Tag: Fifth Circuit

Another Battle Against Silly Tour-Guide Regulations

For the second time this fall, Cato has filed a brief supporting a lawsuit challenging the power of cities to stifle and regulate speech by licensing tour guides—effectively restricting who may lawfully speak to an audience about the city’s history. 

In September, we filed a brief supporting “Segs in the City,” a segway touring company challenging a D.C. law which made it illegal to give tours in Washington, D.C., without completing a licensing process that involves a thorough history exam. Now we’ve filed a brief in the U.S. Court of Appeals for the Fifth Circuit, again joined by First Amendment expert Eugene Volokh, in support of a group of tour guides challenging New Orleans’ licensing scheme. (Both the D.C. and New Orleans guides are represented by our friends at the Institute for Justice.)

Like D.C., New Orleans only licenses guides who can pass a history test. In addition to that blatantly unconstitutional speech restriction, the Big Easy also requires licensees to submit to periodic drug tests. All that just so they can talk about the history and culture of New Orleans without spending five months in prison!

We argue that the licensing regime is a content-based restraint on speech and therefore must pass the strictest judicial scrutiny, so the government needs a compelling reason for it and has no other way of accomplishing the same goal. The law is a content-based speech regulation in that it is (a) triggered by the content of speech, and (b) justified on the basis of the content that it regulates. The Supreme Court has repeatedly held that a law regulating the content of speech—as opposed to its location, timing, or manner—is subject to strict scrutiny. The justifications offered for the licensing law refer to the “sufficient knowledge” of the guides and the accuracy of their speech. That is as much a content-based justification as saying that people need to be protected from hearing “erroneous” political opinions or “controversial” historical theories.

Finally, we argue that tour guides are not members of a “profession,” such as lawyers, doctors, and accountants, which could merit less First Amendment protection in order to protect the public from harm. Unlike those professions, tour guides don’t have intimate relations with clients. Instead, like most businesses, they simply have customers. The government can’t possibly require authors, public lecturers, or documentary filmmakers to get licensed in order to protect the public from “misinformation,” and it has no more basis for licensing tour guides.

The Fifth Circuit will hear argument in Kagan v. City of New Orleans early in the new year.

Casket Case Shows Economic Liberty to Be Alive and Well

Last week, the Institute for Justice scored a resounding victory for the right to earn an honest living in an unlikely case that pitted woodworking monks against the Louisiana State Board of Embalmers and Funeral Directors.  The New Orleans-based U.S. Court of Appeals for the Fifth Circuit – where I clerked – ruled in a final, unanimous decision (including one Obama-appointed judge) that Louisiana violated the St. Joseph Abbey monks’ economic liberty when it forbade them from selling the caskets they make to support their religious order.

Significantly, the court ruled that the Constitution doesn’t allow the government to enact laws simply to shield industry cartels from honest competition.  Although IJ was already assured of victory, given that Fifth Circuit had issued a divided preliminary opinion in October, that ruling left open some tricky questions that this latest decision definitively settled.  

Last Wednesday’s ruling makes clear that laws having no purpose but to enrich certain protected interests are unconstitutional, using reasoning that should be a model for courts across the country.  

Louisiana now has 90 days to seek review in the U.S. Supreme Court – which supporters of economic liberty should welcome because IJ’s previous litigation created a split in the federal lower courts that can only be resolved, for the nation as a whole, by the Supreme Court. 

For more on St. Joseph Abbey v. Castille, see IJ’s case page and this Wall Street Journal op-ed by IJ’s Chip Mellor and Jeff Rowes. And if you’re a law student interested in using your legal skills to promote liberty this summer, you should apply to IJ’s epic public interest boot camp (of which I’m a graduate, though in my day there wasn’t any skydiving or aikido).

The First Amendment Protects Students’ Rights to Speak on Religious Subjects

If the First Amendment means anything, then school officials cannot prohibit students from handing out gifts with Christmas messages due to the religious content of those messages. Nonetheless, the Fifth Circuit held en banc that student speech rights are not “clearly established,” and that, therefore, two Plano, Texas officials could invoke qualified immunity to shield themselves from liability for doing so.

Yesterday Cato filed an amicus brief supporting the students’ request that the Supreme Court hear their case—our third brief in this long-running saga. We argue that educators have fair warning that viewpoint-based discrimination against student speech violates the First Amendment and thus may not invoke qualified immunity.

While the Fifth Circuit held that a constitutional right must have previously been defined with a “high degree of particularity” in a case that is “specific[ally] and factually analogous” to be clearly established, the Supreme Court has repeatedly said that neither “fundamentally similar” nor “materially similar” cases are required and that general statements of law can give fair warning. Indeed, if the Fifth Circuit’s qualified-immunity standard is upheld, it will be so difficult to establish fair warning for unconstitutional actions that qualified immunity will cease to be “qualified.”

Student speech rights were clearly established by the foundational student-rights case of Tinker v. Des Moines School District (1969), wherein the Court held that student speech cannot be suppressed unless the speech will “materially and substantially disrupt the work and discipline of the school,” subject to limited exceptions. Such exceptions include lewd or vulgar speech, or speech that may reasonably be viewed as advocating unlawful drug use. Certainly the student speech at issue here, which included Christmas greetings written on candy canes, and pencils and other small gifts with messages like “Jesus loves me, this I know, for the Bible tells me so,” does not fall under those exceptions.

