O’Connor-Ratcliff v. Garnier

Issues

Does a public official’s act of blocking an individual from their personal social media account constitute state action subject to the First Amendment when the official uses the account to discuss job-related matters with the public but not under any official duty?

This case asks the Supreme Court to determine if public officials engaged in state action by blocking individuals from their social media accounts that were established without official governmental authority but were used for job-related communication with the public. Petitioners Michelle O’Connor-Ratcliff and T.J. Zane argue that their social media pages are not public fora, and their act of blocking individuals from their social media accounts is not a state action because they used personal discretion when exercising control over their accounts and did not base their act on state obligation or authority. Respondents Christopher and Kimberly Garnier counter that the petitioners engaged in state action because even if the government did not explicitly authorize such actions, public officials’ actions related to their roles are equivalent to state actions. Given the widespread use of social media among elected officials, the outcome of this case has significant implications for communication between officials and the public on social media platforms. Furthermore, the Supreme Court will strive to establish a workable standard to determine when the public officials’ non-governmental social media activities can constitute state action, resolving conflicts among circuit courts’ differing standards.

Questions as Framed for the Court by the Parties

Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public but does not do so pursuant to any governmental authority or duty.

Michelle O’Connor-Ratcliff and T.J. Zane (“Trustees”) created public Facebook and Twitter accounts during their election campaigns for the Poway Unified School District (“PUSD” or “District”) Board of Trustees (“Board”). Garnier v. O’Connor-Ratcliff at 1163.

Additional Resources

Submit for publication
0

Lindke v. Freed

Issues

Can a public official’s social media activity constitute state action regardless of whether the official used the account to perform a governmental duty or exercise an authority of their office?

This case asks the Supreme Court to determine when, if ever, a politician may block someone from engaging with their social media posts. In this case, James Freed, a city manager, blocked Kevin Lindke from his personal Facebook page and removed Lindke’s comments criticizing Freed’s response to the COVID-19 pandemic. Lindke contends that, because Freed posted about his official duties on his private page, Freed acted as a state official on it and therefore infringed Lindke’s First Amendment rights by blocking him. Freed disagrees, arguing that because Freed blocked Lindke on his personal account rather than his official account, he was not acting as a state official. The Court’s decision could define the scope of politicians’ responsibilities as the use of personal social media for political activity becomes more popular.

Questions as Framed for the Court by the Parties

Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

In 2014, James Freed became Port Huron, Michigan’s City Manager. Lindke v. Freed at 1. The city manager of Port Huron is responsible for issuing press releases about the city's policies and seeking input on them from citizens.

Submit for publication
0

Vidal v. Elster

Issues

Does the government’s refusal to register a trademark under a provision of trademark law requiring advance consent to use “a name… identifying a particular living individual” violate the Free Speech Clause of the First Amendment, where that trademark criticizes a public figure or government official?

Vidal v. Elster asks whether a federal statute prohibiting the use of a living individual’s name in a trademark without their advance consent violates the Free Speech Clause of the First Amendment. Katherine Vidal, director of the U.S. Patent and Trademark Office, argues that the law does not offend the First Amendment because it is viewpoint-neutral. But even if it did, she contends, the law would stand because it advances the important government interest of protecting individuals’ rights to exploit their identity for profit and protects against false endorsements. Challenging the law is Steve Elster, whose “Trump Too Small” trademark kicked off the dispute. Elster argues that the statute is not content-neutral since its prohibitions are triggered by invoking the specific “content” of an individual’s name. In this way, the rule allegedly differentiates certain speech for more intensive scrutiny by the Patent and Trademark Office.  The outcome of this case will have an impact on general rights of publicity and privacy as well as on the freedom of political speech.

Questions as Framed for the Court by the Parties

Whether the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure.

The Lanham Act, enacted July 5, 1946 and codified in 15 U.S.C. §§1051 et seq., governs the application, maintenance and use of “trademarks”––identifiable signs, symbols or distinctions differentiating a product or service from other similar products or services. To qualify for trademark protection under the Lanham Act, this sign or expression must satisfy a number of statutory proscriptions and requirements.

