invalid. Shortly thereafter, the Fourth Circuit issued a directly contrary decision in King v. Burwell, upholding the IRS regulation. Most news coverage thus far has focused on the D.C. Circuit’s decision. There may be a few reasons for this: (1) lots of policy journalists in D.C.; (2) the D.C. decision came first; and (3) the D.C. decision would alter the status quo significantly, while the Fourth Circuit decision would maintain the status quo.

The Fourth Circuit decision is important as well, though less for what it holds than for how its upholding of the regulation might actually benefit the challengers who lost the panel decision. In short, the Fourth Circuit’s decision may speed up the timing of Supreme Court review of this issue. Here’s why: En banc review would probably be favorable for the government in both courts. This means it is likely that the government will seek en banc review in the D.C. Circuit case. The decision to grant en banc review by itself would vacate the panel decision, thus eliminating the existing circuit split, at least for the time being. And if the en banc D.C. Circuit were to rule differently from today’s three-judge panel, then there would not be a circuit split with the Fourth going forward. In the absence of the Fourth Circuit decision, then, it would take a while before the Supreme Court takes a case raising this issue, and the Court might never grant if there is no split. But because the en banc Fourth Circuit is likely favorable for the government, the plaintiffs in that case are likely to bypass en banc review and head straight to the Supreme Court. The Court has discretion whether to grant certiorari, of course, but a circuit split on such an important part of a massive regulatory scheme is the sort of thing that the Supreme Court should hear. Having a final decision in favor of the government therefore is of some help to the challengers because it enables them to go to the Supreme Court more quickly.

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Fourth Circuit reverses denial of leave to amend class allegations that were once “virtually identical” to Dukes v. Wal-Mart but flipped around after Wal-Mart v. Dukes

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.”

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Fourth Circuit holds Virginia’s college newspaper alcohol advertising ban unconstitutional under the First Amendment as applied to Collegiate Times and Cavalier Daily

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.

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“Liking” a Facebook campaign page “is the Internet equivalent of displaying a political sign in one’s front yard” (4th Cir. 2013)

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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A closer look at Virginia’s “Lawrence fix” shows Cuccinelli’s consistency and Fourth Circuit’s faulty conclusion

A recent post by Michael Dorf about Virginia’s cert petition in Moose v. MacDonald reminded me of one thing that I like about the law. It can channel moral and political disagreement in various ways so that people who might disagree as to non-legal matters can agree about legal matters. Dorf concludes, contrary to some of AG Ken Cuccinelli’s most vocal critics, that “Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously.” As I have previously argued (here, here, here, and here), Virginia’s argument is “pretty good” and maybe even better than that. This does not mean that the Supreme Court will grant cert, of course, but this is one of those unusual cases where summary reversal might get serious consideration.

Dorf’s conclusion about the strength of Virginia’s petition depends on the deferential standard of review on federal habeas supplied by 28 U.S.C. § 2254(d). That provision prohibits a federal court from granting an application for a writ of habeas corpus to one in custody pursuant to state proceedings unless the State adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As long as the Virginia state court’s view was not unreasonable, the Fourth Circuit should not have granted relief.

Although disagreeing with most critics on the merits, Dorf apparently agrees that the course of proceedings nevertheless reveals “Cuccinell’s hypocrisy” and his “audacity.” This assessment relies on Cuccinelli’s opposition to a proposed “Lawrence fix” bill that Cuccinelli voted against as a legislator. Here’s the key paragraph of Dorf’s post on this point:

Much of the media coverage of the case has understandably focused on Cuccinelli’s hypocrisy.  The Virginia legislature tried to replace the blanket sodomy prohibition–which applies to everyone regardless of their age–with a narrower law that would focus simply on sex with minors, but Cuccinelli played a role in squashing that effort.  Now he has the audacity to say that he needs to use the broader law as his only available means to target sodomy with minors. Dahlia Lithwick nicely captures what is so outrageous about this move when she writes: “You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.”

