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.
SCOTUS Takes a Bite Out of Civil Forfeiture
Critics of civil forfeiture are cheering a new, unanimous Supreme Court decision 1 which strikes a significant blow to the practice. The use of forfeiture actions, in which states file suit to confiscate the property of those accused of crimes, has been under fire by people of all political stripes, who see it as an extreme and unfair overreach of power. Critics often point to the frequently disproportional nature of the suits. For example, Indiana resident Tyson Timbs pleaded guilty to drug charges in state court, which resulted in a sentence of home confinement, probation, and a small fine. Based on the leniency of the sentence, one may speculate that Timbs was hardly the heroin kingpin of Indiana. Nevertheless, the state also filed suit to take his $42,000 Land Rover, (which had been purchased with inherited money).
Timbs argued successfully at the trial court level that the forfeiture was unfairly disproportionate to the offense charged. The trial court agreed. The judge agreed that the vehicle had been used during the commission of Timbs’ crime, but found that the forfeiture violated the “excessive fines” clause of the 8th Amendment, applicable to the states via the Due Process clause of the 14th. The court viewed the forfeiture as excessive, pointing out that the maximum fine for the offense itself was less than 1/4 the cost of the vehicle. The State of Indiana appealed, and its state supreme court reversed the trial court’s ruling. The court did not make a determination of whether the forfeiture was excessive, but rather ruled that the “excessive fines” clause did not apply to state actions, but only to those by the federal government. It was this issue with which SCOTUS grappled in Timbs v. Indiana.
In its arguments before SCOTUS, the State contended that while the clause may be applicable to the states, its applicability did not reach to civil forfeiture actions. But the Court had decided that issue previously in Austin v. United States in 1993. That case involved a civil forfeiture by the federal government, and held that the excessive fines clause did, in fact, apply to such actions. SCOTUS here in Timbs declined to overrule Austin, but the state’s alternate theory was that the applicability of the excessive fines clause of the 8th Amendment to forfeiture actions does not extend to the states.
The analysis of applicability of a portion of the Bill of Rights to the states necessitated a bit of a history lesson. The Court has often occasion to interpret what portions of the Bill of Rights were incorporated by the 14th Amendment. In determining that, the Court has held that a protection is applicable to the states when it is ““fundamental to our scheme of ordered liberty,”or “deeply rooted in this Nation’s history and tradition.” 2) In the present case, the State of Indiana did not deny that the prohibition against excessive fines is deeply and fundamentally rooted in American history; it is a concept dating back to the Magna Carta (though its application has not been steadfastly adhered to). Instead, the state argued that civil forfeiture, being a more modern concept, could not be subject to the excessive fines clause. In dispensing with this argument, the Court cited their 2017 decision in Packingham v. North Carolina, which held that prohibiting registered sex offenders from using certain popular social media sites was an infringement on free speech. The Court reasoned that the internet being a recent modern invention does not negate the applicability of the First Amendment. The right of free speech, and here, the right to be free from excessive fines, is fundamental and deeply rooted; whether the circumstance in which it is being applied is fundamental and deeply rooted is irrelevant.
The majority opinion was authored by Justice Ginsburg, joined by all justices except for Thomas, who concurred in the result but not in the analysis. In his concurrence, Thomas took issue with the majority opinion’s use of the Due Process clause of the 14th Amendment in its analysis. Rather, Thomas argues it is the 14th’s privileges and immunities clause that makes the excessive fines clause applicable to the states. 3 Writes Justice Thomas:
Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to “‘proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions,’” or that the State failed to provide “some baseline procedures.”
Whichever analysis is more proper- due process, or privileges and immunities- Mr. Timb’s case will now go back to the State of Indiana for a determination of whether the forfeiture of his vehicle was excessive. More broadly, the effect of this case will, one hopes, apply a throttle on the practice of unfair forfeiture practices. What was once intended to confiscate the direct spoils of crime has become a lucrative means of extra funding for local police agencies. Cash, vehicles, and even homes have been seized under the guise of forfeiture, a process which is outside the confines of any attendant criminal justice system- which means that the accused is not entitled to an attorney to represent him or her in the case. In most states, a person need not ever be convicted of a crime in order to have their property confiscated. The state must prove, by a lower standard than reasonable doubt, that the property seized was used in, or was the product of, some criminal activity.
In Arizona in 2013, 81 year old James Huff was pulled over by an officer on I-40. The officer asked permission to search Huff’s vehicle, which the motorist declined to give. The officer deployed his drug dog and “ran him around” the vehicle. The dog allegedly indicated the presence of narcotics, giving the officer the probable cause needed to search. He found no illegal substances, but he did find over $8,000 cash. The officer tried to get Mr. Huff to sign a form disavowing ownership of the money, but he refused. The officer took the money anyway. Six months later, a small-print legal advertisement was taken out in the local paper by the Arapaho County prosecutor, notifying “all owners of $8400 in U.S. currency” that the money was to be the subject of a forfeiture action. Unaware of the advertisement, Mr. Huff missed the deadline to answer the petition for forfeiture, and lost a court battle to stop the action. He never got his money back. According to the Institute for Justice, :
Mr. Huff was told by a local newspaper employee that what happened to him is known as “paying the I-40 Tax.” Based on notices of publication in the White Mountain Independent,officers in the area routinely seize small amounts of cash—even as small as $135.00. According to the same source, law enforcement focuses their attention on westbound traffic because the drugs come out of California and are sold in the east, but that the drug runners return to California with large amounts of cash. In other words, Mr. Huff was told that the police target the cash, not the drugs.
In Pennsylvania in 2015, police raided the home of Kevin Wilson, a known user of marijuana. The cops found only 2 joints in the home- but they also found $2000 cash in his elderly wife’s belongings, money she had saved from her pension checks. The police called it “illegal proceeds” of criminal activity, and took it. A few days later, the Wilsons received a letter from the local prosecutor, notifying them that a forfeiture action would be brought against $600 seized from their home. The officers and the prosecutor disavowed all knowledge of the remaining $1400. The Wilsons got none of it back.
The Timbs decision is unlikely to solve these or other dubious practices of prosecutors and law enforcement. Another common occurrence is for a defendant to be offered a lesser charge- or the dropping of charges altogether- in exchange for signing over the seized property, eliminating the need for forfeiture proceedings. It is nothing short of commodifying justice, and it happens every day in local courthouses all over the country.
Still, Timbs is a victory for criminal justice. Being caught with some illegal drugs while driving in your BMW should not result in the state owning your BMW and all of the cash in your wallet, but that is a thing that happens. Hopefully, Timbs is the beginning of the end for things like that.
- The Timbs case was one of two unanimous decisions issued by the Court this week. The other involved the disparate tax treatment of pensions of retired US Marshalls in the State of West Virginia.
- McDonald v. Chicago, 561 U. S. 742, 767 (2010
- Gorsuch believed the same, but wrote only a brief paragraph of concurrence stating as much; he did not join Thomas’ concurrence.