Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts
Fifth Circuit: David Wilson v. Houston Community College System
Third Circuit: USA v. Keonna Thomas
Portions of plea hearing under seal in trial record are appropriately withheld given a sufficient showing of probable harm. Although the First Amendment applies to records of plea proceedings, here the court provided sufficient specific reasoning under seal, considered alternatives, and labeled the sealed sections. The common-law right of access is countered when it is the type of information that courts would normally protect, and there was sufficient risk of a clearly defined and serious injury.
http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
Sixth Circuit: Kashiya Nwanguma v. Donald Trump
Political candidate's spoken summary ejection of protesters was not an incitement to riot.
The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words. A single listener's subjective response is not dispositive; the court must consider the actual words used.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf
The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words. A single listener's subjective response is not dispositive; the court must consider the actual words used.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf
Third Circuit: USA v. Amy Gonzalez
Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime. Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.
For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.
As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.
A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.
Possibly prejudicial prior family court records properly admitted with limiting instructions.
Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.
Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.
,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.
Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect. Vouching appropriately limited by instruction.
Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.
Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.
Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.
Injury to victim's children justified the increase of sentence for harming a vulnerable victim.
Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.
http://www2.ca3.uscourts.gov/opinarch/161540p.pdf
Third Circuit: William Lee v. Sixth Mt Zion Baptist Church
Claims of minister whose contract with his church was terminated for cause due to lack of spiritual leadership do not present an issue for trial, as the question would impermissibly entangle the court in religious matters, and the church has a freestanding First Amendment right to select its ministers.
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
Fifth Circuit: Marcus Mote v. Debra Walthall
Employees' rights of expressive association and freedom of speech in forming association for mutual aid and support is protected under the First Amendment whether or not state law will permit the association to become an exclusive bargaining agent for the employees. Denial of qualified immunity upheld, as this was clearly established at the time.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf
First Circuit: Sindi v. El-Moslimany
As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Damages, as limited by remittitur, were appropriate.
State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.
In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.
Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.
Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.
http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf
Seventh Circuit: Comsys Incorporated v. Frank Pacetti
While the restrictions on freedom of speech while in the employ of the government apply to contracted corporations and their employees, where the line between protected and unprotected speech is ambiguous, qualified immunity protects the government from claims of unlawful retaliation.
As the Fourth Amendment only protects against invasion by public actors, accessing of email records by employee of contracted corporation did not violate; the question of direction by state actors is ambiguous enough to warrant qualified immunity.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2053:J:Easterbrook:aut:T:fnOp:N:2173897:S:0
As the Fourth Amendment only protects against invasion by public actors, accessing of email records by employee of contracted corporation did not violate; the question of direction by state actors is ambiguous enough to warrant qualified immunity.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2053:J:Easterbrook:aut:T:fnOp:N:2173897:S:0
Seventh Circuit: Scott Milliman, Sr. v. William Prim
In a S1983 First Amendment retaliatory firing claim, outside contact with the medical examiner and an expert's criticism of their methodology is insufficient to raise a question of pretext for trial when a law enforcement officer is fired based on a medical review that was ordered after he made accusations of highly abnormal corruption in the office.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2687:J:Flaum:aut:T:fnOp:N:2172987:S:0
Fourth Circuit: Angela Horne v. WTVR, LLC
Finance Director of local school board was appropriately considered a public official for the purposes of a defamation action, as the position invites public scrutiny; categorically, a past felony conviction is relevant in such a case.
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
News organization's forgoing a lead that the plaintiff had been knowingly hired by the board did not suffice for actual malice, as the allegation was the sort of thing that might be said if the applicant had in fact lied on the application.
Common-law reporter's privilege prevails over speculative assertion that the identity of the source might reveal the actual malice.
http://www.ca4.uscourts.gov/opinions/171483.P.pdf
First Circuit: Doherty v. Merck & Co., Inc.
State law defining a live, healthy birth as something without remedy at law does not offend state constitutional guarantees of open courts and jury trials.
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.
Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.
Seventh Amendment not incorporated against the states.
Gender discrimination claim insufficiently developed.
http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf
Seventh Circuit: Thaddeus Jones v. Michelle Qualkinbush
The right to vote on policy questions in a referendum is a creature of state, not federal, law, and the referendum process is not a public forum under the First Amendment, so a state entity might legitimately dominate the process if there is a reasonable basis for it to do so.
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
A politician disadvantaged by the state's manipulation of the referendum process is a class of one for Equal Protection purposes, and where the conduct is valid as a general matter, the question is not justiciable. (This last bit is clearly implied, but not explicitly stated in those terms.)