This assessment misdescribes the nature of the proposed “Lawrence fix”  in a way that undercuts the analysis. The bill did three things: (1) it separated the bestiality and sodomy prohibitions into separately numbered subsections; (2) it provided that the sodomy prohibition “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution”; and (3) it changed the classification of the sodomy offense from a felony to a misdemeanor (which may have been the reason that some legislators opposed it). Note that nothing in these changes had to do with age; the bill did not “focus simply on sex with minors,” but instead codified the Virginia legislature’s understanding of Lawrence.

And here is where things get (legally) interesting: If the Virginia legislature’s understanding of Lawrence was correct, then the Fourth Circuit‘s analysis was wrong. Under the Virginia legislature’s understanding of Lawrence, the conduct underlying the petitioner’s solicitation offense (solicitation of oral sex from a minor) was not constitutionally protected. The narrowing that would have been accomplished as a matter of state law under the proposed fix would not have excluded petitioner’s conduct from the sweep of the prohibition. Not only would sodomy involving minors have remained within the prohibition, so too would have sodomy in a public place, and sodomy related to prostitution. The proposed Lawrence fix relied on the very same reading of Lawrence defended by Virginia in Moose v. MacDonald. 

The Fourth Circuit determined that it could not adopt this reading because “a judicial reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with Lawrence, requires a drastic action that runs afoul of the Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).” And yet the Fourth Circuit would have had to do precisely nothing to Virginia’s law in order to deny habeas relief. As a matter of federal law, the prohibition against unconstitutional applications of the sodomy statute already existed because of Lawrence itself. Apart from the change in penalty, there would have been no difference in the state of the law as it existed at the time of petitioner’s September 2004 conduct of conviction if Virginia had enacted the proposed Lawrence fix earlier that year.

And here’s where it gets even more (legally) interesting. The change in penalty would have been significant for petitioner. If the proposed bill had passed, petitioner could not have been convicted of solicitation of a felony because oral sex with a 17-year-old, unrelated minor would have been changed to a misdemeanor instead of a felony. Maybe that would have been a good change in the law; maybe it would have been bad. But by including it in addition to the Lawrence fix, the bill’s sponsors probably lost some votes, perhaps including Cuccinelli’s. If so, then Cuccinelli’s stance is not only not hypocritical, but completely consistent. And it is the critics who are subject to the accusation instead. For the proposed bill would not have enabled Virginia to prosecute the petitioner’s conduct in the way that it did.

Okay, now suppose that Virginia had enacted a Lawrence fix identical to the one proposed but without the change in penalty. Perhaps Cuccinelli could have voted for it. There would have been no reason not to because it would not have worked any real change in the law. If petitioner had then raised a Lawrence-based claim on direct review, he would have had to argue for an extension of Lawrence. And on the supposition that this would have been unsuccessful, his claim for habeas relief would have been unsuccessful because the § 2254(d) standard of review precludes that kind of extension of the law.

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How is bestiality still validly punished as a crime in Virginia? Or is it no longer a crime? Some questions for Dahlia Lithwick.

Writing at Slate, Dahlia Lithwick criticizes what she describes as Ken Cuccinelli’s “war on consensual sodomy in the commonwealth.”  I have criticized Cuccinelli before myself, but it is a mistake to view Cuccinelli’s actions here as an attempt to “employ the federal courts to advance a personal moral agenda.” Although Lithwick’s piece makes some good policy arguments about the advisability of revising Virginia law, I disagree with Lithwick’s criticism of the Attorney General of Virginia for seeking Supreme Court review of a federal habeas corpus decision that incorrectly held a state law partially facially unconstitutional notwithstanding the strictures of 28 U.S.C. § 2254(d).

