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RELIST WATCH ByJohn Elwood on Apr 20, 2022 at 10:09 am

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

We have a fair amount of movement on the relist rolls this week. To begin with, one familiar nine-time relist is leaving us: Love v. Texas, involving allegations that a racially biased juror, who commented during voir dire that non-white races were statistically more violent than whites, served on petitioner Kristopher Loves capital sentencing jury. The court denied cert on Monday. Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, filed an opinion dissenting from the courts denial of summary vacatur.

We have four new relisted cases this week, raising basically three issues.

The due process clause of the 14th Amendment limits where defendants can be sued. Defendants can be sued in states where they are at home (which, for corporations, is where they are incorporated or have their principal place of business or headquarters) a concept known as general personal jurisdiction. Corporations can also be sued if they have certain minimal contacts in a state related to the conduct giving rise to the suit known as specific personal jurisdiction. Two pending petitions raise the question of the constitutionality of state statutes providing that corporations are deemed to have consented to general personal jurisdiction by virtue of having registered to do business in a state. Some older Supreme Court decisions support that theory of consent. But as Justice Neil Gorsuch recently wrote, It is unclear what remains of the old consent theory. Some courts read [Supreme Court precedent] as effectively foreclosing [this consent-by-registration theory of jurisdiction], while others insist it remains viable.

InCooper Tire & Rubber Company v. McCall, a tire manufacturer resists Georgia courts exercise of jurisdiction on the basis of the states registration statute for foreign corporations. Tyrance McCall, a Florida resident, filed suit in Georgia against Cooper Tire & Rubber Company, a Delaware corporation with its headquarters in Ohio, after a 2016 accident in Florida resulted from the alleged failure of a tire that Cooper manufactured in Arkansas. Coopers activities in Georgia had no connection to McCalls claims against Cooper, meaning that Georgia courts lacked specific jurisdiction over Cooper. Instead, the Georgia Supreme Court upheld general jurisdiction over Cooper on the ground that Cooper, by registering as a foreign corporation in Georgia, had consented to suit in Georgia as a condition of doing business in the state. The court ruled that the Supreme Court had not formally overruled earlier case law supporting the theory that registration supports general jurisdiction.

The petition in Cooper was filed by the defendant in a lawsuit resisting personal jurisdiction. By contrast, the petition in Mallory v. Norfolk Southern Railway Co., was filed by a plaintiff seeking to enforce a similar registration statute. Robert Mallory worked for Norfolk Southern Railway for almost 20 years and claims he developed colon cancer because of his workplace exposure to asbestos and other toxic chemicals. Although the railroads principal place of business is Virginia, it is registered to do business in Pennsylvania as a foreign corporation, and Mallory sued there. However, the Pennsylvania Supreme Court held that states consent-by-registration statute to be unconstitutional under the due process clause. Mallory notes the petition in Cooper Tire raises the same issue with the support of business groups as amici. But Mallory contends that Cooper Tire suffers from serious problems that render it an inferior vehicle to address the question presented, because the Georgia statute does not explicitly provide notice that obtaining authorization subjects them to general jurisdiction in the courts. Norfolk Southern takes the position that the court shouldnt take either case but if the court is going to review the issue, it should do so in the Mallory case. It seems like the odds of a grant are good in one or both cases.

Next up is Kelly v. Animal Legal Defense Fund. A Kansas law provides criminal penalties for trespassing at animal facilities with intent to damage the enterprise, and defines trespass to include entering the facility with the consent of the owners when gained by deception. The law defines an animal facility as any place that houses or breeds animals used for food production, agriculture, or research. In 2018, the Animal Legal Defense Fund sought a declaratory judgment and permanent injunction on the ground that the law violates the First Amendments free speech clause. According to the petitioner, Kansas Gov. Laura Kelly, the group planned to use deception to gain access to animal facilities in order to gain information about them.

