Second Circuit: Vans, Inc. v. MSCHF Product Studio, Inc.

Where an alleged trademark infringer incorporates with distortion the characteristics of the original product that indicate its origin and source, the enhanced First Amendment protections for parodies are properly not considered in the preliminary injunction analysis under the statute.

Given the strength of the original marks, the intention to evoke the original marks by using the distorted design established a likelihood of confusion, especially since the original brand occasionally sold special forms of the shoe. Although it might be difficult to actually wear the shoe, enjoining court's determination to the contrary worthy of deference. No clear error in determination that the alleged infringement was of lower quality, but the court erred in holding that legally this worked in the favor of the party claiming infringement.

No abuse of discretion in ordering escrow of gross revenues, as party seeking injunction sought an accounting, and a damages award would include costs and fees. No error in not requiring bond from party seeking injunction, as non-movant didn't request it.

Vans, Inc. v. MSCHF Product Studio, Inc.

DC Circuit: James Blassingame v. Donald Trump

 An incumbent campaigning to retain their present office is not carrying out the duties of the office.  A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.

The President attempted to alter the declared election results by various means.  

The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.    

Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.

Claim under the "Take Care" clause presumes official capacity rather than establishes it. 

Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action.  E.g., Steel Seizure cases.

First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.

Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.

CONCURRENCE:

Motive inquiry is intrusive.  Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.

PARTIAL CONCURRENCE:

Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.  

James Blassingame v. Donald Trump

Eighth Circuit: Ind.-Alliance Party of Minn. v. Steve Simon

 Associational burden of a petition oath swearing to the lack of present intent to vote in a primary election for the contest in question is an insubstantial, and there are policy arguments in favor.  Those signing are presumed to know the law, and therefore that the lack of present intent to do so doesn't keep them from actually voting in the primary--the deterrent effect as to the associational burden on the petition signing isn't to be considered under per se/strict scrutiny.

Ind.-Alliance Party of Minn.  v.  Steve Simon

Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.

 

Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.

Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.

Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory.  The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.

The same holds for trespassing with the intent to harm the enterprise.  Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.

DISSENT

Better remedy would be severence of deception from the intent requirement.

Regulating false statements of fact that cause harm is constitutional.

Right to choose who enters one's property is fundamental.

The law merely distinguishes harmful trespass from trespass without the intent to harm.

The actual speech here isn't implicated, but rather the intent behind the speech.

Private landowners generally have the right to restrict photography on their premises.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf

Ninth Circuit: Herring Networks v. Maddow

 

As precedent compels that the state-law right to preemptive dismissal of spurious defamation claims be treated as a dismissal for not stating a claim if made on a matter of law and as a summary judgment if made on a fact-dependent determination, the court was powerless to look beyond the pleadings to the additional evidence provided by the non-movant when adjudicating it as a motion for preemptive dismissal on a matter of law.

A reasonable viewer would discern from the tenor of the show that the only fact being reported by the television host was the content of the news story being discussed, and that the rest was opinon and commentary.  By disclosing the specific factual basis of the statment, the host reveals the rest to be commentary and hyperbole.

No abuse of discretion in denying leave to amend, since it was never requested, and would have proved futile anyway.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-55579.pdf

Fifth Circuit: United Steel, Paper and Forest v. Anderson

 

As none of the comparators had records as bad as that of the plaintiff, and all of the other plaintiffs derived their interest from the plaintiff's claim, the issue of pretextual justification doesn't present a question for trial.

Equal Protection claim on behalf of the association to which plaintiff belonged is precluded by Supreme Court precedent as a class-of-one claim given the context of discretionary public employment.

Mere assertion that state officers granted immunity by the district court were acting outside the scope of their duties and not in good faith constitutes a forfeiture of the issue on appeal due to lack of argument.

https://www.ca5.uscourts.gov/opinions/pub/20/20-50501-CV0.pdf

Ninth Circuit: USA V. Steven Bachmeier

Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.

Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf

Eighth Circuit: Business Leaders In Christ v. The University of Iowa

 

Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination.  The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.

As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.

CONCURRENCE/DISSENT:

Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.