Before getting into some fairly dense discussion of things like facial challenges and severability that explains why Virginia’s position makes good legal sense, it is fitting at the outset (before I have lost both of my readers) to criticize Lithwick’s piece from the standpoint of legal journalism. It is, of course, fair to criticize a discretionary choice to seek discretionary review, and reasonable people may disagree about whether Virginia should have sought certiorari. But Lithwick’s characterization of the arguments advanced by Virginia in its petition for certiorari is inaccurate and misleading. Virginia is not asking the Supreme Court to “interpret [Virginia’s] terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds,” as Lithwick puts it. Rather, Virginia is asking the Supreme Court to hold that Lawrence v. Texas invalidated Virginia’s statute only insofar as the statute is applied to criminalize consensual, private, non-commercial, adult conduct of the sort at issue Lawrence. According to Virginia’s petition, that is the view of Lawrence adopted by virtually every other court in the country. And asking the Supreme Court to rein in the Fourth Circuit’s outlier reading hardly amounts to “begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are ‘unnatural’.” I realize that there can be many legitimate ways of characterizing legal arguments. But in this piece, Lithwick trades precision for sensationalism. Moreover, the version of the piece that is up as I write contains seventeen links, but not one of these is to Virginia’s actual legal arguments. At a minimum, Slate should immediately include a link to Virginia’s petition so that its readers can judge for themselves. And Slate should probably also add a link to the Fourth Circuit’s opinion itself. (The closest the piece comes now is a link to a post at Constitutional Law Prof Blog. Happy for them to get the traffic, go read!, but there’s nothing like going straight to the source.)

Okay, now for the technical legal stuff of a sort that I find interesting but that has the proven capacity to bore my family (and probably almost anyone else stuck with me on long car trips) to tears.

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An early observation on the Fourth Circuit’s recess appointments decision

A divided three-judge panel of the Fourth Circuit held today that three of President Obama’s appointments to the NLRB were invalid because they did not take place during an intersession recess of the Senate. Senior Judge Hamilton wrote the opinion for the majority in NLRB v. Enterprise Leasing Co. SE, LLC (the lead case on the caption). Judge Duncan joined in full and wrote a separate concurrence. Judge Diaz dissented from the constitutional holding (but concurred in other matters).

Although Judge Hamilton and Judge Duncan were appointed by Presidents Bush 41 and Bush 43, respectively, while Judge Diaz was appointed by President Obama, the best explanation for the differing outcomes tracks methodological rather than partisan political differences. The majority and dissenting opinions exhibit vastly different approaches to constitutional interpretation. The majority emphasizes text and history while the dissent is avowedly pragmatic and functional (indeed the most explicitly functionalist opinion by Judge Diaz that I can recall).

The Fourth Circuit’s decision bodes poorly for the Administration when the Supreme Court addresses these issues next Term in NLRB v. Noel Canning. This assessment is based not simply on the bottom-line conclusion reached by the Fourth Circuit, but on how the opinions were reasoned. On issues like these, the majority of the Supreme Court is methodologically closer to Judge Hamilton than Judge Diaz. It is difficult to see a majority of the Court hewing to the reasoning and conclusions reached by Judge Diaz in this case.

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Fourth Circuit affirms convictions of Somali pirate negotiator

The Fourth Circuit today unanimously affirmed the piracy and piracy-related convictions of Mohammad Shibin, a negotiator for Somali pirates in connection with the seizure of the American sailing ship Quest and the German merchant ship Marida Marguerite. Judge Niemeyer wrote the opinion in United States v. Shibin, in which Judge Motz and Judge Floyd joined. (For news coverage of the oral argument, see here.)

This summary begins the opinion:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5-million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin’s testimony. Accordingly, we affirm.

In the course of explaining why jurisdiction was proper over the non-piracy counts regardless of the presence or absence of universal jurisdiction, the Court explains that “Shibin was involved in hostage taking on the Marida Marguerite and was later found in Virginia, where he was prosecuted.” This is something of an understatement in normal parlance, but makes sense in legal parlance. As the court explains earlier in its opinion, Shibin’s presence in the United States satisfies the “found in” requirement even though that presence was involuntary on his part.

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“As singular a failure as I’ve seen in the history of the Supreme Court”? McGinnis on Windsor, not Shelby County

[Update 1: With commendable quickness, NPR has posted a correction to the web version of the story discussed below. Even the new version would benefit from additional qualification in contrasting the reaction between “political conservatives” and “academic and judicial conservatives,” but no point in nitpicking now.]