Acknowledgments

Thanks to Sara Fekkak.

Additional Resources

Submit for publication
0

Culley v. Marshall

Issues

In post-seizure civil forfeiture proceedings, does due process require an additional “retention hearing” and in analyzing that question, should a district court apply Barker v. Wingo’s speedy-trial test, or the three-part analysis announced by Mathews v. Eldridge?

This case asks the Supreme Court to balance a civil forfeiture claimant’s due process rights against a state’s interests in forfeiture and procedural efficiency. Under Alabama state law, the State is required to file a motion for forfeiture proceedings promptly after the seizure of property. In the interim, the statute allows claimants to request return of property believed to be illegally seized, and to post a bond worth twice the value of the property. Lena Sutton and Halima Culley contend that Alabama violated their due process rights by failing to provide a retention hearing and urge the Court to apply the standard from Mathews v. Eldridge to determine whether Alabama’s civil forfeiture processes are sufficient. Steve T. Marshall, Attorney General of Alabama, counters that due process does not require more than the State’s timely initiation of proceedings and thus urges the Court to apply the speedy-trial test from Barker v. Wingo. The outcome of this case has significant implications for the future of private property rights and state interests in civil asset forfeiture cases.

Questions as Framed for the Court by the Parties

Whether district courts, in determining whether the due process clause requires a state or local government to provide a post-seizure probable-cause hearing prior to a statutory judicial-forfeiture proceeding and, if so, when such a hearing must take place, should apply the “speedy trial” test employed in United States v. $8,850 and Barker v. Wingo or the three-part due process analysis set forth in Mathews v. Eldridge.

Petitioners Halima Culley and Lena Sutton both owned vehicles that were seized under Alabama laws which allow the state to hold, subject to civil forfeiture proceedings, property used to facilitate drug crimes. Culley v. Attorney Gen. at 2. On February 17, 2019, Culley’s son was pulled over while driving and arrested for possession of marijuana and drug paraphernalia.

Additional Resources

  • Lydia Wheeler, Car Seizures Are New Test for Justices on Property Rights, Bloomberg Law (April 17, 2023).
  • Marco Poggio, Justices to Hear Wheether Post-Seizure Hearings Are Required,
    Law360 (April 21, 2023).
  • John Sharp, Alabama Civil Asset Forfeiture Faces Consitutional Challenges as Lawmakers Ponder Reform, AL.com (October 07, 2019).
Submit for publication
0

Murray v. UBS Securities, LLC

Issues

Does a plaintiff bringing a claim for retaliation under §1514A of the Sarbanes-Oxley Act of 2002 bear the burden of establishing the employer acted with retaliatory intent, or must the defendant employer demonstrate a lack of retaliatory intent as part of its defense?

This case asks the Supreme Court to clarify whistleblowers’ evidentiary burden when they allege retaliation for conduct protected under the Sarbanes-Oxley Act of 2002. Petitioner Trevor Murray argues that he does not need to prove retaliatory intent to establish a claim against his employer because the language of §1514A and the statutory and administrative precedent establish that the protected activity only needs to be a contributing factor in the adverse personnel action. Respondent UBS argues that employees should be required to prove that their employers acted with retaliatory intent in their initial complaints because the texts of the statute and statutory precedent reflect Congress’s intention to create an intent element. The outcome of this case will determine the amount of proof required for whistleblowers to prove retaliation for protected activities.

Questions as Framed for the Court by the Parties

Whether, following the burden-shifting framework that governs cases under the Sarbanes-Oxley Act of 2002, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or whether the lack of “retaliatory intent” is part of the affirmative defense on which the employer bears the burden of proof.

In 2011, Respondent UBS Securities, LLC hired Petitioner Trevor Murray as a strategist, a role that required him to certify that his reports “accurately reflected his own views” and that his compensation was not tied to his views. Murray v.

