Author: Howard Wasserman

Mike Dorf writes about the DoE investigation of Smith College for admitting trans women. Mike points out something I had forgotten: Title IX does not apply to private undergrad institutions. This allowed HWCs to continue to exist but also to define who they wish to admit. A school does not violate Title IX by admitting only cis-women or by admitting women but defining women however it wished or by admitting everyone but cis men. Smith thus did not violate Title IX by admitting what the bigots at DoE call “biological men.” The anti-trans privacy concerns DoE then cites (bathrooms, athletics, etc.) are no different at Smith than at any other college anywhere, single-sex or co-ed.

Mike then ponders why DoE decided to go after Smith, offering this: “not because the presence of trans students makes its cis students uncomfortable in any way but precisely for the opposite reason–that Smith and Northampton, Massachusetts present an especially welcoming environment for LGBTQ+ persons.” A related take: Smith is the highest-ranked and highest-profile of the three Seven Sisters (the others are Mount Holyoke and Bryn Mawr) that admit trans-women. More people have heard of Smith than the other two, just as more people have heard of Penn and Harvard.

This Sixth Circuit decision cannot be right.

Hess, an observer at a Michigan election recount procedure (who sounds like a crazy pain-in-the-ass), told someone in a public gathering that they should “hang” the county director of elections for “treason.” Hess was arrested and prosecuted under the state terrorist-threat statute. While his case was ongoing, the state court of appeals in a different case declared the state law invalid for failing to comply with the state-of-mind requirement of Counterman v. Colorado. The state court dismissed the prosecution on Hess’s motion (rejecting the state’s request for a stay). Hess then filed a § 1983 action to enjoin future enforcement; the district court granted the P/I. The state courts continue wrestling with the validity of state law–the state supreme court reversed the court of appeals declaration of invalidity; the court of appeals implied a recklessness mens rea into the statute; and the state supreme court agreed to review that decision. Shortly after the district court granted the P/I, the state moved to reinstate the charges against Hess; that motion is stayed pending resolution of the federal appeal.

The Sixth Circuit held that Younger abstention did not apply. Granting the P/I constituted “proceedings of substance on the merits” in the federal court prior to initiation of state proceedings. The court also agreed that Hess showed likelihood (if not certainty) of success on the merits in showing that his statement did not constitute an unprotected true threat.

But: Hess could not show irreparable harm. Pre-enforcement EpY/§ 1983 litigation stops future enforcement against future speech; it is not an appropriate vehicle for stopping future enforcement against past speech. Once an individual has engaged in some (arguably) protected speech, he has an adequate remedy at law through defensive nullification in the presumptively good-faith state prosecution. Of course, that opportunity reflects the “equity” piece of Our Federalism. And labeling a preliminary injunction against a threatened state criminal prosecution one of the “most dramatic remedies in a federal court’s arsenal” reflects the “comity” piece of Our Federalism. In other words, in a case where Our Federalism does not compel abstention because of how the litigation process went, the court smuggles Our Federalism into the injunction analysis to achieve the same result.

Again, this cannot be right.

It is true that most pre-enforcement actions involve attempts to stop prosecution of future speech rather than past speech. Practical rather than legal reasons explain this: The state likely can commence enforcement before plaintiff’s federal action commences; the state certainly can commence enforcement before the federal action gets too far (i.e., responding to the federal action by commencing the state action, the “reverse removal” that Justice Stewart warned about). And the plaintiff may have trouble establishing standing–where the state has not moved quickly to prosecute prior speech, it may suggest the absence of an imminent threat and thus an imminent injury. Limiting EpY to lawsuits about planned future speech carries that practical conclusion to a new place.

The idea is also inconsistent with Younger‘s “proceedings of substance on the merits” limitation. A speaker avoids Younger if he can commence and pursue federal litigation before the state commences enforcement. But the state commences enforcement against past speech, not unspoken future speech. If a federal court may consider how far federal proceedings have progressed in deciding whether to abstain in deference to state proceedings targeting that past speech, it must follow that a speaker can pursue federal litigation to stop enforcement against past speech and use the state of federal proceedings to keep the case in federal court. If the Sixth Circuit were correct, courts would never make the “proceedings of substance” inquiry or consider abstention–the injunction would be denied on grounds of lack of irreparable harm.