[Update 2: Nina Totenberg has posted a classy apology and explanation for her listeners/readers. She explains that the misattribution of the quotation resulted from a mix-up in her notes on the excellent (but lengthy) panel. My memory of the quotation and context may have been more vivid than other listeners’ because the lawyer sitting next to me (whom I do not know) nodded and muttered agreement when Professor McGinnis explained that Windsor‘s failure to articulate a rule of decision can be seen in the fact that the separate dissents of Chief Justice Roberts and Justice Scalia both provided plausible but vastly different accounts of the import of the majority’s holding.)]

Even Totenberg nods.

Nina Totenberg’s end-of-the-term review (HT: How Appealing) includes an extended rip on the Supreme Court’s 5-4 Voting Rights Act decision in Shelby County v. Holder, highlighting criticism by “academic and judicial conservatives.” The quoted critics are Charles Fried, Michael McConnell, and John McGinnis.

One of the most stinging quotations is attributed to McGinnis. Totenberg’s story characterizes McGinnis as arguing that “the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.” She then quotes McGinnis’s comments at a recent judicial conference: “I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.”

The quotation comes from McGinnis’s comments on the Supreme Court review panel at the Fourth Circuit Judicial Conference. McGinnis did utter those words, but he was not talking about Shelby County. Instead, he was talking about Justice Kennedy’s opinion for the Court in United States v. Windsor. That’s a big difference.

A video clip of McGinnis’s remarks is available at http://www.c-spanvideo.org/clip/4457472. McGinnis’s comments are from roughly the 1:40 to 3:30 marks. The “singular failure” quotation is near the conclusion of those comments. McGinnis argues that Windsor is troubling “as a matter of craft” because it fails the “basic requirement of the rule of law . . . to articulate a rule of decision.”

McGinnis did comment on Shelby County during the same panel, but his comments were not nearly as critical as those on Windsor. In fact, McGinnis described the decision in rather sympathetic terms. He appealed to McCulloch‘s “pretext” limitation on congressional power and contended that the preclearance requirement decreased the competitiveness of elections by resulting in the “packing” of districts and reducing the ability of states to experiment with districting. The video of the full panel is available at http://www.c-spanvideo.org/program/313594-1. McGinnis’s comments on Shelby County begin around 19:45.

In the NPR story as it aired, the McGinnis clip on Windsor follows directly after the NPR story’s misquotation of his views on Shelby County. It is difficult to understand how this kind of mistake was not only made initially but also not caught in fact-checking.

Totenberg’s other critical quotations about Shelby County seem correct given their content and context. But while it may be true that “two out of three ain’t bad” in some circumstances, this is not one of them.

The idea that “academic and judicial conservatives” think Shelby County is wrong has already begun to spread. Rick Hasen’s influential Election Law Blog, for example, posts an extended excerpt from the Totenberg story under the post title, “Conservatives Criticize Shelby County Reasoning.”

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Some early observations on the Fourth Circuit’s en banc pregnancy center compelled speech cases

The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.

In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.

In the Montgomery County case, Judge King wrote for a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]

The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.

With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.

Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center’s] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)

Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.

Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.

Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.

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A Lawrence quotation prompted by Buzzfeed’s pick-up of MacDonald v. Moose

With Buzzfeed having picked up Virginia’s petition for rehearing en banc in MacDonald v. Moose (previously discussed here and here), I am prompted to post a quotation from the Court’s opinion in Lawrence v. Texas that recently jumped out at me.

First, some background. I argued in my first post on the case that the panel majority misread Lawrence v. Texas as requiring facial invalidation of the “anti-sodomy provision” in Virginia’s “crimes against nature” statute. One basis for my argument was the claim that “reasoning throughout [Lawrence] is all about the petitioners’ personal interests in liberty and privacy.” One commenter on that post criticized its reasoning by asserting that “bending over backwards to say that the facts here are slightly different and that should be sufficient is not a reasonable position to take because it is based on narrowing Justice Kennedy’s entire due-process analysis to one case and one case only.” That is not the position I meant to adopt. Rather, the force of Lawrence as a precedent rests on its ratio decidendi, which is an understanding of the constitutionally protected personal liberty interests of two adults to engage in certain private, consensual conduct.