The district court agreed with the defense fund that the law violates the First Amendment because it targets negative views about animal facilities. A divided panel of the U.S. Court of Appeals for the 10th Circuit affirmed. To the majority, the law regulates speech because it excludes consent obtained by deception, and the law implicates speech because speech-creating activity, such as taking pictures, would occur at the animal facility. The majority held that the law impermissibly discriminates on the basis of viewpoint because it targets those who wish to damage the enterprise conducted at the animal facility, not those who wish to laud the facility or who act for neutral reasons. In her petition, Kelly argues that the 10th Circuit ruled incorrectly because trespass by deception is not speech, or at least not protected speech, and because the intent to damage component of the law is not viewpoint discrimination. Kelly further claims the circuits are divided on the issue, with a decision of the U.S. Court of Appeals for the 8th Circuit upholding a similar Iowa law.

Last up is Grzegorczyk v. United States. Zenon Grzegorczyk, perhaps embittered that neither of his names had ever been spelled correctly on a Starbucks cup or dinner reservation, hired two people to commit a series of six murders. Unfortunately for Grzegorczyk (but fortunately for a half-dozen other people), they were federal agents. Grzegorczyk pleaded guilty to one count of using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. 1958(a), and one count of possessing a firearm in furtherance of a crime of violence (namely, the Section 1958(a) count), in violation of 18 U.S.C. 924(c). Section 924(c) defines crime of violence as a felony offense that either has as an element the use, attempted use, or threatened use of physical force (the elements clause) or that by its nature, involves a substantial risk [of] physical force (the residual clause). The plea agreement stated that Grzegorczyks Section 1958(a) offense was a crime of violence under Section 924(c). He was sentenced to 211 months of imprisonment.

In Johnson v. United States, the Supreme Court held that the residual clause of the Armed Career Criminal Act (which is phrased similarly to the residual clause of Section 924(c)) was unconstitutionally vague. Grzegorczyk argued that the residual clause of Section 924(c) was likewise unconstitutionally vague. The district court agreed but held that Grzegorczyk had waived the challenge by agreeing that his Section 1958(a) offense was a crime of violence. The U.S. Court of Appeals for the 7th Circuit affirmed.

Before the Supreme Court, Grzegorczyk renews his claim that his Section 1958(a) offense does not qualify as a crime of violence. The government has filed a confession of error, agreeing the offense does not qualify. Further, the government states that it has determined that, consistent with its practice in similar cases, it will forgo reliance on Grzegorczyks guilty plea as a bar to postconviction relief. Accordingly, it argues that the Supreme Court should grant the cert petition, vacate the court of appeals judgment, and remand for further proceedings in light of the governments new position. In the past, some members of the court have expressed some disagreement with the practice of vacating and remanding absent a showing the judgment below is erroneous (perhaps missing here because Grzegorczyks unconditional plea to the offense arguably waives any claim the charge was insufficient). But that view doesnt command a majority, so the odds are good Grzegorczyk will be getting good news shortly.

Thats all for this week. Until next time, stay safe!

Kelly v. Animal Legal Defense Fund, 21-760Issue: WhetherKan. Stat. Ann. 47-1827(b), (c), and (d)violate the free speech clause of the First Amendment by criminalizing trespass by deception at animal facilities with intent to damage the enterprise.(relisted after the April 14 conference)

Cooper Tire & Rubber Co. v. McCall, 21-926Issue: Whether the due process clause of the 14th Amendment permits a state to assert personal jurisdiction over an out-of-state corporation, for claims not arising from or related to any contacts between the corporation and the forum state, on the ground that the corporations registration to do business in the state is deemed consent to general jurisdiction there.(rescheduled before the March 25 conference; relisted after the April 14 conference)

Mallory v. Norfolk Southern Railway Co., 21-1168Issue: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.(relisted after the April 14 conference)

Grzegorczyk v. United States, 21-5967Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of18 U.S.C. 1958(a), is not a crime of violence under18 U.S.C. 924(c).(relisted after the April 14 conference)

Reed v. Goertz, 21-442Issue: Whether the statute of limitations for a42 U.S.C. 1983claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).(relisted after the Feb. 18, Feb. 25, March 4, March 18, March 25, April 1 and April 14 conferences)

Andrus v. Texas, 21-6001Issues: (1) Whether, on remand, the Texas court rejected the Supreme Courts conclusions inAndrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Courts express guidance for conducting a prejudice analysis pursuant toStrickland v. Washington; and (2) whether the Texas courts failure to adhere to the Supreme Courts decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1 and April 14 conferences)

Cope v. Cogdill, 21-783Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced inKingsley v. Hendricksonapplies to inadequate-care claims brought by pretrial detainees as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.(relisted after the April 1 and April 14 conferences)

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Animal rights and the First Amendment, due process and a confession of error - SCOTUSblog

Next Monday, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton, a dispute involving high school football coach Joseph Kennedy, who refused to stop holding post-game prayers on the field and later sued the Bremerton, Wash., school district.