[Update: On further review, the Sixth Circuit’s approach is inconsistent with Younger itself. Harris had engaged in prior Communist speech; Miranda had shown Deep Throat; M&L had held past nude dancing in the bar. True, the Court declined to hear each case. But the reasoning matters. In each, the Court invented a reason (Our Federalism) not to exercise jurisdiction. Were the Sixth Circuit correct, SCOTUS would have exercised jurisdiction but concluded that plaintiffs were not entitled to those injunctions. That SCOTUS took the former path suggests that plaintiffs can pursue actions and obtain injunctive relief to stop present and future enforcement against past, completed speech]

Moreover, absent a pending state proceeding triggering Younger, we fall back to Ex parte Young. EpY identified as one reason for federal litigation the risk that the state will not pursue enforcement, leaving the railroad uncertain of its rights and without recourse to vindicate those rights and determine its permissible activities. The threat of enforcement hovers over Hess (insert Sword of Damocles reference), at least until the statute of limitations has run. EpY, § 1983, and the Declaratory Judgment Act all seem to authorize Hess to stop the Sword from dangling, at least until the state pursues enforcement.

Finally, I do not believe this squares with First Choice. Plaintiffs there challenged an already-issued subpoena that targeted past activity, including past and ongoing donor records. Those plaintiffs did not limit their action (and SCOTUS did not require them to limit their action) to stopping future subpoenas. And the Court clearly rejected the idea that defending eventual state enforcement proceedings an adequate remedy at law to avoid irreparable harm.

I am more accepting of Younger and other limits on federal adjudication, limits that force rights-holders to pursue state defensive nullification. If the state wants to prosecute Hess and initiates those proceedings, I generally believe defending those proceedings offers him sufficient protection. But I stop at the idea that § 1983 is categorically unavailable for litigation over past speech or constitutionally protected conduct when state enforcement has not begun.

An important question in light of the Comey indictment:

Does Maxwell Smart have a license to kill?

SCOTUS issued First Choice Women’s Resource Centers v. Platkin the same day as Callais, so it unsurprisingly got lost in the shuffle. A unanimous Court held that the target of a state investigative subpoena can raise a First Amendment challenge to the subpoena through a pre-enforcement federal § 1983/EpY action.

The case offers another test of neutral principles. First Choice arose from New Jersey (Blue State) subpoenaing a crisis pregnancy center (Right-leaning speaker). But Texas, other Red States, and the Trump Federal Trade Commission have targeted Media Matters and other left-leaning speakers with similar subpoenas and demands for information. Presumably First Choice allows them to purse similar pre-enforcement litigation. Media Matters pursued that position in its litigation against the FTC’s civil investigative demand.The day after First Choice, it submitted a letter notice of new authority to the D.C. Circuit (where appeal was pending). Yesterday, the parties filed stipulated dismissals of the appeal and of the civil action. MM also issued a press release announcing a settlement in which the FTC withdrew its investigatory demand, committed to forego similar demands in the future, stated in writing that MM is not the target of any investigation, and committing to pursuing any such future litigation in D.C. (rather than forum-shopping into Texas).

The Court resolved the action on standing grounds. The subpoena or demand causes constitutional injury by chilling the group’s speech and donors’ willingness to support the organization for fear of disclosure. It did not matter that no legal consequence attached to the demand until a court ordered enforcement in a government-initiated action. Unlike a statute (where existence does not cause injury and the plaintiff must show a genuine, imminent threat of enforcement), the mere existence of a subpoena or other targeted demand injures the target. The distinction in targeting makes sense–government immediately injures person or entity by singling that person or entity out through official executive or administrative action. That is different from a statute that affects all people within a class, such that any individual must show that government might enforce that law against her.

