In the Supreme Court of the United States 

REYNALDO GONZALEZ, ET AL., Petitioners,

v.

GOOGLE LLC. 

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit 

Brief for Reason Foundation as Amicus Curiae supporting respondent

SUMMARY OF ARGUMENT

I. For nearly three decades, Section 230 has served as the backbone of the Internet, precisely as Congress correctly anticipated and intended. The legislatively enacted congressional findings and purpose favor an expansive reading of Section 230’s protections in the event of any uncertainty or perceived ambiguity in the language of Section 230(c)(1).

A. Section 230’s benefits were by design, even if Congress could not have predicted every detail—or challenge—of a growing Internet. What Congress did know is that, for the Internet to grow, it had to be left alone without fear of the “litigation minefield,” Resp. Br. 19, that would cripple its expansion in its infancy if the providers and users of interactive computer services could be found liable for the content created by others. Congress thus enacted Section 230 with a list of policy statements that show what it intended and expected the statute to do: protect platforms and users from liability for the speech of others and promote the growth and use of interactive computer services.

Congress explained that the goal of Section 230 is to “promote the continued development of the Internet” by, among other things, “encourag[ing] the development of technologies which maximize user control over what information is received by” those “who use the Internet and other interactive computer services.” Id. (b)(1), (3). Section 230 has done that. Congress also expressed the importance of “preserv[ing]the vibrant and competitive free market that present.ly exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” Id. (b)(2) (emphasis added). Section 230 has created that world, too.

Those policy statements are not mere pieces of legislative history entered into the Congressional Record by opportunistic politicians or their staffers—to the contrary, they are the product of bicameralism and presentment just like any other duly enacted legislation. And such statements are entitled controlling weight regarding what policy considerations might potentially influence the interpretation of Section 230. Whether Section 230 creates good policy is not a question for this Court to decide. That question remains where it was in 1996—with Congress.

B. Even years after Congress’s legislative findings and purpose, Section 230 has overwhelmingly fulfilled such legislative predictions and goals. By providing immunity from liability for the content posted by others, it has allowed for the development of new technologies that make it easier for everyone to find information online, to organize and to let others help organize the information they receive, and to associate both directly and indirectly with people around the world sharing common interests. These advances in technology have also led to the development of all manner of social media sites, including video-based platforms, dating apps, and even improved traditional chatrooms providing users many of the same organization tools as providers themselves.

The improved ability to find and organize information online is only one of the many benefits of Section 230. It also has led to an exponential growth in the amount of speech online. As providers have innovated and users have enthusiastically participated in online speech free from “the “specter of liability,” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997), interactive computer services have made it easier for ideas to spread than ever before in human history. Through retweets and other user engagements, the views and content created by even the poorest Americans can spread around the country and world in a way that wouldn’t have been possible just twenty years ago.

Other benefits from Section 230 abound. The economic benefits to innovators, providers, users, and the economy as a whole have been tremendous. It has facilitated the gig economy by allowing individuals and small businesses to flourish on websites provided by bigger platforms. It has also allowed consumers to directly review products and other services, make those reviews readily available online for the next consumer, and pass along or comment upon reviews by others, thus democratizing the marketplace of products and services as well as the marketplace of ideas. Thus, insofar as such practical considerations matter to the interpretation of Section 230(c)(1), the findings and purposes of Congress are not only controlling, they are right.

II. The language of Section 230 both reflects such Congressional policy and confirms that Respondent should prevail in this case.

A. An “interactive computer service” “provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2). “Interactive computer services” expressly include “access software providers,” which—as relevant here—are providers of software or tools that can “pick, choose, analyze, or digest,” “transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.” Id. (f)(2), (4)(B), (C). The providers of such services and their users can both create their own information content and can organize, transmit, and provide access to information content provided by others.

B. YouTube’s algorithm, which organizes and reorganizes the content uploaded to YouTube by others, thus performs a function which Congress expressly included in the definition of an interactive computer service. Indeed, as both a provider and user of such software, Respondent falls squarely within the class protected by Section 230(c)(1). Insofar as Petitioners are seeking to hold Google liable for the consequences of having presented or organized the “information provided by another,” rather than for creating and publishing Google’s own information content, Section 230(c)(1) bars such liability.

To the extent any given algorithm or other organizational policy or choice might be said to create Google’s own “content,” the further question becomes the precise parameters of such content as distinguished from the content of others. That distinction helps clarify that even where an algorithm or other organizational action or policy itself might create some information content (appending a warning label for example), a user or provider may only be held responsible for that information alone, and not the underlying information “provided by another.” Alternatively, if YouTube or any other user of its service were to expressly adopt or endorse the information content of another as its own, such adopted content may well fall outside of Section 230’s protection.

But merely identifying, organizing, or even recommending the content of another is a far cry from adopting it as your own. YouTube’s algorithm, for example, analyzes different users’ activity and viewing behavior to predict what that user might find interesting and to organize further information content provided by others according to such predictions. Though the algorithm’s analysis and predictions are more automated and sophisticated than manual efforts to organize or recommend content in a manner appealing to users, it remains fundamentally the same as the manual choices exercised by chatroom moderators, bloggers, and indeed, any individual user who selects, reposts, “likes,” or otherwise passes along the information content of others in a way such user believes might be interesting or appealing to her followers and potential followers. Such organizational effort by both providers and users of interactive computer services is precisely what Congress anticipated and intended to encourage via Section 230, and the text provides broad protection reflecting that purpose.

The post Amicus Brief: Gonzalez v. Google appeared first on Reason Foundation.

ASSOCIATION DES ÉLEVEURS DE CANARDS ET D’OIES DU QUÉBEC; HVFG LLC; AND SEAN “HOT” CHANEY, Petitioners, 

v. 

ROB BONTA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF CALIFORNIA,  Respondent. 

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit 

Brief of Amici Curiae Reason Foundation and Manhattan Institute For Policy Research in Support of Petitioners 

Summary of the Argument

Restrictions on the free flow of goods between states are exactly the sort of interstate trade barriers that the federal Constitution was intended to prohibit. Section 25982 of the California Health and Safety Code prohibits the sale in California of a wholesome food ingredient in contravention of the PPIA and regulates extraterritorial conduct in violation of the dormant Commerce Clause. The law also poses a grave challenge to the future of food and agriculture in this country. The Ninth Circuit’s upholding of § 25982 could undermine our national markets in food and decide ultimately whether all future meat production will be outlawed in America. For these reasons, this Court should grant the petition for certiorari. 

Full Amicus Brief: Association Des Éleveurs De Canards Et D’oies Du Québec v. Rob Bonta

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ARIYAN INCORPORATED, DOING BUSINESS AS DISCOUNT CORNER, ET AL., Petitioners

v.

SEWERAGE & WATER BOARD OF NEW ORLEANS, ET AL., Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Brief of Amici Curiae Reason Foundation, Southeastern Legal Foundation, National Association Of Reversionary Property Owners, and Professor James W. Ely, Jr.,

Question Presented

Does the Fifth Amendment’s self-executing command that the government justly compensate an owner when the government takes private property mean the government must promptly pay the owner or does the owner’s right to compensation depend upon the legislature appropriating funds to compensate the owner?

Introduction

The Sewerage & Water Board of New Orleans (Sewerage Board) took private property from seventy owners. The Sewerage Board did not pay the owners but forced the owners to go to court and sue for compensation. The owners won. Two Louisiana state courts held the Sewerage Board took these owners’ private property and must pay the owners $10.5 million in compensation. Ariyan, Inc. v. Sewerage & Water Board of New Orleans, 29 F.4th 226, 228 (5th Cir. 2022). There is no dispute about this. But, instead of paying the owners, the Sewerage Board said, “sorry, we didn’t appropriate the money.”