Business Leaders In Christ  v.  The University of Iowa

Ninth Circuit: Kennedy v. Bremerton School District

 

High school coach's demonstrative religious actions at the center of the field immediately following the game were performed as a public employee in the course of performing the responsibilities of the job.  

The actions cannot be considered personal and private because of the coach's prior attempts to publicize them.  The collective nature of the activity on almost every occasion establishes that an objective observer would conclude that the practice, coupled with the exclusion of others who might seek access, was an endorsement of a particular religion.

Regulation of coach's conduct was sufficiently narrowly tailored to survive strict scrutiny, given the need to avoid a violation of the Establishment Clause.

School district had no obligation under Title VII  to rehire, given the violation of policies.  Plaintiff can't establish a Title VII disparate treatment claim, as there were no comparators engaged in perceptible prayer.  As the coach's only request was public prayer at midfield after the game, school district was not compelled to accept it as a reasonable accommodation of a practice of bona fide religious belief conflicting with job responsibilities, and it was a sufficient basis for the adverse employment action.

CONCURRENCE:

Fact-driven holding.  (Analysis tracks majority opinion.)

Kennedy v. Bremerton School District

Eighth Circuit: Cory Sessler v. City of Davenport, Iowa

 

Permit scheme for city street fair staged by development commission is a content-neutral means of regulating competing use of the public forum; the permit allows for the permitted speech and allows the restriction of disruptions to the permitted speech.

Declared intent to, in the future, speak in public areas is insufficient to establish irreparable harm for an injunction affecting a specific street fair.

Cory Sessler  v.  City of Davenport, Iowa

Eighth Circuit: United States v. Shawn Thomason

 

As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.

As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive.  Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.

Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.

Interstate stalking statute does not unconstitutionally co-opt state authorities.

United States  v.  Shawn Thomason

Seventh Circuit: Susan Bennett v. Council 31

 

As the employee had expressly agreed to pay the union by authorizing the paycheck deduction, and the contract for representation was valid under the state law of the time, the First Amendment right recognized by the courts after the contract had begun did not require an explicit waiver at the time of contractual formation; even under the new standard, any employee who consents to pay can be bound to the contract.

State law defining a public sector bargaining unit and establishing an exclusive representative organization for the bargaining unit does not violate First Amendment associational rights; plaintiff is not compelled to affiliate with the representative organization, and employees are free to form advocacy groups.

Susan Bennett v. Council 31

Fourth Circuit: Vernon Earle v. Shreves

 

Bivvens remedy not available for a prisoner's grievance retaliation claim under the First Amendment.

Vernon Earle v. Shreves

Second Circuit: People of the State of New York v. Griepp

Clear error to exclude evidence in preliminary injunction hearing as hearsay following finding that the situation lacked sufficient urgency to justify admitting hearsay; in a preliminary injunction hearing, the hearsay nature of the evidence always goes to the weight of the evidence.

Clear error to exclude a category of evidence in a preliminary injunction hearing after determining that two documents of the type were unreliable, and another after being unable to determine the reliability of that type of evidence (latter harmless error).  Everything in for appropriate weight. 

For purposes of the obstruction statutes, a minor delay is not per se a reasonable obstruction; the court must still determine if the delay was a reasonable one.

Placement of signs on a sidewalk in a manner that does not functionally exclude access can still be an attempt to intimidate or obstruct within the terms of the statute, even if no pedestrians appear.

When a protester's actions necessitate that an escort step in front of the protected person, the protester has caused the physical obstruction defined in the statute.

Regardless of the consensual nature of the conversation, speaking to someone inside a vehicle through an open door or placing hands on the car while speaking impeded the car from driving away, and could be considered obstruction.

When taken in the context of recent local violence, and given the subjective fear that the listeners felt, stating that death might come at any time would objectively be taken as a true threat not protected by the First Amendment; similar statements conjoined with an exhortation to repent, or referencing disasters distinct from recent local violence present a different question.

As the decision to have an abortion involves a formidable and poignant process, protesters' seeking to force their ideals on patients approaching a facility creates an inference of intent to harass, annoy or alarm.  An explicit or implicit request to be left alone dispels the legitimate intent of potential interlocutors.