Apart from what I have previously posted on the subject, support for my reading of the case can be seen in Justice Kennedy’s description of how the case ought to be decided: “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution” (emphasis added). If one reads Lawrence in this way, then the Virginia court’s disposition of the petitioner’s challenge to his conviction was plainly not contrary to or an unreasonable application of clearly established law.

 

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Woollard, MacDonald, and Standing to Raise a “Facial Challenge”

1. In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. The Fourth Circuit held in that case that one textual provision of Virginia’s more encompassing “crimes against nature” statute was facially unconstitutional under Lawrence v. Texas. As my post indicated, and as some comments to the post discussed in detail, the Fourth Circuit was not making this determination de novo but rather under AEDPA’s deferential standard of review for claims adjudicated on the merits in state court proceedings.  The relevant state court determinations in MacDonald were that the statute was constitutional as applied to petitioner’s conduct and that he lacked standing to bring his facial challenge. Here is the reasoning with respect to the facial challenge:

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. Gallagher. Woollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

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Fourth Circuit holds failure to timely assert precludes preclusion defenses

The Fourth Circuit today ordered the district court to reinstate a jury verdict that had been set aside in response to a renewed post-trial motion for judgment as a matter of law on the basis of claim preclusion and issue preclusion. The appeals court held that trademark infringement defendant von Drehle Corporation had failed to timely assert these affirmative defenses against plaintiff Georgia-Pacific Consumer Products, LP. Judge Keenan wrote the opinion for the court in Georgia-Pacific Consumer Products, LP v. von Drehle Corporation, in which Judge Gregory and Judge Payne (senior judge, EDVA) joined. After seven years of litigation and two trips to the Fourth Circuit, Georgia-Pacific stands to collect a judgment of $791,431 from von Drehle.

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The Fourth Circuit’s obviously (and profoundly) mistaken habeas grant premised on the alleged facial unconstitutionality of Virginia’s “anti-sodomy provision”

[UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a “Facial Challenge” and here.]

A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moose, in which Judge Motz joined. Judge Diaz dissented.

The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.”  In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”

This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.

To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.

The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:

(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.

As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”

Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.

In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.

There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.

The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.

Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.

In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.

The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.

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Fourth Circuit distinguishes Concepcion and holds arbitration provision unenforceable for lack of mutual consideration

A dispute arising out of an inability to obtain a mortgage for the construction of a new million-dollar home in Maryland has resulted in a Fourth Circuit decision holding an arbitration provision unenforceable for lack of consideration. Judge Davis wrote the opinion for the court in Noohi v. Toll Bros, Inc., in which Judge King and Judge Shedd joined. Among other things, the opinion contains a discussion of appellate jurisdiction under the Federal Arbitration Act, issues of contract interpretation under Maryland law, and the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011).

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Fourth Circuit rejects copyright infringement claim arising out of similar residential architecture designs

The Fourth Circuit affirmed the grant of summary judgment to the defendant in a copyright infringement claim brought by a Charlotte, NC architecture firm (Building Graphics, Inc.) against a multi-state building company (Lennar Corp.) and an architecture firm hired by that company (Drafting & Design, Inc.). The appellate court concluded that the plaintiff firm had not “marshaled sufficient evidence to support a finding that there exists a reasonable possibility that [the defendants] had access to its copyrighted plans.” Judge Davis wrote the opinion for the court in Building Graphis v. Lennar Corp., in which Judge Keenan and Judge Gibney (EDVA) joined. (For those who are interested in the potential similarities, an appendix to the opinion includes floor plans and pictures of the houses.)

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Fourth Circuit rejects psychic’s free speech and free exercise challenges to Chesterfield County (VA) regulatory scheme

The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.

From a doctrinal perspective, two noteworthy aspects of  Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”

With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

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How should a TSO respond to an individual’s bizarre state of dishabille?

In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey’s] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.

 

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No problems with pregnancy centers in Montgomery County, but there ought to be a law?