The owners went to federal court to enforce their Fifth Amendment right to compensation. But the district court dismissed the owners’ claim, and a panel of the Fifth Circuit affirmed, contrary to this Court’s holding in Knick v. Township of Scott. The Fifth Circuit panel wrongly supposed the Fifth Amendment guarantee of “just compensation” depends upon legislative grace. The Fifth Circuit wrongly premised its opinion upon a misreading of this Court’s decision in Folsom v. City of New Orleans, 109 U.S. 285 (1883), condemning these owners to a “Folsom Prison” in which the government may take their property but never pay.

The post Amicus Brief: Ariyan Incorporated v. Sewerage & Water Board of New Orleans appeared first on Reason Foundation.

In The Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner

v.

PRESIDENT & FELLOWS OF HARVARD COLL., Respondent

STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner

v.

UNIVERSITY OF NORTH CAROLINA, et al., Respondents.

On Writs of Certiorari to the U.S. Courts of Appeals of the First and Fourth Circuits

Brief Amicus Curiae of Pacific Legal Foundation, Center For Equal Opportunity, Reason Foundation, Chinese American Citizens Alliance – Greater New York, Yi Fang Chen, Coalition For Tj, Committee For Justice, Ward Connerly, And Erfa Pac in Support of Petitioner

Introduction

America was built on a principle. “All men are created equal”—each endowed with “unalienable Rights” such as “Life, Liberty, and the pursuit of Happiness.” Decl. of Independence. The Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act safeguard this important principle. They ensure not equality of outcomes, but equality of liberty. As Senator Jacob Howard from Michigan, in a speech introducing the Fourteenth Amendment to the United States Senate in 1866 put it, the Amendment “establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard). Equal protection of the laws is an individual right. It stands in stark contrast to equality of outcomes among groups—which has no basis in the Constitution. As the late Justice Scalia proclaimed, “individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race.” Adarand Constructors, 515 U.S. at 239 (Scalia, J., concurring). “That concept is alien to the Constitution’s focus upon the individual and its rejection of dispositions based on race.” Id. (cleaned up). “In the eyes of government, we are just one race here. It is American.” Id. In other words, we are all individuals who share a universal bond. By virtue of our humanity, we are entitled to pursue happiness free from arbitrary or onerous government encumbrances. 

This case involves a cornerstone of opportunity: Education. Harvard University is regarded by many as the best university in the world. The school has produced several U.S. presidents, several corporate CEOs, and countless judges—including current and former justices of the Supreme Court of the United States. Moreover, Harvard touts among its alumni nearly two hundred billionaires, dozens of Nobel laureates, and over three hundred Rhodes Scholars.

The University of North Carolina is among the best public universities in the world. Well-known Tar Heels include a president (James Polk), dozens of business leaders, and several professional athletes including, of course, Michael Jordan. 

Both Harvard and UNC use racial preferences in admissions. Harvard admissions officers use summaries containing demographic information throughout the admissions process. Harvard Pet. App. 24. These “one-pagers” contain racial statistics and are “periodically shared with the full admissions committee” in part “to ensure that there is not a dramatic drop-off in applicants with certain characteristics—including race—from year to year.” Id. Similarly, every applicant to UNC must complete a common application, UNC Pet. App. 167, which allows the applicant to identify as a member of a racial or ethnic group, such as white, black, Hispanic, or Asian. UNC’s admissions policy favors members of underrepresented minority groups, which is defined as any group “whose percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina.” UNC Pet. App. 15 n.7. For more than three decades, UNC has considered “students identifying themselves as African American or [B]lack; American Indian or Alaska Native; or Hispanic, Latino, or Latina” as underrepresented minorities. Id.; see also UNC Pet. App. 4 n.2 (referring to students who self-identify as members of those groups as “students of color”).

his Court should put an end to the race-based component of the universities’ admissions policies for three reasons. First, racial balancing is pernicious. It makes no difference whether such balancing comes in the form of a candid acknowledgement on the part of the universities that they are engaging in such practices or are instead implemented under the guise of pursuing diversity. Either way, the practice is antithetical to the principle of equality before the law. Second, as many of the amici have experienced first-hand, the pernicious practice of racial balancing has spread to K-12 education, where it is now depriving children of spots at some of the best public schools in the nation solely because of their race. Third, the constitutional path toward advancing opportunity for all is not creating racial entitlements, but tearing down obstacles to opportunity, such as unnecessary and burdensome occupational licensing laws, the public-school monopoly, and unlawful housing regulations. Thus, this Court should enhance equality and opportunity for all Americans by strongly protecting all of their civil rights, including the right to equality before the law, the right to earn a living, and the right to property. The judgments below should be reversed. 

The post Students for Fair Admissions v. Presidents & Fellows of Harvard appeared first on Reason Foundation.

SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee,

v.

BARRY D. ROMERIL, Defendant-Appellant,

PAUL ALLAIRE, G. RICHARD THOMAN, PHILIP D. FISHBACH, DANIEL S. MARCHIBRODA, AND GREGORY B. TAYLER, Defendants.

On Appeal from the United States District Court for the Southern District of New York No. 03-cv-4087-DLC; Hon. Denise L. Cote

Brief for Amicus Curiae The Institute for Free Speech, Competitive Enterprise Institue, Reason Foundation, and Rodney Smolla in Support of Defendant-Appellant’s Petition for Rehearing or Rehearing En Banc

Introduction

The condition that the Securities & Exchange Commission imposed on Barry Romeril’s settlement of its claims infringes on the First Amendment rights of all who wish to hear Romeril’s story. Those persons were not parties to the proceedings below and had no opportunity to oppose imposition of that condition on the settlement. This Court should rehear this case en banc because the panel decision failed to consider this point and departs from prior decisions of this Court, other Circuit Courts of Appeals, and the Supreme Court.

Full Amicus Brief: SEC v. Romeril

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TONY K. McDONALD, et al., Petitioners,

v.

SYLVIA BORUNDA FIRTH, et al., Respondents,

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Brief Amicus Curiae of Pacific Legal Foundation, Cato Institute, Atlantic Legal Foundation, and Reason Foundation in Support Of Petitioners

Introduction and Summary of Reasons to Grant the Petition

Petitioners are attorneys licensed to practice in Texas. As required by state law, they are members and pay annual dues and fees to the State Bar of Texas as a condition of practicing law. Tex. Gov’t Code § 81.051(b) (membership requirement); id. § 81.054 (dues requirement); id. § 81.054(j) (legal services fee applicable to some licensed attorneys); App. 4. State law permits the State Bar of Texas to engage in political and ideological speech through lobbying efforts, support of affinity groups such as sections and local bar associations, communicative forums, and publications distributed to the entire membership. App. 3–5, 9. The authorization permits speech related to “the administration of justice,” App. 3, or that furthers the “purposes, expressed or implied,” of the State Bar Act. App. 6. Paraphrasing the statutory list of authorized activities, the State Bar of Texas defines its mission broadly as

to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law, and promote diversity in the administration of justice and the practice of law.

This Court has to date assumed that that integrated, mandatory bar associations efficiently, effectively, and (for the most part) non-controversially manage the core functions related to regulation of the legal profession. See Lathrop v. Donohue, 367 U.S. 820, 843 (1961); Keller, 496 U.S. at 5, 13. This assumption was reasonable in light of the fact that the Keller petitioners conceded that Lathrop was controlling on the constitutionality of the integrated bar, eliminating any need for the Court to consider that question in 1990. However, the history of mandatory bar associations since Keller demonstrates that the assumption now is unwarranted and should be reconsidered in light of Janus. 

State bar associations—Texas’s being no exception—perceive their role as general guardians of the legal system and often extend their reach into political and ideological activities while couching their involvement under innocuous-sounding phrases. App. 3–4. Yet virtually all matters involving the legal system, occupational governance and public policy are inherently and “overwhelmingly” political “matters of great public concern” because they involve the allocation of public money and collateral policy matters. See Janus, 138 S. Ct. at 2475–77, 2480. Ideological activities extend even further to social and cultural concerns. Given the sheer breadth of such political and ideological activities, many attorneys have abundant reasons to resent subsidizing mandatory bar associations, just as public employees may not want to subsidize public employee unions. 