Additional Resources

Submit for publication
0

Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC

Issues

Is a provision of a maritime contract specifying which state’s substantive law applies in case of a contract dispute unenforceable if that choice is contrary to the strong public policy of another state whose law would otherwise apply?

This case asks the Supreme Court to decide whether state public policy can impact the enforcement of a choice-of-law provision in a maritime contract. Great Lakes Insurance disputed an insurance claim for Raiders Retreat’s yacht and contends that under the choice-of-law provision in their contract, federal maritime law or, alternatively, New York law applied. Great Lakes argues that such provisions are presumptively enforceable under federal maritime law unless they are contrary to federal public policy. Raiders argues that state public policy can override the presumption of enforceability of choice-of-law provisions, and the state law or Restatement provisions followed by many states should apply. The outcome of this case bears important consequences on whether federal or state law should govern questions of maritime commerce, and whether courts should prioritize uniformity of law over state sovereignty.

Questions as Framed for the Court by the Parties

Whether, under federal admiralty law, a choice-of-law provision in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the State whose law is displaced.

Raiders Retreat Realty (“Raiders”) is a company headquartered in Pennsylvania. Great Lakes Ins. SE v. Raiders Retreat Realty Co. (“Third Circuit”) at 227. Raiders owns a yacht, which has its hailing port in Pennsylvania. Brief for Respondent, Raiders Retreat Realty Co.

Acknowledgments

The authors would like to thank Professor Diogo Magalhães for his insights into this case.

Additional Resources

Submit for publication
0

Alexander v. South Carolina NAACP

Issues

Did the South Carolina redistricting process violate the Equal Protection Clause in setting a racial target in the design process for one of its districts?

This case asks the Supreme Court to determine whether the district court panel erred in ruling that South Carolina’s Congressional District 1 (“CD1”) was a racial gerrymander prohibited by the Equal Protection Clause of the Fourteenth Amendment. Appellee the South Carolina State Conference of the NAACP (“the NAACP”) asserts that the panel correctly found that the redistricting board set a 17% black voting age population (“BVAP”) target for their new map of CD1 to create a partisan tilt favoring Republican candidates. Appellant Thomas Alexander (“Alexander”) asserts that racial data was not a factor in the redistricting process and that, instead, the designers of CD1 relied on political data, mainly the precinct-level voting patterns from the 2020 election. Thus, Alexander argues that CD1 does not violate equal protection jurisprudence which permits a political, but not racial, gerrymander. Because of the small majority the Republican Party holds in the US House of Representatives, this case has the potential to have a major shift on both South Carolina’s congressional delegation, but also the political tilt of the House as a whole.

Questions as Framed for the Court by the Parties

(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent;

(2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case;

(3) whether the district court erred when it failed to disentangle race from politics;

(4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles;

(5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and

(6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.

In 2022, the South Carolina Senate adopted a reapportionment plan (“Senate Plan”) to redesign the congressional districts.  South Carolina State Conf. of the NAACP v Alexander at 6-7.  Although Congressional districts should have almost equal population, Congressional District No.

Additional Resources

  • Zack Montellaro, Supreme Court to hear racial redistricting case from South Carolina, Politico (May 15, 2023).
  • Caitlin Byrd, Federal judges strike down SC’s 1st Congressional District as racial gerrymandering, The Post and Courier (Jan. 6, 2023).
Submit for publication
0

Pulsifer v. United States

Issues

Is the “safety valve” provision of 18 U.S.C § 3553(f)(1)—which allows reduced sentences for certain criminal defendants—unavailable only for defendants who, under the Federal Sentencing Guidelines, have more than four criminal history points, a prior three point offense and a prior nonviolent two point offense, or are defendants ineligible if they meet even one of the listed categories?