Likely repetition of the violations of the statutes suffices to establish irreparable harm for the injunction.

In the interests of judicial economy, cross-appeal of non-movants' early motions not referenced in the memorandum denying the preliminary injunction are appropriately addressed in the appeal of the denial of the injunction under pendent jurisdiction.

Abortion facility speech limitations are content neutral, as they apply to every abortion facility in any context.

Statutes not void for vagueness, given general definitions in criminal code.

Municipal statute creating a cause of action for "any person" legitimizes a parens patriae action by the state in which the municipality is located; sufficient quasi-sovereign interest demonstrated here.

Concurrence:

Municipal statute is a state statute, since the municipality is a creation of the state; certifying the question to the state would be necessary to determine if the state could act parens patriae by its own statute.

Concur/Dissent:

General dissent as to not honoring the determinations of the finder of fact.

Since the cause of action doesn't list government bodies and the rest of the code generally does, and the statute designates a specific enforcement entity with power to seek an injunction, the state does not have parens patriae standing.

Courts are permitted to consider hearsay in a preliminary injunction hearing; they are not required to do so.

Statute's restriction on making access unreasonably difficult or dangerous explicitly excludes de minimis interference.  Concluding otherwise impermissibly burdens speech. 

Finder of fact held that a reasonable observer familiar with the speaker's preaching would not have interpreted the statements about impending death as true threats.

Irreparable harm finding requires ongoing plans and activities.

People of the State of New York v. Griepp

Seventh Circuit: Jason Gonzales v. Michael J. Madigan

Assuming, without extending the precedent, that political deceit can offend the Equal Protection Clause, the conduct alleged was sufficiently publicly known to allow the voters a free choice.

The District Court judge did not violate the First Amendment in holding that the plaintiff's campaign speech had sufficiently revealed the alleged deceit.

Jason Gonzales v. Michael J. Madigan

Eighth Circuit: B.W.C. v. Randall Williams

 

Recital of state's advocacy for vaccination on form required to be signed by those refusing to have their children vaccinated doesn't amount to compelled speech or place any incidental burden on speech.

The requirement to sign the form is a neutral requirement of general applicability that does not cause an increase in the perceived harm of vaccination.

No equal protection claim, as the requirement to sign the form is a general one.

As each individual aspect of the claim is without basis, the hybrid nature of the claim doesn't justify strict scrutiny.

B.W.C.  v.  Randall Williams

Seventh Circuit: Dawn Hanson v. Chris LeVan

Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.

To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.

Dawn Hanson v. Chris LeVan

Seventh Circuit: Elijah Manuel v. Nick Nalley

Retaliation claim arising from prison administrator's search of inmate's cell nine minutes after he mentioned the possibility of filing a complaint against the administrator does not present a genuine issue of material fact for trial, as there had been a report two weeks previous indicating contraband in the cell.

Elijah Manuel v. Nick Nalley

Second Circuit: New Hope Family Services, Inc. v. Poole

Defendant's Free Exercise claim of subtle or covert bias in the implementation of a facially neutral law suffices for additional discovery given the variations between the law and the regulation, the length of time before the regulation was amended, and indications of animus within the administrative process.

Adoption agency's speech is not government speech (e.g., advertisements, monuments, vanity plates), as it's not a traditional mode of communication with the public, and the public doesn't see the speech as government speech -- also, there's no indication that, outside the present context, the govt can control the speech.

Discovery warranted to find out whether compelling certain adoptions might cause the adoprtion agency to change its message in counseling and client contact.

Discovery warranted to determine if compliance with state mandates would harm Free Association by keeping people who would otherwise collaborate with the adoption agency might stay away.

On remand, in tailoring possible preliminary injunction, court must consider verified pleadings and affidavits as evidence of potential harms to constitutional interests.

New Hope Family Services, Inc. v. Poole

Sixth Circuit: Scott Callahan v. Fed. Bureau of Prisons

Given precedent and legislative activity in the area, there is no Bivvens cause of action under the First Amendment for the seizure of an inmate's painting and mailed model photographs; the prison grievance procedures presumably offer sufficient remedy.

Scott Callahan v. Fed. Bureau of Prisons