Overruling Abood, Janus held that laws requiring non-union members to pay public-sector union fees are subject at least to “exacting scrutiny.” 138 S. Ct. at 2465. Keller relied on established clear parallels between public sector unions and state bar associations when it held that attorneys regulated under state law are subject to “the same constitutional rule” that applies to public employees. 496 U.S. at 13. Therefore, subjecting mandatory bar associations to “the same constitutional rule” as public sector unions now means subjecting them to exacting scrutiny that reveals unjustifiable violations of attorneys’ First Amendment rights. This Court should grant the petition and direct federal courts to review compelled subsidies for bar association speech under exacting scrutiny regardless of germaneness.

Full Amicus Brief: McDonald v. Firth

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STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner,

v.

UNIVERSITY OF NORTH CAROLINA, et al., Respondents.

On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Fourth Circuit

Brief Amicus Curiae of Pacific Legal Foundation, Center for Equal Opportunity, Reason Foundation, Chinese American Citizens Alliance – Greater New York, Yi Fang Chen, Coalition For Tj, and Project 21 in Support Of Petitioner

Introduction and Summary of Argument

“In the eyes of government, we are just one race here. It is American.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring). Both the Constitution and the Civil Rights Act of 1964 enshrine the important principle that we are equal under the law. The Equal Protection Clause prohibits the government from denying “any person . . . the equal protection of the laws.” U.S. Const. amend. XIV, cl. 1. Title VI extends that prohibition to private universities that receive federal financial assistance. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.”).

The University of North Carolina is a public institution that receives federal funds.2 See App. 144 & n.46. But in making race a factor in its admissions decisions, the University runs afoul of both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The protections of Title VI and the Equal Protection Clause are coextensive, Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003), and ought to forbid racial discrimination of any kind.

Yet UNC uses race in admissions decisions. See App. 195 (UNC application readers are trained to consider “an applicant’s self-disclosed race or ethnicity” as a factor in its “holistic review” of the applicant). According to the University’s expert, race is determinative “for 1.2% for in-state students and 5.1% for out-of-state students.” App. 112.

The district court upheld this policy. The court concluded that the “small percentage of decisions” based on race was consistent with this Court’s equal protection jurisprudence. Yet the district court’s flawed decision rested upon an outlier in that jurisprudence: Grutter v. Bollinger, 539 U.S. 306 (2003).

This petition, like the petition in Students for Fair Admissions, Inc. v. President and Fellows of Harvard University, No. 20-1199, presents the ideal vehicle to overrule Grutter. See App. 188 (alleging, in Count III of Petitioner’s complaint, that UNC’s admissions process is illegal because it “uses race as a factor in admissions”); App. 189 (granting judgment on the pleadings against Plaintiff on Count III because it was foreclosed by Supreme Court precedent). From the day on which it was decided, Grutter has been “grievously wrong.” Ramos v. Louisiana, 140 S. Ct. 1390, 1414–15 (2020) (Kavanaugh, J., concurring in part). The Equal Protection Clause contains a categorical statement: government shall not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, cl. 1. Yet the thrust of Grutter is that “not every decision influenced by race is equally objectionable.” 539 U.S. at 327. Grutter expressly endorsed racial preferences—so long as universities administer them in a “flexible, nonmechanical way.” Id. at 334. But the Equal Protection Clause and Title VI prohibit racial discrimination of any kind—flexible or rigid; mechanical or not.

Grutter’s troubles do not end there. In endorsing racial preferences in University admissions, the Grutter Court endorsed a novel interest: “obtaining the educational benefits that flow from a diverse student body.” Id. at 343; App. 184 (concluding that UNC is entitled to “judicial deference” for its decision to pursue and attain “the educational benefits of diversity”). This diversity rationale is both amorphous and unsound. It rests upon arbitrary racial classifications. The term “Hispanic,” for instance, does not describe a common background, designate a common language, or even describe gross physical appearance. See Peter Wood, Diversity: The Invention of a Concept 25 (2003). And “Asians” make up roughly 60 percent of the world’s population and encompass people of Chinese, Indian, Filipino, and many more backgrounds. David E. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 182–83 (2021). Although state-sponsored treatment of individuals as members of arbitrary racial groups is reason enough to overrule Grutter, the decision’s disastrous consequences provide additional support to do so. As explained below, Grutter’s diversity rationale perpetuates harmful stereotypes against Asian applicants. Grutter is also unworkable. Universities across the Nation treat the decision as an unqualified endorsement of racial preferences. Such preferences not only deny students their right to equal justice before the law, but harm the very students they purportedly benefit. See generally Richard H. Sander, A Systemic Analysis of Affirmative Action in Law Schools, 57 Stan. L. Rev. 367 (2004) (students who received racial preferences were less likely to pass the bar exam). This Court should grant the petition and overrule Grutter.

Full Amicus Brief: Students for Fair Admissions, Inc. v. University of North Carolina

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In the Supreme Court of the United States

JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC. AND WILLIAM OSMULSKI, Petitioners,

v.

TONY EVERS, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF WISCONSIN, Respondent.

On Petition for a Writ Of Certiorari to the United States Court of Appeals for the Seventh Circuit

Brief of Goldwater Institute, Reason Foundation, and Maine Policy Institute as Amici Curiae Supporting Petitioners

Introduction and Summary of Argument

Respondent, Wisconsin Governor Tony Evers, excluded journalists employed by Petitioner John K. MacIver Institute for Public Policy, Inc. (“MacIver”) from his press briefings, specifically because they were affiliated with MacIver, a Wisconsin think tank that engages in public-policy advocacy.

That is content- and identity-based censorship. Cf. Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (speech burdens “based on the content of speech [or] the identity of the speaker” are subject to strict scrutiny). It is also unjustifiable as a matter of free speech doctrine. Journalists employed by think tanks and other nonprofit organizations play an important role in the evolving news marketplace. As the legacy media’s coverage of state government has declined, nonprofit groups have stepped in to fill the void. At the national level, journalism projects sponsored by think tanks cover stories that the traditional media might not. And for a long time, magazines published by non-profit organizations have engaged in reputable journalism—even if their sponsoring organizations have distinctive, deliberate points of view.

To defend his exclusion of MacIver’s journalists from his press conferences, Governor Evers has cited supposedly neutral criteria that might appear designed to ensure that journalists who are admitted are objective and credible. But that, too, is antithetical to the First Amendment, under which the people, not the government, have the right to decide who to deem objective, credible, and worth listening to. The Constitution’s guarantee of freedom of the press does not assume that the press will be “objective,” and to allow the government power to draw legal lines around the press based on the government’s determination of “objectivity” is unworkable in principle. Besides, many Americans question the objectivity and credibility of today’s corporate media, and a majority find it not credible. So there is little basis to deem journalists employed by organizations like MacIver to be uniquely non-objective and not credible—and, in any event, there can be no justification for giving them less First Amendment protection.

Full Amicus Brief: John K. Maciver Institute For Public Policy v. Tony Evers

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In the Supreme Court of the United States

GARY E. ALBRIGHT, ET AL., Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit

Brief of the Cato Institute, National Association of Reversionary Property Owners, Reason Foundation, Southeastern Legal Foundation, and Property Law Professors Shelley Ross Saxer and James W. Ely, Jr., as Amici Curiae

In Support Of Petitioners

Introduction and Summary of Argument

The Federal Circuit erred by not certifying this novel question of state law to the Oregon Supreme Court. The Federal Circuit erred further when it wrongly guessed how Oregon’s highest court may decide this question of Oregon property law. See Arizonans for Official English v. Arizona, 520 U.S. 43, 78-79 (1997). Contrary to this Court’s guidance in Arizonans, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and Railroad Comm’n of Texas v. Pullman, 312 U.S. 496 (1941), the Federal Circuit did not certify (or abstain from deciding) a novel question of Oregon property law. Instead of certifying this question, the Federal Circuit made an Erie-guess about how it believed Oregon’s highest court might decide this unsettled question of Oregon law.