After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Artful characterization of allegedly misleading advertisement in Baltimore pregnancy center oral argument

Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

• Free pregnancy tests and pregnancy information
• Abortion and Morning After Pill information, including procedures and risks
• Medical services, including STD tests, early ultrasounds and pregnancy confirmation
• Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff’s memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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Report from en banc Fourth Circuit oral argument in pregnancy center compelled speech cases

This morning’s lively en banc proceedings at the Fourth Circuit in abortion-counseling-related First Amendment challenges did not produce clear signs of a winner, but raised questions (at least in my mind) about what legal issues the court took the cases en banc to address. There was virtually no discussion of commercial speech doctrine, and no judge or set of judges developed a line of questioning that would seemingly lay the foundation to displace strict scrutiny as the appropriate standard of review. That said, oral argument reveals only so much. After all, the panel dissent in one of the cases contained an analysis of commercial speech that was surprisingly detailed in light of the dissenting judge’s failure to lay the predicates for that analysis in oral argument before the panel. It is possible that something similar could happen here–though it is much harder to make that kind of move when writing for a number of judges rather than just for oneself.

The en banc court heard back-to-back oral arguments in First Amendment challenges to Baltimore and Montgomery County (MD) ordinances requiring certain pregnancy counselors to post signs about the limited nature of the services that they offer. The court’s decision to take these cases en banc vacated panel decisions that granted First Amendment victories to the challengers. (For my earlier coverage of the panel decisions, see here; for my earlier coverage of the oral argument to the panel, see here.) Judge Niemeyer authored those vacated panel decisions, which Judge Agee joined, while Judge King dissented. That configuration of a Niemeyer majority with a King dissent produced back-to-back en banc arguments earlier this year in cases involving the liability of military contractors for activities at Abu Ghraib and other locations in the Iraq war zone. Those arguments resulted in procedural holdings about the lack of appellate court jurisdiction rather than definitive merits rulings. Something similarly limited with respect to the merits may result from this morning’s arguments as well.

As the panel dissenter, Judge King was one of the most vocal questioners at oral argument in both cases. In the Baltimore case, Judge King (along with a few other judges) emphasized the need for more discovery and a better developed record. Given the substance of his dissent in the Baltimore case and the tenor of questioning by other judges, my best guess is that the en banc court will vacate the district court decision in the Baltimore case and remand for further development of the underlying facts. That is not to say I think that is the best decision, only that I think it the most likely decision in light of the limited information revealed at oral argument.

In the Montgomery County case, Judge King returned repeatedly to the “abuse of discretion” standard for appellate review of a decision to grant or deny a preliminary injunction. Even when counsel for Montgomery County correctly noted (against interest) that legal issues were to be reviewed de novo within the context of the abuse of discretion standard for the ultimate decision to grant or deny, Judge King continued to highlight the abuse of discretion standard. Some of Judge King’s questions dovetailed in some respects with Judge Wilkinson’s repeated invocations of “balance” in First Amendment analysis. These emphases, together with some other indicators from oral argument, may suggest a narrow affirmance of Judge Chasanow’s decision. That decision identified a difference between the two sentences that the ordinance compelled centers to include on their signs, and split the difference between the two. Judge Chasanow upheld the portion of the ordinance requiring centers to state that they do not have a licensed medical professional staff, but enjoined the requirement to state that the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider. Judge Wilkinson thought this split-the-difference approach was a sensible balance, and he may not have been alone in that view.

While I have more confidence with respect to the guess about the Baltimore case than the Montgomery County case, I do not have a high level of confidence in either guess. The military contractor en banc cases earlier this year provided much clearer indications of where the center of gravity was on the court at the time of argument. By contrast, there were a number of cross-cutting issues and interventions in these argument.  During portions of the second argument, for example, Judge Gregory and Judge Motz seemed more skeptical of Montgomery County’s ordinance than Judge Wilkinson, who in turn seemed more speech-protective than some of the other judges during argument of the Baltimore case.