Kennedy claims his 50-yard line prayers were private prayers protected by the First Amendment.

Of course coaches, like all Americans, have a right to the free exercise of religion. But when they sign up to serve in a public school, coaches agree to uphold the prohibition on government endorsement of religion mandated by the Establishment Clause of the First Amendment. Kennedys prayers occurred while he was still on duty, and students came to midfield to join his prayers.

School officials point out that Kennedy had been organizing prayer with students after games for more than seven years. After stopping for a brief time, Kennedy resumed praying on the field with students and refused the schools offer of alternative places to pray in private.

Joseph Kennedys attempt to push the constitutional envelope by praying with students is a familiar story. Over the past 30 years, I have together with religious liberty attorney Oliver Thomas mediated scores of disputes like this and given First Amendment training to thousands of coaches, teachers and administrators in school districts across the country.

Coaches have been among the most challenging staff members to persuade to uphold the law.

Coaches have been among the most challenging staff members to persuade to uphold the law. Coaches often see it as part of their job to share Christ and pray with their team. If told to stop, some coaches find creative ways to take a knee or otherwise circumvent what is required of them under the First Amendment.

In our discussions with coaches and teachers, we often ask them to put on their First Amendment hat when arriving at school each day and keep it on as long as they are on the job. As authority figures and government employees, they must be neutral, honest brokers protecting the rights of all students. If they wish to pray during the school day, they must do so outside the presence of students.

Encouraging school officials to practice religious neutrality while guarding religious liberty for students has been the national consensus for many years. And it works.

The guidelines we offer over what current law requires developed through years of negotiation appeal to most coaches and teachers, leading to greater understanding of the constitutional role of religion in public schools. Left to right, many religious and educational groups have long agreed that public schools may neither inculcate nor inhibit religion. School officials must be neutral among religions and between religion and non-religion.

At the same time, schools must ensure that the religious liberty rights of all students religious and non-religious are protected. For coaches, this means refraining from praying with students. It also means allowing players who wish to do so to pray without pressuring fellow students to join in.

Consider that today, some 30 years after this consensus was first formed, there is more academic study of religions and more constitutional student religious expression in schools today than at any time in many decades. Contrary to culture war myths, religion does come into public schools, but thanks to legal guidelines, it arrives mostly through a First Amendment door.

Contrary to culture war myths, religion does come into public schools, but thanks to legal guidelines, it arrives mostly through a First Amendment door.

Should Joseph Kennedy prevail, this long settled and widely held consensus about the constitutional role of religion in public schools could be upended. New First Amendment lines could be drawn, eroding the requirement of neutrality toward religion by school officials now required under current law.

If that happens, what would we say to coaches and teachers? It is fine to pray with students if you label it private prayer? What would we say to students who feel coerced into joining the coach in prayer for fear of retribution? How would we instruct administrators on where to draw the line when teachers insist on practicing their religion in the presence of students?

In short, if the Supreme Court uses this case to redraw First Amendment boundaries in schools which is very possible given its current makeup decades of effort to get religious liberty right in public schools could be at risk.

Make no mistake: This case has nothing to do with the right to private prayer. Instead, it is about protecting the conscience of every student by requiring religious neutrality of school officials during the school day. That is or should be the core meaning of no establishment under the First Amendment.

Charles Haynes is senior fellow with the Freedom Forum Religious Freedom Center.

Related articles:

Former high school football coach gets a second shot at the Supreme Court with his claim that he ought to be able to lead public post-game prayers on the 50-yard-line

As fired coachs case heads to Supreme Court, broad coalition says its his students who were the victims, not the coach

Originally posted here:
At the Supreme Court: The First Amendment on the 50-yard line - Baptist News Global

Enlarge / Tesla CEO Elon Musk speaks at gigafactory opening party in Austin, Texas, on April 7, 2022.

Getty Images | Suzanne Cordeiro

On Wednesday, Tesla CEO Elon Musk urged a judge to reject a request for a gag order that would prevent him from continuing to publicly claim that his infamous "Funding secured" tweet was accurate.