In doing so, the Federal Circuit unsettled Oregon property law and undermined the certainty of land title contrary to this Court’s admonition in Leo Sheep Co. v. United States, 440 U.S. 668, 687-88 (1979) (“This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation.”).

This is a Trails Act taking case involving issues of Oregon state property law. The federal government converted an otherwise abandoned railroad right-of-way into a public park. But for the federal government’s order invoking section 8(d) of the Trails Act, these Oregon landowners would have enjoyed unencumbered title to, and exclusive possession of, their land. But, because the government invoked the Trails Act, these landowners lost their state law right to their land.  Preseault I, 494 U.S. at 8 (section 8(d) “gives rise to a takings question in the typical rails-to-trails case because many railroads do not own their rights-of-way outright but rather hold them under easements or similar property interests”). 

Had it not been for the Board’s order invoking section 8(d) of the Trails Act, these Oregon landowners would have unencumbered use and possession of their land.  See Brandt, 572 U.S. at 104-05 (“if the beneficiary of the easement abandons it, the easement disappears, and the landowner resumes his full and unencumbered interest in the land”).  The Board’s invocation of section 8(d) of the Trails Act encumbered these owners’ land with a new and different easement.  See Trevarton v. South Dakota, 817 F.3d 1081, 1087 (8th Cir. 2016) (“Congress and the Trails Act intended to convey to the interim trailuser a property interest that includes the right to use the acquired right-of-way for recreational trail purposes.  …[A]s a matter of federal law it granted ‘a new easement for a new use.’”) (quoting Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en banc) (Preseault II)).

This Court recently emphasized the obligation the government owes private landowners when the government imposes an easement across owners’ land.  In Cedar Point Nursery v. Hassid, this Court held that “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.” 141 S.Ct. 2063, 2071 (2021). This Court further explained that the “government commits a physical taking *** when the government physically takes possession of property without acquiring title to it.” Id. This sort of “physical appropriation[ ] constitute[s] the ‘clearest sort of taking,’ and we assess them using a simple, per se rule: The government must pay for what it takes.” Id. And, this Court continued, “even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.” Id. at 2073.

The Federal Circuit erred in its application of Oregon law and held the government did not take an easement across these Oregon landowners’ property.  Oregon law provides that a railroad may obtain only that interest necessary to carry out its chartered purpose – by either its eminent domain power or by conveyance. Oregon case law and scholarly interpretation of that law (relied by the Oregon Supreme Court) further explain that deeds conveying a “strip of land” as surveyed/located across the grantor’s land convey only an easement.

This Court should grant certiorari because the Federal Circuit violated foundational principles of federalism when it refused to certify a novel issue of state law to the state’s highest court.

In a similar Trails Act case Federal Circuit Judge Moore observed “given what an awful job we obviously do of interpreting state law, why don’t we just send this [case] to [the state court], so that we don’t make another mistake?” The Federal Circuit should have followed Judge Moore’s advice.

The Federal Circuit’s refusal to certify questions of state law violates this Court’s guidance and is out of step with the other circuits. This case provides the opportunity for this Court to direct lower federal courts when they should (indeed must) certify unsettled questions of state law to the state’s highest court. This guidance is especially needed in the Federal Circuit because Congress granted the Federal Circuit exclusive national jurisdiction of every Fifth Amendment taking case against the United States, and inverse condemnation cases most often involve interpretation of state property law.

Full Amicus Brief: Gary E. Albright v. United States of America

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Arthur Gregory Lange, Petitioner

v.

California, Respondent

On Writ of Certiorari to

the Court of Appeal of the State of California, First Appellate Division

Brief of the DKT Liberty Project, Law Enforcement Action Partnership, Reason Foundation, and Due Process Institute as Amici Curiae in Support of Petitioner

Summary of Argument

Permitting police officers categorically to effect a warrantless home entry during a misdemeanor pursuit will have deleterious consequences. A categorical rule, which overlooks the case-specific circumstances as to whether a true exigency exists, opens the door to misuse by police officers, erodes public trust in police, and ultimately will undermine successful policing itself.

These impacts are not hypothetical or abstract. The case law shows that officers—when given the opportunity to use a categorical rule—will effect warrantless entries into homes during pursuits for suspected violations of small-scale crimes where no true exigency exists. In the run-of-the-mill misdemeanor pursuit, the suspect’s entry into his or her home does not jeopardize evidence or implicate the safety of others. With a categorical rule, certain officers may initiate misdemeanor pursuits on flimsy pretenses to provide an “exigency” in order to enter a home without a warrant and look for evidence of more serious crimes.

These officers will not be held to account, even where they have engaged in racial profiling when deciding whether to pursue the suspect and enter the home. So long as the officer, after the fact, points to probable cause that the fleeing suspect committed a misdemeanor, the warrantless entry, under this Court’s case law, will be protected. This type of abuse of law enforcement power, in turn, erodes public confidence in the system and increases the likelihood that citizens will not trust, and instead will resist, law enforcement efforts. In the end, policing itself suffers.

A categorical rule is also unnecessary because officers have other mechanisms to more safely and effectively investigate the crimes and effect arrests where necessary, without having to resort to warrantless entry. For these reasons, as well as those set forth by Petitioner, this Court should conclude that the “hot pursuit” exigent circumstances exception does not categorically apply to misdemeanor pursuits.

Amicus Brief: Lange v. California

The post Amicus Brief: Lange v. California appeared first on Reason Foundation.

LAUREN TERKEL; PINEYWOODS ARCADIA HOME TEAM, LIMITED; LUFKIN CREEKSIDE APARTMENTS, LIMITED; LUFKIN CREEKSIDE APARTMENTS II, LIMITED; LAKERIDGE APARTMENTS, LIMITED; WEATHERFORD MEADOW VISTA APARTMENTS, L.P.; MACDONALD PROPERTY MANAGEMENT, L.L.C.,

v.

CENTERS FOR DISEASE CONTROL AND PREVENTION; ROCHELLE P. WALENSKY, in her official capacity as Director of the Centers For Disease Control and Prevention; SHERRI A. BERGER, in her official capacity as Acting Chief of Staff for the Centers for Disease Control and Prevention; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services; UNITED STATES OF AMERICA,

On Appeal from the United States District Court for the Eastern District of Texas, 6:20-CV-564 (Hon. J. Campbell Barker)

Brief of The Cato Institute, Professor Randy E. Barnett, Reason Foundation, Individual Rights Foundation, and Independence Institute as Amici Curiae

In Support Of Plaintiffs-Appellees

INTRODUCTION AND SUMMARY OF THE ARGUMENT

During the pandemic, the CDC criminalized eviction. This unprecedented executive action was premised on an inferential house of cards: if people are evicted, they will live in closer quarters, potentially spreading COVID-19. To avoid this speculative problem, the government banned landlords nationwide from using legal processes to remove tenants. The government literally made it a crime to file a petition in state court. To the CDC, there is no real line “between what is truly national and what is truly local.” United States v. Lopez, 514 U.S. 549, 567–568 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)). But that line still exists, and it must be preserved.

A quarter-century after United States v. Lopez, the federal government still has not learned its lesson. The Justice Department continues to advocate for the same limitless conception of federal power that it advanced in this Court a generation ago. United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993). The CDC’s attenuated reasoning, which “pile[s] inference upon inference,” mirrors the federal government’s losing argument in Lopez. 514 U.S. at 567.