The case does indicate the ongoing stupidity of talking about standing rather than constitutional merits in these pre-enforcement cases. The Court finds an injury based on precedent (NAACP v. Alabama, Bonta, and other Civil Rights Era decisions) finding that such demands violate the First Amendment. The subpoenas in this case (or in Media Matters) “injure” only because they almost certainly violate the First Amendment. Moreover, the Court highlights that plaintiffs challenge state subpoenas under § 1983, a congressional authorization “ensuring a federal forum to citizens who claim that state
actors have violated their constitutional rights.” Section 1983 by its terms focuses the inquiry on whether the defendant deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. Talking about injury independent of that constitutional right is, and remains, incoherent. Alas . . .

Lindke v. Freed held a government official running a personal social-media site does not act under color unless his official job duties include speaking on behalf of the government. I argued at the time that the Court should have relied on the wealth of cases involving off-duty police officers who flash their authority, a practical analysis focused on whether the official presented himself to the world as a government actor, regardless of his actual authorization, and whether that flash of (apparent) authority enabled the misconduct. That approach follows from Monroe v. Pape, in which the Court held that police officers act under color even when they exceed state-law limits on their authority.

I did not at the time read Lindke as overruling or limiting those apparent-authority cases. But the Tenth Circuit adopted that reading in Martinez v. City of Aurora. “The upshot is, after Lindke, apparent authority does not suffice to show state action. State action for purposes of § 1983 exists only if an individual acted with ‘actual authority’ to engage in the ‘specific conduct’ of which the plaintiff complains.” Thus, a police officer on administrative leave did not act under color despite repeated flashes of authority in a personal dispute with a neighbor (including flashing his badge, identifying himself as a police officer, using force, and arresting her). Because the department Leave Order instructed the defendant “not take any action as a sworn police officer,” he lacked the formal authority to engage in the challenged conduct.

What does this mean for off-duty police officers? Department policy authorizes them to engage in activities of “sworn officers,” giving them some formal authority.¹ In theory, however, a department could prohibit off-duty officers from police activity, which would seem to free officers to use their gun and badge to engage in all sorts of misconduct and abuse.

And what does it mean for Monroe? The court reads Lindke to require that the officer have authority to commit the “specific” act at issue. This seems to create a level-of-generality problem (in a doctrinal area rife with them). How should the court define the “specific acts” in Monroe–the warrantless entry, suspicionless search, and use of force, all of which were prohibited by state law? Or the purported law-enforcement investigation that brought them to Monroe’s home? What were the specific acts in Screws v. US (Monroe‘s borebearer): Beating Robert Hall to death or bringing him into custody?

Or imagine a police officer who uses excessive force after gaining entry–using his uniform, badge, gun, and threats of arrest–to a restaurant in the guise of performing a function that is outside the formal authority of his department (e.g., a health inspection).

Monroe held that § 1983 opens the federal courthouse to claims against state actors who abuse authority they have from their connection to the state. Did Lindke really close those doors to claims against police officers who mislead the public as to their authority to engage and use that misdirection to engage in misconduct?

1. Plaintiff argued that this policy applies to officers on administrative leave. In an interesting 12(b)(6) move, the court looked at the policy (incorporated into the complaint by reference) and determined that the only rational reading is that it did not apply. ↩︎

Colorado is attempting to amend state law to target the harms of conversion therapy in light of Chiles v. Salazar.

Amended law creates a cause of action (with no limitations period) for damages (but not attorney’s fees) for harms caused by “sexual orientation or gender identity efforts” of licensed mental health professional. The bill attempts to define sexual orientation and gender identity efforts” in viewpoint-neutral terms. It prohibits therapy that “seeks to direct a patient toward a predetermined sexual orientation or gender identity outcome,” regardless “of the sexual orientation or gender identity the patient is directed toward. And it excludes from the definition therapy that explores sexual orientation or gender identity–whether assisting; “accepting, supporting, and understanding;” neutral; or “related to”–so long as it does not seek to direct the patient toward a predetermined outcome.

This sounds like the content-based/viewpoint-neutral approach that Justice Kagan profferred in her Chiles concurrence. By its terms, it would allow claims against affirming therapists with predetermined commitments to “make” the client adhere to a queer identity or orientation (not that any reputable therapists actually do this) as much as against therapists with predetermined commitments to “make” the client reject queerness. That one target of a law does not (in the real world) exist should not render the law viewpoint-discriminatory.