We further argue that the same standard for determining whether a law is clearly established should determine whether a court can look to nonbinding precedent; if Supreme Court and relevant-circuit precedent is on point, courts should not look to authority from other jurisdictions. These standards maintain the proper balance between providing officials with fair notice of behavior that could result in civil liability and ensuring that individuals have legal recourse when their rights are violated.

The Supreme Court will decide later this winter whether to take the case, Morgan v. Swanson, and hear argument in the fall.

Thanks to Cato legal associate Anastasia Killian for her help with this post, and with our brief.

The Longhorn Mismatch: Too Much Racial Preference, Too Little Success

Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education.  (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)

The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students.  The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity.  Judge Emilio Garza wrote an electrifying concurrence – starting at page 58 here – agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause. 

The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones.  (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)

Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.

Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.

As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs – that they benefit minorities – and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.

Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.

The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.

Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension.  If the university’s response arrives by January, the case – if the Supreme Court takes it – should be on schedule for argument and decision this term.  For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.

Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.

Supreme Court Should Uphold Incentives to Sue the Government

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Cato, joining the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech, filed a brief supporting a request that the Supreme Court reverse the Fifth Circuit and making three points:

First, by awarding the defendant fees for the entire suit based on the dismissal of one claim, the Fifth Circuit’s decision imposes prohibitive costs on the enforcement of civil rights.

Second, the exceptional timing of the fee award in this case — before resolution of the plaintiff’s related state-law claims — creates a dangerous precedent that threatens to derail civil rights actions. By prematurely deeming a plaintiff’s suit frivolous and ordering the plaintiff to pay the defendant’s fees before the conclusion of the litigation, the Fifth Circuit’s rule imposes financial penalties that would shut down legitimate lawsuits midstream.

Third, the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court. Otherwise, the threat of a fee award will improperly burden the plaintiff’s decision to bring a federal claim in state court at all — contrary to the law’s purpose here.

In addition to reversing the judgment below, the Court should reinforce that a mid-litigation fee award is improper when a plaintiff voluntarily drops a federal claim in order to return to state court.  The Court will hear Fox v. Vice on March 22, with a decision expected in June.

Recusal Rules Impact Environmental (and Other) Litigation

Two weeks ago I blogged about the dismissal of the Katrina-related global warming case because half the judges on the Fifth Circuit were recused for having financial interests in the energy companies and utilities (which the plaintiffs chose specifically to gain recusals but mis-timed their strategy).  Well, now it seems that many judges on the Gulf Coast are recusing themselves from the nascent (and future) oil spill suits, again because they own shares of BP, Transocean, and the other companies involved.  Indeed, over half the federal district judges in the affected states – Texas, Louisiana, Mississippi, Alabama, and Florida – will not be participating in these cases, leading to calls to appoint judges from elsewhere in the country to handle them.

That’s ridiculous!  Owning a few hundred or thousand dollars worth of shares of stock is not enough to change the way a judge will behave, particularly when the public knows which judge owns which stock.  If we cannot agree that such purported “conflicts” don’t really show an appearance of impropriety – if we really doubt the integrity of our judiciary to such an extent – then we might as well throw out the ethics rules, throw up our hands, and declare the country ungovernable.  (I’m reminded of the Carrie Underwood song, “Jesus Take the Wheel.”)

Moreover, the financial conflict rules are murky.  As this AP story discusses, ”a judge does not have to step aside if the investments are part of a mutual fund over which they have no management control. Mere ties to companies or entities in the same industry, no matter how extensive, also don’t require disqualification.”  So here we’re valuing form over substance.

Look, maybe this is just a pet peeve of mine – it’s not an ideological issue one way or the other – but I think you just have to apply the “reasonable skeptic” standard.  Every judge is human and has his various biases.  It’s one thing to recuse if counsel for one of the parties is the judge’s spouse or child, or if half the judge’s wealth is invested in one of the parties.  But dinky little “abundance of caution” recusals cost the justice system more in administrative hassle, sunk attorney fees, and other wastes of time and money than they benefit it in increased integrity.

As for the oil spill litigation, the U.S. Judicial Panel on Multidistrict Litigation – which looks at complex cases on similar issues brought in disparate venues – meets July 29 in Boise, Idaho (of all places), to hear arguments on consolidation.  In light of the aforementioned recusals, the Louisiana cases may well be sent to Alabama, Mississippi, or South Florida – or a federal courthouse near you!

Global Warming Plaintiffs Hoisted on Their Own Petard

We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief.  When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum – a late judicial recusal left only 8 of 16 judges available to hear the appeal – and was figuring out what to do. 

Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion – the one that allowed the tendentious causation claims to proceed – remained vacated.  The money quote: “In sum, a court without a quorum cannot conduct judicial business… .  Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.”  This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review.  Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5-3 vote).

The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges.  This clever legerdemain successfully removed seven judges, but that left a quorum of nine.  Of course, had the late-recusing eighth, Jennifer Elrod – who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place.  We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.