The eviction moratorium is unconstitutional. First, eviction is not an “economic” activity. Cf. United States v. Morrison, 529 U.S. 598, 613 (2000). It is a remedy ordered by a judge, not a fungible commodity that can be sold, exchanged, or bartered. Cf. Gonzales v. Raich, 545 U.S. 1, 18 (2005) (analogizing the interstate market for marijuana to that for wheat in Wickard v. Filburn, 317 U.S. 111 (1942)). It is thus irrelevant whether the legal process of eviction, in the aggregate, has a substantial effect on interstate commerce. Lopez, 514 U.S. at 560. Second, the mortarium is not “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate [noneconomic] activity were regulated.” Id. at 561. Third, even if this order is “necessary” to stop the spread of COVID-19, it is not a “proper” exercise of federal power. The moratorium denies access to state courts, intrudes on state judiciaries, and distorts political accountability. It should meet the same fate as the Gun-Free School Zones Act; states, not the federal government, retain the police power over local affairs.

Full Amicus Brief: Terkel v. Centers for Disease Control

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In the Supreme Court of the United States

MARK RINGLAND, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit

Brief Amicus Curiae Of The DKT Liberty Project, Reason Foundation, and Due Process Institute as Amici Curiae

In Support Of Petitioner

SUMMARY OF ARGUMENT

Access to an email account is rapidly becoming essential in today’s interconnected world.  Communications—and storage of personal documents—via email have become ubiquitous.  Americans use their email accounts to carry out essential tasks in their day-to-day lives, like communicating with loved ones, working with colleagues, collaborating with fellow students and teachers, making appointments with physicians and therapists, and so much more.  Email has become even more important during the COVID-19 pandemic as virtual connections have become the norm.  Even the most basic tasks can require—or at least can be made easier by—email.

Like many Americans, and many internet users worldwide, petitioner Mark Ringland registered for and used Gmail addresses to send and receive emails.  Through the use of “hashing,” Google flagged possible illegal content in one of Mr. Ringland’s email accounts.  Google reviewed a subset of Mr. Ringland’s emails, and then sent a larger set—including that reviewed subset— to the National Center for Missing and Exploited Children.  Ultimately the emails were sent to state law enforcement, which—without obtaining a warrant—accessed and reviewed the files Google had transmitted.  Based on that review, an investigator ultimately obtained a warrant to search Mr. Ringland’s relevant email account.  This same process then happened a second time, that time related to material from another of Mr. Ringland’s accounts.  After being charged, Mr. Ringland challenged the searches of the emails sent from Google, alleging that he had a reasonable expectation of privacy in his personal emails and that the search constituted a trespass.  The district court and the Eighth Circuit upheld the searches under the private-search doctrine announced by this Court in United States v. Jacobsen, 466 U.S. 109 (1984); neither court addressed Mr. Ringland’s trespass argument.

The decisions below were wrong to rely on the private-search doctrine without even considering whether the searches were a trespass.  The private-search doctrine is insufficiently protective of Fourth Amendment interests, particularly when extended uncritically to digital media like emails.  The emails of today are nothing like the letters of yesteryear, in capability, content, or size.  Yet the courts below and courts across the country have rotely applied the private-search doctrine to email searches such as the one at issue here as if emails were equivalent to letters or documents in a cardboard box, without even considering the traditional understanding of the Fourth Amendment and the limits on its exceptions.  Simply put, the private-search doctrine does not appropriately safeguard the Fourth Amendment interests at issue when the search involves digital mediums like email accounts given the vast array of intimate details that can be learned about a person from the information accessible on her email account—personal communications, health information, education-related information, and financial statements, to name a few.

Instead, the traditional property-based understanding of the Fourth Amendment, which is grounded in whether the search was a trespass, is best equipped to handle searches of email.  Unlike the scenario presented in Jacobsen of a DEA agent re-opening a cardboard box, a law enforcement officer confronted with a set of emails that have been accessed by a third party cannot possibly be certain of the emails’ contents or that additional private information will not be disclosed.  Nor can it seriously be maintained that a reasonable individual, by using an email account serviced by a third party, thereby grants an implied license to the government to rifle through her emails.

Without this Court’s intervention, the vast amount of information accessible through an individual’s emails will remain subject to warrantless searches.  The government could use the private-search doctrine to justify warrantless searches into emails whenever a third-party service provider has some reason—correct or not—to believe the email contains evidence of a crime.  Rejection of the trespass approach under circumstances such as this could lead to expansive warrantless searches and vast digital surveillance.

This Court should grant the petition for a writ of certiorari to clarify the applicability of the trespass approach under the Fourth Amendment to warrantless searches of email such as those conducted here.

Full Amicus Brief: Mark Ringland v. United States of America 

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In the Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner,

v.

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

Brief Amicus Curiae Of Pacific Legal Foundation, Reason Foundation, Center For Equal Opportunity, Individual Rights Foundation, Chinese American Citizens Alliance – Greater New York, Coalition For Tj, And Yi Fang Chen

In Support Of Petitioner

INTRODUCTION AND SUMMARY OF REASONS TO GRANT THE PETITION

“In the eyes of government, we are just one race here. It is American.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring). Both the Constitution and the Civil Rights Act of 1964 enshrines the important principle that we are equal under the law. The Equal Protection Clause prohibits the government from denying “any person . . . the equal protection of the laws.” U.S. Const. amend. XIV, cl. 1. Title VI extends that prohibition to private universities that receive federal financial assistance. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race . . . be subjected to discrimination under any program or activity receiving Federal financial assistance.”).

Harvard receives federal funds, Pet. App. 235, but it does not comply with the antidiscrimination mandate of Title VI. Harvard “intentionally provides tips in its admissions process based on students’ race,” id., and “its admissions officers may take an applicant’s race into account when making an admissions decision even when the applicant has not discussed their racial or ethnic identity in their application.” Id. at 236. Under a race-neutral admissions program, Asian Americans would make up 27 percent of Harvard’s incoming class. Id. at 69 n.29. But Harvard’s racial preferences push that number down to 24 percent. Id.

Title VI’s protections are coextensive with the Equal Protection Clause of the Fourteenth Amendment. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Neither the Constitution nor Title VI countenances racial preferences in admissions decisions. The First Circuit’s decision to the contrary rested upon an outlier in this Court’s equal protection jurisprudence: Grutter v. Bollinger, 539 U.S. 306 (2003). The First Circuit invoked Grutter repeatedly throughout its opinion, and concluded that “Harvard’s limited use of race in its admissions process in order to achieve diversity” was consistent with this Court’s precedents. Pet. App. 98.

Grutter should be overruled. From the day on which it was decided, Grutter has been “grievously wrong.” Ramos v. Louisiana, 140 S. Ct. 1390, 1414–15 (2020) (Kavanaugh, J., concurring in part). The Equal Protection Clause contains a categorical statement: no state “shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, cl. 1. Yet the thrust of Grutter is that “not every decision influenced by race is equally objectionable.” 539 U.S. at 327. As a result, Grutter announced a compelling interest in furthering diversity in the limited context of higher education. See id. at 328–30.

This diversity rationale is unsound. It rests upon arbitrary racial classifications. The term “Hispanic,” for instance, does not describe a common background, designate a common language, or even describe gross physical appearance. See Peter Wood, Diversity: The Invention of a Concept 25 (2003). And “Asians” make up roughly 60 percent of the world’s population and encompass people of Chinese, Indian, Filipino, and many more backgrounds. David E. Bernstein, The Modern American Law of Race 9–10 (May 2020).2 Although state-sponsored treatment of individuals as members of arbitrary racial groups is reason enough to overrule Grutter, the decision’s practical effects provides added cause for pause. Grutter’s diversity rationale perpetuates harmful stereotypes against Asian applicants and exacerbates a long and sordid history of discrimination against Asians in the United States. Grutter is also unworkable. As the record in this case illustrates, universities have treated the decision as an unqualified endorsement of racial preferences. Such preferences not only deny students their right to equal justice before the law, but harm the very students they purportedly benefit. This Court should grant the petition, and overrule Grutter.