Because both of these appeals addressed the issuance of a preliminary injunction, the merits issue of the constitutionality of both ordinances was one step removed from straight-up consideration by the court. Issuance of a preliminary injunction depends on a court’s assessment of the moving party’s likelihood of success on the merits. This is a predictive judgment. If the Fourth Circuit were to hold that the district court in the Baltimore case should not have found a likelihood of success on the merits without allowing for further factual development, while the district court in the Montgomery County case made a reasonable split assessment of the movant’s likelihood of success in that case, that would still leave open the possibility that both ordinances could be completely enjoined down the road.

In my view, that would be the correct ultimate outcome in both cases. The reason for this assessment is the First Amendment standard of review. Both district courts, as well as all three judges on the original panel, thought that strict scrutiny was the appropriate merits standard of review for the preliminary injunction in the Montgomery County case. They were right. Judge King thought that discovery would have helped clarify the appropriate standard of review in the Baltimore case. He argued that Baltimore might have been able to develop evidence to show that the Baltimore ordinance regulated commercial speech. In my view, this argument is based on legal error.

At least as far as the questioning at today’s oral arguments is concerned, the possibility that commercial speech doctrine should apply on remand is the dog that didn’t bark. The qualifier “at least as far as the questioning reveals” is an important one. While Judge King’s questioning at the panel argument was largely favorable to the City, Judge King did not develop lines of questioning to support the analysis that his dissenting opinion ultimately contained. Perhaps a narrow procedural holding would be just an opening move in a push to ultimately apply the standard of review appropriate to regulations of commercial speech. If there is support for that kind of change in the doctrine, it was not revealed at oral arguments today. That is not to say that it did not exist, only that the arguments provided no evidence of the existence of such support. After this morning’s arguments, it remains difficult to see how either Baltimore or Montgomery County can avoid the application of strict scrutiny under First Amendment doctrine as it currently stands.

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What explains today’s unanimous Supreme Court decision overturning the Fourth Circuit on attorney’s fees?

The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.

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Fourth Circuit: No Establishment Clause Violation in Credits for Off-Campus Religious Education

Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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Fourth Circuit Upholds Ban on Corporate Contributions

Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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Pregnancy centers win free speech victories over Baltimore and Montgomery County in Fourth Circuit

A split panel of the Fourth Circuit has handed First Amendment victories to pro-life pregnancy resource centers in the City of Baltimore and Montgomery County, Maryland. The decisions in these two cases hold that Baltimore and Montgomery County violated the First Amendment by requiring pregnancy resource centers to post signs indicating that their services were limited in certain ways. The majority opinions in Greater Baltimore Center for Pregnancy Concerns Inc. v. Baltimore and Centro Tepeyac v. Montgomery County reason that these ordinances compel noncommercial speech and fail strict scrutiny. Judge Niemeyer wrote the majority opinions in both cases, in which Judge Agee joined. Judge King dissented in both cases. (For my coverage of the oral argument in these appeals, see here. Howard Bashman has links to early news coverage at How Appealing.)

There is much that one can say about these cases as a matter of First Amendment law. But in this post I want to highlight some of the court dynamics revealed in the opinions.

First, this kind of panel alignment is one that has led to en banc reconsideration in the recent past. For example, Judge Niemeyer wrote the panel opinions in two Abu Ghraib contractor cases that were joined in by another Republican appointee and that drew a procedurally focused dissent from Judge King. But I would be surprised if the Fourth Circuit were to take these First Amendment cases en banc. Much of Judge King’s dissents in these two cases focus on case-specific things rather than basic principles of First Amendment law. And the ordinances do appear to have a “least restrictive means” problem, at a minimum.

Second, some of Judge King’s language in dissent is arresting. The concluding sentence of the introduction to Judge King’s dissent in the Baltimore case is particularly strongly worded: “Because these proceedings have thus followed a course more fitting a kangaroo court than a court of the United States, I write separately in dissent.” This “kangaroo court” accusation is much harsher than language that the Fourth Circuit itself  has sharply criticized when used by counsel. See, for example, footnote 4 of United States v. Venable, which was joined in by Judge King.

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