The motion for a temporary restraining order "asks this Court to trample on Elon Musk's First Amendment rights by barring him from publicly discussing this case or its underlying facts. Plaintiff's motion cannot be reconciled with the Constitution's guarantee of free speech and should be denied," Musk's lawyer wrote in a court filing Wednesday.

Musk and Tesla face a class action lawsuit in US District Court for the Northern District of California over Musk's August 2018 claim that he had secured funding to take Tesla private. Musk and Tesla previously agreed to pay $20 million each in penalties and impose controls on Musk's social media statements to settle a lawsuit filed by the Securities and Exchange Commission, which said that "Musk's misleading tweets" about taking Tesla private caused the stock price to jump "and led to significant market disruption."

Musk acknowledged that no financial deal had been completed, but he argued it was close enough to justify his claim that funding was "secured." In a TED conference appearance last week, Musk again claimed that "funding was actually secured" and he called the SEC "bastards."

After Musk's TED appearance, the lead plaintiff in the class action suit sought a temporary restraining order to prohibit Musk "from speaking with the press, media, news, and other public outlets about this case or the underlying facts until the end of trial."

"Musk's extensive pretrial media interviews pose a clear danger and serious risk to a fair trial because they attract pretrial publicity, poison the jury pool, and influence the outcome on the eve of trial," plaintiff Glen Littleton's motion argued. Advertisement

Littleton's filing said the federal judge overseeing the case has already ruled that Musk's tweets about taking Tesla private "were false and misleading and that Musk made these false statements recklessly and with full awareness of the facts that he misrepresented in his tweets." That ruling by District Judge Edward Chen is still under seal.

"The truth of the August 7, 2018 tweets and Musk's state of mind when publishing them are no longer issues to be decided by the jury. Therefore, Musk's continuing public statements about these issues only serve to prejudice the jury pool in this case by potentially influencing their deliberations during trial," the plaintiff's filing said.

Musk countered that "Both the Ninth Circuit and the Supreme Court have made clear that the extraordinary relief of a prior restraint on litigants' speech is subject to strict scrutiny and permissible only where there is a clear and discernable danger that an entire community will be corrupted by pretrial publicity such that locating twelve objective jurors would be impossible. This is not one of those rare cases."

Musk's court filing defended his comments at the TED conference:

Mr. Musk is in the middle of a public offer to take Twitter private, an undertaking which has led to a debate concerning the improper censorship of speech. In that context, the media has made comparisons with Musk's previous consideration of taking Tesla private. The recent conference Musk attended is a prime example. Chris Anderson of TED asked Mr. Musk if funding was secured for the Twitter deal, an obvious allusion to the events underlying this case. Mr. Musk should be permitted to respond meaningfully and truthfully to inquiries such as this, and not be compelled to remain silent about false insinuations in questions posed to him by the media. Plaintiff's request for a gag order is not designed to limit certain narrow forms of speech to ensure a fair trial; it is instead designed to silence Mr. Musk's statements outside the context of this litigation.

Musk's filing also noted that he is trying to get out of the SEC settlement in a separate court case. Musk claims he was "coerced into signing" the deal with the SEC.

"That agreement involved the same allegations at issue in this case, and Mr. Musk undoubtedly will be called upon by the media and by his shareholders to speak about that ongoing dispute. Imposing a broad and unwarranted gag order in this case would prejudice Musk's rights in connection with that proceeding as well," Musk's filing said.

No hearing has been scheduled on the motion for a restraining order, and it's not clear when the judge will rule.

Continued here:
Musk tells judge that gag order would trample on his First Amendment rights - Ars Technica

An activist group is suing the city of Florence for violating members' freedom of speech and assembly.

"I'm hoping that Florence is a safe space for people to exercise their first amendment rights," said Camille Bennett, the founder of Project Say Something.

PSS is a local nonprofit aimed at fighting racial injustice. The group is suing the city of Florence over the city's response to more than 160 protests that took place in 2020, protesting the death of George Floyd and the Confederate monument in front of the Lauderdale County Courthouse.

"I think our leadership has struggled to accept change and to accept revolution," said Bennett.