Full Amicus Brief: Students For Fair Admissions, Inc. v. President And Fellows Of Harvard College

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FDRLST Media, LLC, Petitioner/Cross-Respondent,

v.

National Labor Relations Board, Respondent/Cross-Petitioner.

Brief Of Amici Curiae The Cato Institute, Reason Foundation, Individual Rights Foundation,  DKT Liberty Project, Nadine Strossen, P.J. O’Rourke, Clay Calvert, Robert Corn-Revere,  Michael James Barton, And Penn & Teller In Support Of Petitioner/Cross-Respondent

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Introduction and Summary of Argument

Ben Domenech, publisher of the online politics and culture website The Federalist, jokingly tweeted from his personal Twitter account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Another Twitter user with no connection to The Federalist filed a charge with the National Labor Relations Board, claiming the tweet amounted to an unfair labor practice by parent company FDRLST Media: threatening reprisal against those wishing to form a union. The NLRB ALJ agreed, as did the Board, ordering Domenech to delete the tweet, among other relief. That order has been appealed, which brings us here.

This case can be resolved on the basis of one fact: Domenech’s tweet was a joke, not a threat. We know this because Domenech sent it out to more than 80,000 followers—and anyone else who might find it through retweets or other shares. That’s not the typical modus operandi for breaking federal labor law. If Domenech really wanted to punish employees of FDRLST Media, he would have done it in an email—and if he really really wanted to punish them, he would have done it in a proverbial meeting (now via Zoom?) that could have been an email.

The tweet was also clearly a joke because it was, well, funny. FDRLST Media is not a cartoonishly evil mega-conglomerate with its own salt mine. Those who approach company headquarters need not fear that Domenech might “release the hounds.” His tweet played into that stereotype for humorous effect. There’s no indication any FDRLST employee viewed it as anything more than a joke because no reasonable FDRLST employee could have viewed it as anything but a joke.

Finally, even though Domenech’s tweet was a joke, this case is not. If you can be haled into court and found in violation of federal law on the basis of satire, sarcasm, or hyperbole, everyone will self-censor their humor, to the detriment of freewheeling discourse. Will the NLRB next come for motivational posters saying, “the beatings will continue until morale improves”? Will exasperated exhortations on Twitter to “burn it all down” lead to house calls from the FBI? Better not to start down that path. The NLRB should learn to take a joke.

Amicus Brief: FDRLST v. NLRB

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Americans for Prosperity Foundation, Petitioner,

v.

Xavier Becerra, in his official capacity as the Attorney General of California, Petitioner,

Thomas Moore Law Center, Petitioner,

v.

Xavier Becerra, in his official capacity as the Attorney General of California, Petitioner,

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

Amici Curiae Brief of the Cato Institute, Firearms Policy Coalition, Hamilton Lincoln Law Institute, Reason Foundation, Individual Rights Foundation, Mountain States Legal Foundation, Foundation for Individual Rights in Education, First Amendment Lawyers Association, and Dkt Liberty Project in Support Of Petitioners

Question Presented

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and its progeny held that courts should apply narrow tailoring to violations of the freedom of association. Has that requirement been overruled such that the right to associate privately does not enjoy the strong protective standard that applies to other First Amendment rights, which this Court has held requires narrow tailoring regardless of the level of scrutiny?

Introduction and Summary of Argument

Americans for Prosperity Foundation (AFPF) and Thomas More Law Center (Thomas More) have shown on the record the justified concerns they have for the harms that could befall their donors if they were compelled to disclose them, but those potential harms are not why they should win this case. They should win because the Constitution protects the right to private, anonymous association, which can be overcome only by a government interest that is both compelling and narrowly tailored. Indeed, AFPF and Thomas More should win this case even if there were no demonstrated threats against donors. As Publius understood, the desire to remain anonymous in your political activities is a venerable and time-honored practice. Even without any threats, anonymity can be used to give arguments more attention than the identity of their author or funder. It’s still the government’s job to demonstrate when and why anonymous association should be squashed.

During the Civil Rights Era, state governments tried to force groups like the NAACP to disclose membership lists. This Court stepped in and subjected such attempts to “the closest scrutiny” because “privacy in group association” has long been recognized as “indispensable to preservation of [the] freedom of association” protected by the First Amendment. NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460–62 (1958). Constitutionally authorized abridgments of the freedom of association require “‘a fit that . . . employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective,’” which applies “[e]ven when the Court is not applying strict scrutiny.” McCutcheon v. FEC, 572 U.S. 185, 218 (2014) (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). This narrow-tailoring minimum reflects decades of First Amendment precedent in cases concerning both associational and non-associational rights.

While the Civil Rights Era was unique, the right to private association is still no less vital. When people espouse unpopular or controversial beliefs, private association is critical. Yet, in our current polarized political climate, almost anyone’s beliefs will be controversial to someone. A pro-choice advocate in the deep South might anonymously support pro-choice groups, and a pro-life advocate in New England might support pro-life groups. They have seemingly little in common, but they share a significant interest in associational privacy.

Here, the government has not met the burden to overcome the presumption of associational privacy. The record shows that California has no need to compel donor information; the state has managed effectively both to prevent and prosecute charitable fraud for years before this new demand. Should state officials need donor-identifying information, an audit letter or subpoena would easily produce it.

Those are the facts, as detailed in the petitioners’ briefs and on the record. But a purely fact-bound holding here would be both contrary to the history and meaning of the First Amendment and fundamentally unworkable. If future groups are required to demonstrate threats against members, then few groups will have either the evidence available (not every threatening person sends a tweet, letter, or email) or have the legal and institutional means to demonstrate their situation to the relevant authorities. The presumption of associational privacy protected by the First Amendment should not be practically reversed, with the government in essence saying, “demonstrate sufficient level of threat or lose your right to freedom of association.”

Moreover, people who fear no concrete backlash, but merely want to keep their co-workers from knowing their political-spending habits—a common, understandable, and increasingly wise desire—would be unprotected by a fact-bound decision focusing on a demonstrated fear of threats and retaliation. Refraining from political spending would thus be a wise choice for someone whose political beliefs are generally normal but contextually dangerous—such as opposing recycling policies while working in a Silicon Valley start-up or supporting Black Lives Matter while serving as a clerk in a police department. Those potential victims of California’s First Amendment violations—if sustained by this Court—will largely remain hidden.

The record demonstrates this alarming chilling effect California’s compelled disclosure has on donors. State employees posted more than 1,800 confidential Schedule B forms on a website, opening charitable donors up to potential intimidation, retaliation, and harassment. This kind of publicity not only affects donors’ speech, but also has the potential to dry up charities’ largest sources of support and further inhibit the freedom of association.

The Court’s precedents are clear: No matter the level of judicial scrutiny, state actions that infringe First Amendment freedoms, such as the compelled disclosure of donor lists, must be narrowly tailored to the governmental interest asserted. Petitioners AFPF and Thomas More have provided an opportunity for the Court to reaffirm those precedents and continue its protection of First Amendment freedoms.

The Ninth Circuit misconstrued this Court’s precedents, ignored the question of fit, and gave California free rein to demand donor information for any charity in the nation that operates in the state. The Ninth Circuit is wrong. The state did not meet the necessary burden to restrict the freedom of speech and the freedom of association. California’s Schedule B requirement is unconstitutional on its face.

Amicus Brief: AFP v. Becerra

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In the Supreme Court

State of South Dakota

Sheriff Kevin Thom, in his official capacity as Pennington County Sheriff, and Colonel Rick Miller, in his official capacity as Superintendent of the South Dakota Highway Patrol,

Plaintiffs/Appellees,

v.

