In 25 days, the justices will meet for their “long conference” – their first regularly scheduled conference since July, at which they will consider the petitions for review (roughly 1,800 of them) that have accumulated since the justices began their summer recess. Over the next few weeks, I will take a look at some of the interesting petitions slated for consideration on September 29.
Two years ago, in Janus v. American Federation of State, County and Municipal Employees, the Supreme Court ruled that public employees who are represented by a union to which they do not belong cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to everyone. In a lawsuit filed shortly after the court issued its decision in Janus, a professor at the University of Maine at Machias has asked the justices to weigh in on the constitutionality of what he characterizes as a “striking anomaly” after Janus: the state’s designation of a union to represent him and speak on his behalf, despite his objections to its “positions and advocacy on issues ranging from fiscal policy to university governance.”
The professor, Jonathan Reisman, stressed that the Supreme Court in Janus observed that the appointment of a union to represent public employees would be “a significant impingement on” the freedom of association “that would not be tolerated in other contexts.” “And if Janus stands for anything,” Reisman continued, “it is that there is no labor-relations exception to the First Amendment.” Reisman also warned the justices that unless they take up this question soon, “workers, municipalities, states, and the lower courts will continue to devote significant resources to litigation that this Court can and should resolve in one fell swoop.”
The state and the university pushed back, arguing that the court’s decision in Janus was “limited to mandatory agency fees.” Because the Supreme Court’s 1984 ruling in Minnesota State Board for Community Colleges v. Knight, they said, rejected a challenge to the constitutionality of Minnesota’s system of exclusive representation for college professors, a law giving the union exclusive rights to represent Reisman does not, standing alone, violate his First Amendment rights.
In Farrar v. Williams, a Colorado man serving a life sentence for sexually abusing his stepdaughter has asked the justices to rule on whether his conviction can stand when it is based on perjured testimony, but prosecutors did not know at the time that the testimony was false. Testimony from Charles Farrar’s stepdaughter, who was then 15 years old, that Farrar and her mother had abused her over a four-year-period was the only direct evidence against him. A year after Farrar’s trial, the stepdaughter admitted in an affidavit that her testimony was false; she wrote that she lied about the sexual abuse because she wanted to live with her grandparents instead. Farrar asked the federal courts for post-conviction relief, arguing that his conviction was fundamentally unfair because it was based on the stepdaughter’s false testimony.
The U.S. Court of Appeals for the 10th Circuit rejected his argument, reasoning that a conviction based on perjured testimony does not violate the Constitution unless prosecutors knew that the testimony was false when they used it at trial. Farrar urged the justices to resolve this question, pointing to a division among 14 federal courts of appeals and state supreme courts, but the state countered that Farrar’s case does not actually present this question because the state trial court determined that his evidence of perjury was not credible. Under the federal laws governing post-conviction review, the state continued, that determination is considered correct unless Farrar has clear and convincing evidence to overcome it – which, the state contended, he does not.
In Living Essentials LLC v. Washington, the makers of a popular energy drink have asked the justices to decide whether the “prior substantiation” doctrine, which allows a commercial business to be held liable if it does not have adequate support for its factual claims before it makes them in an advertisement, even if the claims are never proven false, violates the First Amendment. The dispute before the Supreme Court began when the state of Washington sued Living Essentials LLC, which makes the energy drink 5-hour ENERGY, charging that its claims that the product contained ingredients that “work in concert” to “provide a feeling of alertness and energy that lasts for hours” were deceptive.
The trial court ruled for the state, fined Living Essentials more than $2 million and banned the company from making similar claims going forward. It concluded that although the company’s claims were “plausible,” they were only “a hypothesis” and “not an established scientific fact.” A state appeals court upheld that decision, rejecting Living Essentials’ argument that holding the company liable without making the state prove that the claims were false violated the First Amendment.
In its petition for review, Living Essentials stressed that the ruling by the state appeals court conflicts with the Supreme Court’s decisions interpreting the First Amendment. The company urged the justices, if necessary, to overrule their 1980 decision in Central Hudson Gas & Electric Corp. v. Public Service Commission, which allows the government to regulate commercial speech when it has a substantial interest and the regulation both “directly advances” that interest and is “not more extensive than necessary to serve that interest.”
The state of Washington countered that there is no reason for the Supreme Court to grant Living Essentials’ petition. It stressed that the Central Hudson test “does not apply to false, misleading, or deceptive advertisements” like the one at issue in this case because the First Amendment “has never protected” them “in the first place.” The rule that Living Essentials advocates, the state concluded, “would undermine First Amendment values and public confidence in the accuracy of advertising claims.”
In Austin v. Illinois, the justices have been asked to review the constitutionality of Illinois’ “revenge porn” law. The defendant in the case is Bethany Austin, who ended her engagement with her fiancé, Matthew, after she learned that he had an affair with their neighbor, Elizabeth. When Matthew told the couple’s friends and family that the pair had broken up because Austin was “crazy” and wasn’t cooking or cleaning anymore, Austin fought back. She sent a few friends and family a letter, attaching texts between Matthew and Elizabeth and nude photos that Elizabeth had sent Matthew at a cloud account that Austin and Matthew shared.