By creating a private right of action, Colorado potentially creates an S.B. 8-type situation. With no public enforcement of the new law, no therapist could bring a pre-enforcement EpY/§ 1983 action challenging the new definitions as the basis for a lawsuit. The bill also applies the new definition to the therapist-licensing provisions challenged in Chiles; thus Chiles or another therapist can pursue pre-enforcement litigation against using those provisions to target their licenses. As in the immediate post-WWH world (when SCOTUS allowed pre-enforcement actions against medical licensers), enjoining the licensers from acting against therapists does not enjoin private individuals from bringing private lawsuits and seeking damages. Or from using the threat of lawsuits to chill therapists from providing or performing harmful therapy. The private right of action thus could have its effect, at least until precedent overtakes events.

Not as good an act of revenge as our public-accommodations law. But pretty good. And another test of the neutral principles of WWH.

I held my Civ Pro Review Session today (the exam is Monday), which means it is again time for them to display their creative projects, an annual tradition I stole from Josh Douglas (Kentucky).

• There was some great visual art this year. But this might be the greatest thing ever:

It is now on display in the COL Atrium.

• This song parody offers the rare discussion of law and equity:

The Rules They Are a-Changin’

Come gather ‘round lawyers, wherever you roam,

And admit that the actions around you have grown,

And come out of your sad, dark pigeonholes.

If your client to you is worth savin’,

Then you better start discoverin’ or you’ll sink like a stone,

For the Rules they are a-changin’.

Come law and equity, you brothers estranged,

For law your writs have horribly aged

And Chancellor, your foot does not know its place.

But Rule 2 has a solution.

One civil action, Jeremy Bentham sits amazed,

For the Rules they are a-changin’.

Come senators, congressmen, please head the call,

The Conformity Act does not help us at all.

Just, speedy, inexpensive; no more to stall.

This game of skill we’ll never win.

Give us an action without substantive walls,

For the Rules they are a-changin’.

Come 1Ls and gunners throughout the land

The Committee has given you something to understand

Their pleadings and motions are at your command

Though notice pleading is fadin’

Plausibility is not so hard a demand

For the Rules they are a-changin’

• The Cast and Crew of Civ Pro:

(Key here. Some of this is universal to Civ Pro, some is specific to cases and documents we discuss in class).

The Erie part of Civ Pro went uniquely well this year. Both sections were really engaged and had a lot of fun with the problems (several described arguing about the problems in study rooms into the wee hours). I will not know if people actually got it until I see their final essays. But they were energized.

For about the past decade I have taught this part almost entirely via problems. They read Erie and Hanna–and this year added Berk. Then I give them a bunch of problems, which we work through in class. I think it is a fun way to teach this topic. And, at least this year, so did they. The problems offer a great review of the rules portion of the class; they have to discuss how issues would be raised under the rules and what procedurally prompts the court to decide choice of law.

Also, a shout-out to Alex Reinert (Cardozo) for helping me crack a gap in the framework: When should a court do a relatively unguided Erie analysis and when should it declare state law substantive and thus controlling. The reality is that most courts do the former and nothing wrong. Obviously I should teach students something more meaningful (besides which, that simple approach is wrong).

Alex’s hack: Having determined that no Act of Congress answers the question, the court should ask whether state law is “arguably procedural.” If no, it is “substantive in every traditional sense” (e.g. the duty-of-care rule in Erie) and applies. If yes, the court does the unguided Erie. Again, not sure if courts do it this way because most are sloppy about the analysis, especially when the result is obvious. But Alex’s addition to the framework makes doctrinal sense.

For anyone interested in stealing the idea–and in the tradition of Mike Dorf sharing his Con Law and Fed Courts exams every semester–here are the problems (all involve suits in federal court, obviously):

1) State law requires disclosure of third-party funding agreements. (This could go down multiple paths, although I think Berk makes the right answer clear.

2) State law requires that dispositive motions be spiral bound with a purple cover. (Having just turned in their final LSV brief–which they must bind with colored card stock–their perspective on what might induce forum shopping changed).