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-14/C:17-1227:J:Easterbrook:aut:T:fnOp:N:2170958:S:0
Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr
State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.
http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf
Ninth Circuit: NLRB v. Ironworkers Local 433
First Amendment ruling as to speech against the government was an insufficient change in existing law to justify relief from judgment enforcing a contempt adjudication on secondary picketing under the Act, as alternate mechanisms of speech such as leaflets are still available, and the Act is content-neutral.
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf
Eighth Circuit: Mahn v. Jefferson County
In First Amendment retaliation case, once the plaintiff produces substantive proof from which the finder of fact can infer that the protected conduct was a motivating factor, the full burden of proof to establish a nondiscriminatory motive for the action passes to the deft.
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
At summary judgment, this nondiscriminatory explanation must be indisputable.
Reinstatement is an equitable remedy permitted against a state official under Ex Parte Young.
Allegations against second official and municipality too speculative to present issue for trial.
http://media.ca8.uscourts.gov/opndir/18/06/161731P.pdf
Fifth Circuit: Marc Veasey, et al v. Greg Abbott, et al
En Banc, Election Law
(Panel of 15)
(7 + 2 partial* & in the judgment)
*A claim of discriminatory purpose in the passage of a law cannot be based on statements from legislators opposed to the passage of the bill.* (This part not joined by the 2)
In assessing discriminatory effect under the Voting Rights Act, a multi-factor test should be used, as opposed to a bright-line nexus requirement.
No ruling on violations of the 1st and 14th Amendment burden of right to vote, as a finding of statutory violation results in the same remedy.
Voter ID requirement was not a poll tax before the law was changed to make the ID free, and is still not a poll tax.
Not an abuse of discretion for the District Court to fashion a remedy, as the legislature is out of session.
Concurrence (2, both joining plurality, one in part):
Multifactor test good, as 5th invented much of it.
Won't open the floodgates, as courts can closely weigh factors.
Concurrence / Dissent (5)
Not a poll tax. Opinion otherwise incorrect. (68pp, mostly findings and merits)
Dissent (3, all in c/d above)
ID requirement still in place, since those who now have the ID must show it.
Judge below made myriad errors.
Concur/Dissent, Concur in J (1, joining plurality in part)
Discriminatory motive analysis of the plurality re-weighed merits inappropriately.
Dissent (6, all non-plurality)
Record justifies reversal on discriminatory purpose.
Dissent (2, both in prior dissent)
Record justifies reversal on discriminatory effect.
Dissent (1, Partially joined plurality)
Record justifies affirming on discriminatory intent.
Takeaway (remember, this is quick work) 9 for Remand for multifactor test on discriminatory effect; 8 for affirming on discriminatory purpose (7 for remand); 14 for the lack of Poll Tax violation; 3 for egg salad; 2 for pastrami.
Marc Veasey, et al v. Greg Abbott, et al
First Circuit: Marrero-Mendez v. Calixto-Rodriguez
S1983, Religion, First Amendment, Establishment Clause
Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.
Marrero-Mendez v. Calixto-Rodriguez
Fourth Circuit: Randall Brickey v. Robb Hall
S1983, Free Speech
Given paramilitary character of police force, there was no clearly established law to the contrary when police officer was fired for suggesting financial malfeasance at the department.
Randall Brickey v. Robb Hall
Ninth Circuit: LONE STAR SECURITY AND VIDEO, V. CITY OF LOS ANGELES
First Amendment, Free Speech
Restrictions on mobile advertising are content neutral and sufficiently narrowly tailored.
Concur: The distinction between signs and decals is philosophically untenable.
LONE STAR SECURITY AND VIDEO, V. CITY OF LOS ANGELES
Fourth Circuit: Melanie Lawson v. Union County Clerk of Court
Free Speech, Employment, First Amendment, S1983
[Assuming S1983, since QI is discussed. c/a not specific.]
A deputy clerk need not have political allegiance to the boss -- it was clearly established law that a clerk who opposed the head clerk in an election should not have been placed on leave for the simple fact of having done so.
The head clerk is not shielded from suit under the 11th Amendment.
Insufficient facts in record for judgment on whether the speech was ultimately protected under a non-categorical balancing test. Insufficient record for ruling on summary judgment.
Long dissent: given burden to establish lack of retributive character to the employment action, there are sufficient facts for judgment in the record
Melanie Lawson v. Union County Clerk of Court
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