This case asks the court to analyze 18 U.S.C. § 3553(f)(1), which establishes which criminal defendants can receive reduced sentences under the federal “safety valve” provision and determine whether a defendant is ineligible for safety valve relief only when they meet all three of § 3553(f)(1)’s listed criteria, or if they become ineligible after meeting even one of the three criteria. Pulsifer argues that all three listed criteria must be met for the defendant to be disqualified from safety valve relief, because the “and” which connects the three offense categories is used in the joint sense and bundles the three offense categories together. Pulsifer points to the plain meaning of the statute and Congress’s intent to introduce lenity in sentencing for some criminal defendants. In opposition, the United States argues that the “and” is distributive in this context and effectively functions as an “or”. Therefore, the United States argues, a defendant is disqualified from safety valve relief if they meet even one of the three offense criteria. The United States further maintains that a distributive “and” is required for a proper reading because reading the statute otherwise would render its text arbitrary and redundant. The United States also posits that a distributive “and” would protect the general public from habitual offenders and satisfy Congress’s goal of combating recidivism. This case touches on important questions regarding sentencing guidelines for drug offenses, leniency in sentencing, and the interpretation of federal sentencing statutes.

Questions as Framed for the Court by the Parties

Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).

In 2018, Congress passed the First Step Act. Brief for Petitioner, Pulsifier at 8. This Act altered statutes relating to “safety valve” relief, which permits courts to issue sentences below the statutory minimum for defendants who meet certain criteria.

Additional Resources

Submit for publication
0

Consumer Financial Protection Bureau v. Community Financial Services Ass’n of America

Issues

Does the Consumer Financial Protection Bureau’s funding structure violate the Constitution’s Appropriations Clause because it draws money directly from the Federal Reserve’s proceeds, and, if so, should the Court vacate its Payday Lending Rule?

This case asks the Supreme Court to decide whether the Consumer Financial Protection Bureau’s (“CFPB”) funding structure is constitutional under the Appropriations Clause. The CFPB argues that the text of the Appropriations Clause, in conjunction with its historical and modern understandings, supports its existing funding structure. Consumer Financial Services Association of America counters that the Appropriations Clause requires Congress to make a valid appropriation, and the current funding structure does not satisfy this requirement. The outcome of this case has serious implications for the regulation of financial markets and for consumers who borrow from financial institutions.

Questions as Framed for the Court by the Parties

Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. § 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.

After the financial crisis of 2008, Congress enacted the Consumer Financial Protection Act which created the Consumer Financial Protection Bureau (“CFPB”). 12 U.S.C. §§ 5481–5603.

Acknowledgments

The authors would like to thank Professor Jed Stiglitz for his guidance and insights into this case.

Additional Resources

 

Submit for publication
0

Acheson Hotels, LLC v. Laufer

Issues

Can an individual who proclaims oneself as an Americans with Disabilities Act “tester” and has no intention to visit a place of public accommodation legally challenge that place of accommodation for failing to provide information on disability accessibility?

This case asks the Supreme Court to decide on the Article III standing question where a self-appointed Americans with Disabilities Act (“ADA”) “tester” challenges a hotel reservation website’s failure to disclose information about disability accessibility. Petitioner Acheson Hotels, LLC argues that Respondent Deborah Laufer lacks standing because she failed to assert any concrete, stigmatic, or emotional injury resulting from the missing accessibility information. In opposition, Laufer contends that Acheson’s discrimination against disabled people is the exact type of harm Congress intended to prevent by enacting the ADA. While Acheson further asserts that the case is moot because the website now complies with the ADA regulations, Laufer counters that she suffers continuing injury from third-party websites. The outcome of this case will affect the balance between protecting small businesses from excessive litigation and ensuring tester-plaintiffs’ role in effectively enforcing the ADA regulations.

Questions as Framed for the Court by the Parties

Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.

Respondent Deborah Laufer is disabled within the meaning of the Americans with Disabilities Act (“ADA”). Laufer v. Acheson Hotels, LLC. at 264. She relies on a wheelchair or cane to move around and has visual impairment.

Additional Resources

 

Submit for publication
0
Subscribe to