Steve Barnett, in his official capacity as South Dakota Secretary of State,

Defendant,

and

South Dakotans For Better Marijuana Laws, Randolph Seiler, William Stocker, Charles Parkinson, And Melissa Mentele,

Intervenor Defendants/ Appellants.

Brief Of Amici Curiae Cato Institute, The Dkt Liberty Project,  Due Process Institute, And Reason Foundation

Appeal From The Circuit Court Sixth Judicial Circuit

Hughes County, South Dakota

Argument

I. Over the Past Half-Century, Most States Rejected Federal Marijuana Policy in Favor of Their Own Approach.

In 1937, the U.S. Congress passed the Marihuana Tax Act, which effectively outlawed marijuana under federal law by imposing a prohibitive tax. Later, the 1952 Boggs Act and the 1956 Narcotics Control Act established mandatory sentences for drug-related violations; a first-time offense for marijuana possession carried a minimum sentence of 2–10 years in prison and a fine of up to $20,000.00. Although those penalties were largely repealed by the early 1970s, the Anti-Drug Abuse Act of 1986 reinstated stiff federal penalties for various marijuana offenses.

The possession, use, and distribution of marijuana is controlled at the federal level through the Controlled Substances Act (“CSA”), which classifies drugs into one of five “schedules” (i.e., categories) depending upon their medicinal value, potential for abuse, and psychological and physical effects on the body. See 21 U.S.C. §§ 811-812. Congress placed marijuana into Schedule I, which is the most severely restricted category. Id. at § 812(b)(1). To be listed on Schedule I, a drug must have “no currently accepted medical use and a high potential for abuse” as well as a risk of creating “severe psychological and/or physical dependence.” 21 U.S.C. § 812(b)(1). Among those drugs listed on Schedule II, which are less restricted than marijuana, are cocaine, codeine, OxyContin and methamphetamine. 21 C.F.R. §§ 1308.11-12. The federal government bans the manufacture, distribution and possession of Schedule I drugs, including marijuana. See 21 U.S.C. §§ 829, 841, 844. Scholars have long observed that in enacting the CSA, Congress dramatically expanded federal powers, particularly those arising under Article I, Section 8 of the U.S. Constitution, and that various provisions of the CSA exceed the common-sense bounds of the Commerce Clause.

Nevertheless, federal statutes tell only a small part of the story. Beginning about 50 years ago, individual states began to depart from the federal approach on marijuana. Between 1973 and 1978, 11 states decriminalized the possession or use of small amounts of marijuana. By the mid-1990s, in the face of mounting scientific evidence pointing to marijuana’s medicinal benefits—including its efficacy in treating glaucoma, reducing pain, nausea, and seizures, and alleviating debilitating symptoms associated with various other medical conditions—many states began to legalize marijuana for medicinal purposes. Since 1996, 33 states and the District of Columbia have authorized marijuana for medical use.

South Dakota is a recent participant in this nationwide, state-by-state rethinking of and dissension from federal marijuana law and policy, both with respect to medical and adult use. And for sound reasons. Between 2009 to 2018, 31,883 people were arrested for marijuana in South Dakota, 95 percent of them for possession offenses. In 2018, roughly one out of every ten arrests in South Dakota were for marijuana. What is more, the vast majority of marijuana arrests involved less than seven grams of the drug, and over 40 percent of all such arrests involved just one gram or less. Nor was marijuana possession by persons in South Dakota indicative of other criminal activity: 98.2 percent of marijuana violations in South Dakota from 2007 to 2016 were standalone offenses, meaning the individual was not charged with any other crime, and in 99.1 percent of marijuana arrests, no weapons were seized by police.
These and other metrics reveal the level to which state law enforcement resources were devoted to addressing a single type of low-level non-violent drug offense involving a plant-based controlled substance with no known potential for fatal overdose but proven therapeutic benefits across a broad panoply of illnesses and medical conditions.

To exacerbate matters, the state’s enforcement of marijuana laws, and a constellation of negative consequences that afflict persons arrested for drug offenses, fell most heavily on South Dakota’s youth. Persons under the age of 25 accounted for roughly 63 percent of all marijuana arrests. Further, the fiscal burdens on state taxpayers of the state’s law enforcement practices were substantial. Based on the percentage of arrests made for marijuana compared to the overall law enforcement costs for South Dakota, each marijuana arrest cost the state of South Dakota an estimated $4,000.00.

Like the majority of U.S. citizens, South Dakotans determined that they, their families, their communities and their pocketbooks would be better served by cannabis (i.e., marijuana) policies that departed from the federal government’s commitment to marijuana prohibition. As of this writing, 15 states have legalized marijuana for adult use. Nearly every state that has legalized marijuana for adult use has done so through a citizen-led ballot initiative.

No state that has eliminated criminal and civil penalties for either the medicinal or general adult use of marijuana has reverted to re-criminalizing marijuana, even in part.

Full Amicus Brief: Appeal No. 29546 Thom v. Barnett

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In the Supreme Court of the United States

BRIDGE AINA LE ‘A, LLC, Petitioner,

v.

STATE OF HAWAII LAND USE COMMISSION, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

Brief of Amici Curiae

Owners’ Counsel Of America, National Association of Reversionary Property Owners, NFIB Small Business Legal Center, Reason Foundation, and Professor Shelley Ross Saxer

In Support of Petitioner

Summary of Argument

For nearly a century, this Court has held out the promise that if a regulation goes “too far,” it will be a taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). But “[t]akings law should be predictable *** so that private individuals confidently can commit resources to capital projects.” Susan Rose-Ackerman, Against Ad Hockery: A Comment on Michelman, 88 Colum. L. Rev. 1697, 1700 (1988). In the intervening time, this Court has also recognized that there are a “nearly infinite variety of ways in which government actions or regulations can affect property interests[.]” Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012). And despite much doctrinal confusion, this Court has repeatedly emphasized one thing: there are few bright lines or categorical rules.

Most takings claims are analyzed by avoiding “any ‘set formula’ for determining how far is too far, instead preferring to ‘engag[e] in *** essentially ad hoc, factual inquiries” under the “storied but cryptic” three-factor test in the “polestar” decision of Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (quoting Penn Central, 438 U.S. at 124); Palazzolo v. Rhode Island, 533 U.S. 606, 633 (2001) (O’Connor, J., concurring) (Penn Central as “polestar”); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (the three factors are “storied but cryptic”).

The emphasis on ad hoc factual inquiries means that most takings cases should be resolved on the facts, by the trier of fact. But the case at bar is the latest in a growing list of examples of an appellate court tossing aside Penn Central verdict rendered by a trier of fact in favor of a categorical rule (invariably a categorical rule of “no liability” in which the “judicial thumb [is] firmly on the governmental side of the balance.” Gideon Kanner & Michael M. Berger, The Nasty, Brutish, and Short Life of Agins v. City of Tiburon, 50 Urban Lawyer 1, 34 n.34 (2019)).

Thus, although apparently designed to throw resolution of takings issues to trial courts and juries — where they belong — Penn Central has instead ironically become a tool that gives appellate courts an infinite arsenal of reasons to second-guess a trial court’s view of the evidence. As a consequence, takings litigation often devolves into a pleadings game, not the fact-intensive inquiry the Court apparently contemplated in Penn Central. This incentivizes both sides to put the cart before the horse. Instead of focusing on the question at hand (what evidence supports a taking, and if there’s been a taking, what compensation must be provided?), the key battle in many takings cases is whose narrative governs: the owner searches for a discrete property interest that has been rendered categorically useless so she can convince the court to treat it as a per se taking under one of the carve-outs, while government counsel advocates for a much broader view of the owner’s expectations at stake (also known as the property interest) in order to water-down the economic impact of the regulation. Here, the Petitioner covered both bases, and the jury found both a Lucas and a Penn Central taking. But even then, the Ninth Circuit would not hear of it.