3) State law requires 12-person juries in Med Mal cases, where federal practice uses 6-person juries.

4) Special Anti-SLAPP motion (Also goes down multiple paths, per the circuit split, although I think Berk clarifies the answer).

5) SLAPP statute allows attorney fees following an ordinary 12(b)(6) dismissal. (This strikes close to home–the Southern District of Florida allows fees under Florida’s SLAPP law even if the special motion is not available).

6) SLAPP statute allows damages claims (i.e., the defendant in the prior SLAPP action can sue the SLAPP plaintiff for damages).

7) State statutes of limitations against a hypothetical congressional limitations period and a hypothetical FRCP limitations period. This also allows for a fun discussion–inspired by Ben Spencer’s article from a few years ago–about the invalidity of relation back (if we took § 2072(b) seriously) and the special role Congress can play as to the FRCP.

8) State law allows sexual-assault plaintiffs to proceed pseudonymously, whereas federal courts balances privacy against the interest in open courts.¹

1. I started writing about this, then turned to other projects; I need to come back to it. It presents some unusual Erie/Hanna concerns. When is a multi-prong judicial balancing test an interpretation of an FRCP and when is it stand-alone common law? Might the First Amendment’s “influence if not command” effect on the pseudonymity analysis tilt the Unguided Erie choice toward federal law? ↩︎

JOTWELL published two essays on Elizabeth Chamblee Burch’s The Pain Brokers. Anthony Sebok (Cardozo) reviewed it for the Torts Section, while Seth Endo (Seattle) reviewed it for Courts Law.

The book was the subject of last month’s Prawfs symposium.

I confess that I did not know about Viola Liuzzo: A white woman marched in Selma and worked to register voters, murdered by Klan members who were acquitted by all-white state juries but convicted on federal civil rights charges. She has a number of memorials to her in Detroit, including a posthumous honorary degree from Wayne State and, now, an honorary street sign.

Liuzzo has remained a local story. On the other hand, numerous movies and documentaries (most famously Mississippi Burning) tell thesimilar story of Andrew Goodman, Michael Schwerner, and James Chaney in Philadelphia, Mississippi–Klan kills civil rights activists, white local juries acquit, Feds succeed on civil rights charges. Norman Rockwell painted “Murder in Mississippi:” Memorials have been erected throughout the country.

The difference tells us something about the legal stories that stick in history, those that history forgets, and why the difference.

The Mississippi case had one unique piece: Local law enforcement officers were involved in the killings. It produced SCOTUS precedent (US v. Price) establishing conspiracy as a basis for action under color for § 241 (and § 1983) purposes. It also furthers the narrative of a Black/Jewish alliance.

That Liuzzo was a woman almost certainly affects perceptions and memory. Today we celebrate her as the only white woman killed during the Civil Rights Movement. In 1965, being a woman no doubt triggered “she never should have been there” discourse–not only as an outside agitator in the Jim Crow South (the label with which southerners tagged Goodman and Schwerner) but also as a woman venturing outside the home in the early days of the Women’s Movement. The story above adds other elements–one of the people in the Klan car was an FBI informant. And J. Edgar Hoover initially smeared Liuzzo as a drug user who was having sex (“necking parties,” he called them) with the Black Alabamans she was working with. (Who needed the Klan when we had Hoover?)

On last night’s The Pitt, Dr. Robby (Noah Wylie) pushes an unsure and hesitating resident to act quickly in an emergency situation by saying “Doctor the fuck up.”

I will now incorporate this into my daily work:

Unprepared or unconfident students: “Civ Pro the fuck up.” (Can be topic-specific: “Erie the fuck up”).

Colleagues with writers’ block:”Legal scholar the fuck up.”

Administrators slow with next year’s schedule: “Dean the fuck up.”

Thanks to the participants in our Book Symposium on Elizabeth Chamblee Burch’s The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factor.

Below are links to every contribution:

Myriam Gilles

Brooke Coleman

Anthony Sebok

Brad Wendel

Renee Knake Jefferson

Beth Burch

I also will link to JOTWELL reviews of Beth’s book from Anthony and Seth Endo later this month.