In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
2013-2014 Term Recap (Save Two)
Back on the first Monday in October of 2013, I pointed you to what I thought would be the highlights of the Supreme Court’s term that just ended. Here, for your reference, is a list of those cases, and the actual dispositions that the High Court handed down:
Cline v. Oklahoma Center for Reproductive Justice dealt with whether a state law can restrict a doctor’s ability to prescribe a drug (debatably an abortifacent, although I am not technically able to call a drug that or not) for a medically-valid purpose but which is not described in its FDA guidelines. The result was that the Court punted — taking the case off its docket without any ruling. This let stand the Oklahoma Supreme Court’s disposition overruling that law. Memorandum opinion, so we can’t quite be sure who made this call.
Also abortion-related, McCullen v. Coakley, much as I predicted, refined the rules surrounding time, place, and manner restrictions for anti-abortion protests around abortion clinics. Chief Justice Roberts reversed the First Circuit, striking down a thirty-five foot buffer zone that included public streets and sidewalks as overly restrictive on the free speech rights of the protestors, but also notes that the state can guarantee access to the clinics, just not by way of a law that prohibits peaceful use of public sidewalks. This was a 9-0 decision, but with concurrences by Scalia (joined by Kennedy and Thomas) and Alito.
Executive Benefits Insurance Agency v. Arkison: We now know that in the always-evolving field of bankruptcy law, under Stern v. Marshall, a bankruptcy court can issue findings of fact in bankruptcy-related state law claims but those findings are subject to review by the applicable state court, which also then issues conclusions of law and enters judgment. (I told you this would only be of interest to the law geeks. But it will affect a lot of business law decisions.) Opinion by Thomas for a unanimous court.
Pick your roommates wisely! Fernandez v California tells us by a 6-3 vote that your roommate can give consent for the police to conduct a warrantless search of your home, including of your own stuff. Not really a departure from precedent, because it’s not for the police to sort out whose stuff is whose. Alito wrote the majority opinion. Ginsburg dissented, joined by Sotomayor and Kagan.
Kansas v. Cheever affirmed that a court-appointed psychologist can be called as an expert by the prosecution to rebut testimony by a defense psychologist. So that means that your shrink will say you need civil confinement and now the prosecution can call its own shrink to say that what you really need is some time in the regular pokey. Sotomayor wrote for a unanimous court.
In McCutcheon v. Federal Election Commission, the Supremes struck down aggregate campaign contribution limits as being inconsistent with the First Amendment. Chief Justice Roberts wrote the plurality opinion, joined by Justices Scalia, Kennedy, and Alito. Thomas concurred, and would have gone further to reverse the underlying case of Buckley v. Valeo. Dissent by Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan.
Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.: Can statistical data be used to raise an inference of racial discrimination in the housing context? We’ll have to wait to find out, because the underlying case settled, and the matter was dismissed from the Supreme Court’s docket because there is no longer a live claim or controversy.
National Labor Relations Board v. Noel Canning: Regarding the President’s power to make recess appointments to high administrative positions, Justice Breyer wrote for the Court that yes, the President has power to make recess appointments without the advice and consent of the Senate, at least when there is an actual recess rather than a pro forma recess for only a few days. But in this case, the recess appointment was made during such a pro forma recess which was scheduled to last only three days, so the President could reasonably have sought the advice and consent of the Senate and did not have an immediate need to fill a vacancy on his own, and thus the recess appointment was invalid. Decision was 9-0 in the outcome, but with a separate concurrence by Scalia joined by Roberts, Thomas, and Alito laced with Scalia’s trademark vitriol for the majority.
Navarette v. California affirmed a traffic stop based on an anonymous tipster, without further corroborating evidence. A lot of criminal investigations begin with an anonymous tip, and it’s difficult for the defense to get any other information beyond that should the police choose to protect their source. Unsettling and frustrating, but a fact of life. 5-4 majority opinion by Thomas (joined by Roberts, Kennedy, Breyer, and Alito); dissent by Scalia (joined by Ginsburg, Sotomayor, and Kagan). Interesting split.
You might think that abortion generates the worst fragmentations on the Court, but no, those are just the strongest-held opinions. The muddiest cases are either affirmative action or Establishment. So it’s not a surprise at all that Schuette v. Coalition to Defend Affirmative Action saw a bad split. (Predictably.) The plurality opinion by Kennedy, joined by Roberts and Alito, affirmed the power of state voters to abolish affirmative action by referendum. Scalia and Thomas would have gone further and reversed precedent allowing affirmative action to take place. Breyer concurred in the judgment, but little else. Sotomayor, in her first oral dissent, took a bit of a swipe at the Chief’s reasoning in a prior affirmative action case, joined by Ginsburg. Kagan absented herself, I presume because she handled some of this case while she was serving as the Solicitor General.
Did I mention subjects that cause bad splits and murky law? Yeah, that happened twice, the second time with the other bête noire of judicial clarity, the Establishment Clause. Confronted with an Establishment Clause challenge to a facially-neutral policy soliciting prayers before a city council meeting that resulted in almost uniformly sectarian Christian prayers being dispensed, the Court said in its cacophonously-fragmented Town of Greece v. Galloway decision that because such things are traditional and have always been part of American traditions, there is no Establishment Clause violation. The 5-4 majority vote was opinion by Kennedy, with Thomas and Alito each concurring (Thomas and Scalia in part on the grounds that the Establishment Clause is not incorporated to and therefore does not apply to a state or local government), with the principal dissent by Kagan and a special dissent by Breyer.
One case that I didn’t think last October would be as attention-getting as it was was Sebelius v. Hobby Lobby Stores, Inc. I should have guessed that an Obamacare challenge would get everyone’s dander up. We wound up doing our very first Ordinary Court mock opinions on that one. And as we now know, the Court has deferred ruling on that decision until Monday. No indication why, but we should have the decision then. Look for a majority (or perhaps plurality?) opinion written by Chief Justice Roberts.
Further of note is Riley v. California, in which Chief Justice Roberts announced for a unanimous court that the contents of your cell phone cannot be searched without a warrant after an arrest. The defendant in that case was arrested on a traffic stop and the police accessed digital information on his phone both at the arrest site and later at the station, finding incriminating information and photographs strongly suggesting membership in a street gang and affiliation with known criminals (a violation of the terms of the defendant’s parole), participation in violent activities, and possession of firearms (also a violation of the terms of the defendant’s parole). But without a warrant for the search, the Supreme Court ruled this evidence inadmissible.
At least one commenter expressed interest in Harris v. Quinn, which deals with a “closed shop” union membership rule for state employees. Turns out, we’re going to have to wait a while on this one, too, just like Hobby Lobby. For what it’s worth, SCOTUSBlog reporters (most of whom are attorneys who regularly practice before the Supreme Court) predict a majority opinion written by Alito, which sounds grim for fans of the “closed shop” rule.
The biggest memo opinion, if you ask me, was when the Court denied certiorari in Elane Photography, LLC v. Willock, letting stand the New Mexico Supreme Court’s decision holding potentially liable a wedding photography company that refused to provide service to a same-sex commitment ceremony under that state’s human rights law. Another signpost along the now closed circle of same-sex marriage becoming a right enjoyed by all Americans, and perhaps more importantly of sexual orientation becoming a protected class for purposes of Federal anti-discrimination law. We’re not there yet, though.
So that’s what your Supreme Court did for you this year, my fellow Americans. I’ll try to do another docket preview by the opening of the next term in October.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.