Full Amicus Brief: Bridge Aina Le‘a, LLC v. State of Hawaii Land Use Commission

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In The Supreme Court of the United StatesCIC Services, Llc, Petitioner,
v.
Internal Revenue Service; Department of Treasury; United States of America, Respondents.

On Writ Of Certiorari To The United States Court Of Appeals for the Sixth Circuit

Brief of National Federation Of Independent Business Small Business Legal Center, Global Business Alliance,
Silicon Valley Tax Directors Group, Information Technology Industry Council, National Foreign Trade
Council, Cato Institute, and Reason Foundation

As Amici Curiae In Support of the Petitioner

Summary of Argument

Congress has consistently limited the Anti-Injunction Act (AIA) to apply only to Internal Revenue Service (IRS) “assessment” and “collection” actions. Those steps in the taxation process occur well after Treasury and the IRS engage in rulemaking or otherwise issue guidance with the force and effect of law (collectively, “rulemaking”).

On its face, the AIA does not apply to block pre-enforcement suits under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, that seek to challenge the validity of a rulemaking. In this case, the Court faces the question of how to balance the strictures of the AIA, on the one hand, with the Congressional mandate for thorough review of agency action, on the other. Though often overlooked, the thirteen enumerated exceptions in the first phrase of the AIA are useful guideposts in this analysis. Those exceptions support the conclusion that the AIA is now, and has always been, narrowly focused on suits that restrain assessment or collection. With the context provided by these exceptions, the AIA looks less like a statute that pre-empts all suits affecting taxation and more like one that can exist comfortably alongside the APA and challenges to the validity of agency rulemaking. This is because each of the AIA’s explicit exceptions considers a situation in which the IRS has targeted a particular taxpayer and taken specific action to assess or collect tax from that taxpayer. These exceptions collectively indicate that Congress did not intend to apply the AIA to other, earlier, steps in the taxation process, such as those seeking clarity on the law before any specific enforcement action.

An overbroad application of the AIA thus contradicts plain statutory language and rests on suspect policy grounds. Worse yet, it shields all Treasury regulations from pre-enforcement judicial review under the APA—even though assessment or collection against a specific taxpayer is not at issue in a garden-variety APA suit. The instant case illustrates some of the harms that follow from that lack of pre-enforcement review. The court below applied the AIA too broadly, leaving taxpayers to “report to prison first [and to] challenge later.” CIC Servs., LLC v. IRS, 936 F.3d 501, 504 (6th Cir. 2019) (Sutton, J. concurring in the denial of rehearing en banc). A straightforward construction of the AIA highlights its proper scope and application. It also harmonizes with the APA’s strong presumption of judicial review. And it facilitates much-needed certainty in the tax law—an area that “can give no quarter to uncertainty.” Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 543 (1979).

Based on the foregoing, this Court should reject an overbroad application of the AIA and clarify that the AIA does not prohibit pre-enforcement suits that challenge the validity of tax rules under the APA.

Full Amicus Brief: CIC Services v. Internal Revenue Service

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On Appeal From the United States District Court for the Central District of California, No. 2:19-cv-10645-psg-ks (Hon. Philip S. Gutierrez)

Brief of the Cato Institute, Reason Foundation, and Individual Rights Foundation as Amici Curiae In Support of Plaintiff-Appellants

Summary of Argument 

“Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. amend. I. The same prohibition applies to state legislatures through the Fourteenth Amendment. See, e.g., Stromberg v. California, 283 U.S. 359, 368 (1931). Laws that “target speech based on its communicative content,” are “[c]ontent-based” and are “presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). In other words, content-based laws are “subject to strict scrutiny.” Id. at 2227.

California’s AB 5 places tight restrictions on the ability of freelance journalists to make a living by subjecting them to limits on the number of submissions they may make to an individual publisher in a given year and, in the case of photojournalists, prohibiting them from making video submissions. The only alternative to these restrictions is to become a full employee of their client publishers. Even if publishers were willing to hire every freelance journalist and photojournalist in the state of California, many prefer freelance work for a variety of reasons, such as the freedom to set their own hours and pursue work that interests them. The restrictions applied to freelance journalism are unique: other categories of constitutionally protected speech, such as “original and creative” marketing, fine art, and graphic design are subject to neither the submission limit nor the video ban. This distinction is not only arbitrary and harmful. It is unconstitutional.

The distinction between journalism, marketing, fine art, and graphic design is entirely dependent on the content of the speech at issue. Under AB 5 as it currently stands, it would be legal for a freelancer to sell 36 images categorized as “graphic design” to a newspaper but illegal for her to sell 36 images of “photojournalism” to the same paper. The only difference? The content of the images themselves. The law is clear: such content-based restrictions are presumptively unconstitutional and must pass strict scrutiny to survive. But California wants to evade strict scrutiny by using the complexity of AB 5 to its advantage, obfuscating the way the law works in an attempt to change a content-based restriction into a content-neutral one. Without explanation, the court below bought California’s argument and threw the journalists challenging the law out of court. This result is inconsistent with the Supreme Court’s decision in Reed v. Town of Gilbert, and with the First Amendment.

Courts around the country have applied Reed’s standard clearly and consistently. This Court should reverse the district court, join its sister circuits in affirming that Reed is the law of the land, and grant journalists their day in court.

Full Amicus Brief: American Society Of Journalists v. Xavier Becerra

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The Court’s seminal vote-dilution case, Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), requires plaintiffs to prove three “preconditions” in order to proceed to the “totality of the circumstances” inquiry set out by Section 2(b) of the federal Voting Rights Act: (1) that members of the racial minority are sufficiently large and compact to form a majority of voters in a single electoral district; (2) that said minority group is “politically cohesive”; and, (3) that members of the racial majority usually are able to out-vote the minority and prevent the minority group from electing its preferred candidates. These preconditions are meant to ensure that federal law does not entitle “minority groups to the maximum possible voting strength.” Bartlett v. Strickland, 556 U.S. 1, 16 (2009) (plurality opinion).

Nevertheless, vote dilution claims require federal courts to determine whether racial groups have sufficient political power. That very exercise is troubling: the right to vote, like the rights guaranteed by the Equal Protection Clause, is an individual right. Vote dilution claims, however, treat people simply as members of their racial group and further “the demeaning notion that members of the defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens.” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 636 (1990) (Kennedy, J., dissenting). Unfortunately, such an understanding slows our society’s progress towards the ultimate goal of rendering race irrelevant to public life, all the while deterring the Court from reaching the promise of the color-blind Constitution. See Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). To avoid conflict with these basic principles, courts ought to limit the enforcement of voting rights to redress violations of the individual right to vote. Individuals, not racial groups, cast ballots. No “racial group”—however perniciously and stereotypically one defines the “group”—is entitled to any particular amount of representation.

With all the problems that vote dilution doctrine has brought, this Court’s intervention is necessary here, if not to repudiate the theory altogether, at least to enforce its outer limits. At issue here is the California Voting Rights Act (CVRA), enacted in 2002 in response to what state legislators saw as this Court’s restrictive interpretation of Section 2 in dilution cases. Rather than strengthening the safeguards to protect against race-based action, the CVRA eliminates the Gingles requirement that a plaintiff prove that the relevant minority group is sufficiently large and compact. And because the CVRA includes a strong fee-shifting provision, it effectively requires California cities to abandon at-large or multi- member district systems in favor of single-member districts based merely upon the existence of racially- polarized voting. Put another way, the CVRA requires municipalities to alter their entire system of choosing representatives to ensure that racial groups may elect a “group” representative. Without even the minimum Gingles safeguards, the CVRA extends the worst aspects of this Court’s Section 2 precedent by mandating race-based voting districts and enshrining in law the idea that individuals of the same race think alike.

This Court should grant the petition for certiorari to reconsider the propriety of the theory of vote dilution—or at least to limit its proliferation outside the confines of Section 2—and repudiate California’s racial gerrymandering mandate.

Full Amicus Brief: Higginson v. Becerra

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