In a 30-page lawsuit, PSS claims the city and its police department inconsistently enforced city ordinances, effectively violating the constitutional rights of protestors.

Namely, "a noise ordinance that says whatever is unreasonable you can't do, and then a parade ordinance that requires a permit for parades," explained David Gespass, an attorney representing PSS from the Alabama chapter of the National Lawyers Guild.

The lawsuit argues that the unamplified human voice cannot be regulated with a noise ordinance.

"Particularly for people engaging in First Amendment activity, they want to be heard! And they have a right to be heard," said Gespass.

The lawsuit also states stationary protests shouldn't fall under parade guidelines.

"When the chief says, you know, you're gonna have to pay $360 a day for police protection for a permit, people should not have to pay for protection because they're exercising their rights," said Gespass.

The lawsuit argues both the parade permit and noise ordinance are unconstitutionally vague as written, allowing for the city to subjectively enforce guidelines as they see fit.

"We're asking that we have clear boundaries and that any- and everyone who wants to protest especially if you want to protest for racial justice that you're able to do so peacefully," said Bennett.

WAAY 31 reached out to Florence city officials for comment and received this statement late Tuesday from the office of Mayor Andy Betterton: "With regard to your request for a statement, the city has not been served with a lawsuit like the one you described but typically doesnt discuss pending litigation anyway."

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City of Florence sued over First Amendment violation - WAAY

Wikileaks founder Julian Assange supporters hold placards as they gather outside Westminster Magistrates court in London on Wednesday. Alastair Grant/AP hide caption

Wikileaks founder Julian Assange supporters hold placards as they gather outside Westminster Magistrates court in London on Wednesday.

LONDON A British judge on Wednesday formally approved the extradition of Julian Assange to the United States to face spying charges. The case will now go to Britain's interior minister for a decision, though the WikiLeaks founder still has legal avenues of appeal.

The order, which brings and end to the years'-long extradition battle closer, comes after the U.K. Supreme Court last month refused Assange permission to appeal against a lower court's ruling that he could be extradited.

District Judge Paul Goldspring issued the order in a brief hearing at Westminster Magistrates' Court, as Assange watched by video link from Belmarsh Prison and his supporters rallied outside the courthouse, demanding he be freed.

Home Secretary Priti Patel will now decide whether to grant the extradition.

The move doesn't exhaust the legal options for Assange, who has sought for years to avoid a trial in the U.S. on charges related to WikiLeaks' publication of a huge trove of classified documents more than a decade ago.

His lawyers have four weeks to make submissions to Patel, and can also seek to appeal to the High Court.

Assange lawyer Mark Summers told the court that the legal team had "serious submissions" to make.

The U.S. has asked British authorities to extradite Assange so he can stand trial on 17 charges of espionage and one charge of computer misuse. American prosecutors say Assange unlawfully helped U.S. Army intelligence analyst Chelsea Manning steal classified diplomatic cables and military files that WikiLeaks later published, putting lives at risk.

Supporters and lawyers for Assange, 50, argue that he was acting as a journalist and is entitled to First Amendment protections of freedom of speech for publishing documents that exposed U.S. military wrongdoing in Iraq and Afghanistan. They argue that his case is politically motivated.

A British district court judge had initially rejected a U.S. extradition request on the grounds that Assange was likely to kill himself if held under harsh U.S. prison conditions. U.S. authorities later provided assurances that the WikiLeaks founder wouldn't face the severe treatment that his lawyers said would put his physical and mental health at risk.

In December, the High Court overturned the lower court's decision, saying that the U.S. promises were enough to guarantee that Assange would be treated humanely. The Supreme Court in March rejected Assange's attempt to challenge that ruling.

Assange's lawyers say he could face up to 175 years in jail if he is convicted in the U.S., though American authorities have said the sentence was likely to be much lower than that.

Assange has been held at Britain's high-security Belmarsh Prison in London since 2019, when he was arrested for skipping bail during a separate legal battle. Before that, he spent seven years inside the Ecuadorian Embassy in London to avoid extradition to Sweden to face allegations of rape and sexual assault.

Sweden dropped the sex crimes investigations in November 2019 because so much time had elapsed.

Last month, Assange and his partner Stella Moris married in a prison ceremony.

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Julian Assange is one major step closer to extradition to the U.S. - NPR