After Austin was charged with violating the state’s revenge porn law, she argued that the law was unconstitutional. But the Illinois Supreme Court disagreed and rejected her First Amendment challenge, applying intermediate scrutiny, rather than the most stringent form of review (known as strict scrutiny). Emphasizing that Austin is “not the type of person that revenge porn laws were designed to stop,” she urged the justices to grant review, telling them that if the Illinois Supreme Court decision is allowed to stand, Austin “will not be the last person to get caught up by such draconian laws, which will threaten broad swaths of online communication.”
The state urged the justices to deny review, telling them that there is no division among the state supreme courts. The only other state supreme court to address the question presented by Austin’s petition, the state contended, “engaged in a very similar analysis to the Illinois Supreme Court to uphold the statute.” But the statute is in any event constitutional under any standard, the state continued, because it promotes the state’s interest in “protecting all victims of this conduct.”
In Browder v. Nehad, the justices have been asked to return to a familiar topic: qualified immunity for law enforcement officials. The issue comes to the court in the case of San Diego police officer Neal Browder, who shot and killed Fridoon Nehad in April 2015. Nehad, who had a few minutes before told a bookstore clerk that he was going to hurt or kill people with the five-inch knife he was carrying, approached Browder when Browder got out of his patrol car in an alley near the bookstore. Browder believed that Nehad was carrying an knife and was going to stab him, prompting Browder to shoot Nehad; Browder later learned that the metallic and shiny object in Nehad’s hand was actually a pen.
Nehad’s parents and his estate sued Browder and the San Diego police department in federal court, claiming that Browder had violated Nehad’s civil rights. The district court concluded that Browder was entitled to qualified immunity, but the U.S. Court of Appeals for the 9th Circuit reversed. The appeals court ruled that it was clearly established by existing cases that Browder’s use of deadly force was unconstitutional. Browder then asked the Supreme Court to review his case, telling them that the court of appeals was wrong because it defined the right at the heart of the dispute “in overly general terms,” focusing on “whether an officer can use deadly force against an unarmed person who poses little to no risk of danger to an officer or others.” That definition, Browder asserted, “ignores both the facts of this case and this Court’s repeated admonitions.”
Nehad’s family countered that the 9th Circuit had “closely adhered” to the Supreme Court’s cases. It “should have been obvious to Browder,” they wrote, that “he could not use deadly force to kill an unarmed person who posed no threat of serious injury to Browder or anyone else.”
In Evans v. Sandy City, Utah, the justices have been asked to take up a challenge to a Utah city’s ordinance that makes it illegal to sit or stand on unpaved or narrow medians in the city. The lawsuit was filed by a homeless man, Steve Evans, who solicits money from the medians and argued that the ordinance violates the First Amendment. The U.S. Court of Appeals for the 10th Circuit rejected that argument. It concluded that the ordinance was sufficiently narrow because it only applied to medians “where it is unsafe to sit or stand.” It didn’t matter, the 10th Circuit continued, whether there were other options that were less restrictive.
Evans urged the justices to review two aspects of the 10th Circuit’s ruling – both of which, he contended, conflict with the holdings of other courts of appeals. First, he suggested, the justices should weigh in on whether the government must show that it tried to use another, less restrictive alternative before banning everyone from the median. Second, he continued, the court should address whether the government can close down areas – like medians, parks and sidewalks – that are normally open for political speech if that is the only way to ensure that no accidents will occur in those places.
The city characterized the real question before the justices as whether the city must try all other options to promote safety before banning speakers from the medians. The Supreme Court, the city stressed, has never imposed such a requirement. Moreover, the city added, the ordinance is narrowly tailored: It only applies to unpaved medians and those that are less than 36 inches wide, rather than to all medians. But in any event, the city concluded, the case is a poor one for the justices to take up because of the risk that any decision could be purely advisory. The 10th Circuit’s ruling, the city explained, rested on the assumption that medians are normally open for public speech, but it didn’t decide that question, and Evans has not asked the justices to resolve that question either.
In Dailey v. Florida, a death-row inmate has asked the justices to weigh in on issues relating to their decisions in Brady v. Maryland, the landmark decision holding that prosecutors must disclose any evidence that might clear the defendant, and Giglio v. United States, holding that prosecutors must also disclose any evidence that could be used to impeach prosecution witnesses. James Dailey was convicted and sentenced to death for the 1985 murder of 14-year-old Shelly Boggio. Prosecutors relied heavily on testimony by three jailhouse informants, who told the jury that Dailey had confessed to the crime.
Dailey has asked the Supreme Court to review a ruling by the Florida Supreme Court, which concluded that two different pieces of evidence could not be considered: testimony from a former prosecutor, who said he had been told by law enforcement officials that Dailey’s co-defendant, Jack Pearcy, had confessed to the murder; and evidence from Edward Coleman, who was in jail with Dailey and Pearcy, that the lead investigator in the case had promised to reduce his charges if he incriminated Dailey. Dailey argued that the state supreme court’s decision was so clearly wrong that the Supreme Court should reverse without briefing or oral argument.
Florida told the court that it lacks the power to review Dailey’s case at all because his claim is procedurally barred under Florida law: The Florida Supreme Court, the state explained, ruled that the evidence on which Dailey seeks to rely is not “newly discovered,” and therefore his claims under Brady and Giglio are too late. Moreover, the state continued, the state supreme court’s ruling is correct. Dailey has not established that the failure to turn over the evidence at the heart of this case violated Brady or Gigio, and any event Dailey had not shown that having the evidence would have made a difference in his case.