A Seat at the Sitting - November 2023

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Nate Kaczmarek:  Hello, and welcome to "A Seat at the Sitting." This afternoon, we will preview the November Supreme Court docket in 90 minutes or less. I'm Nate Kaczmarek, Vice President and Director of the Practice Groups. As always, all opinions expressed today belong to our guests and not The Federalist Society. We are looking forward to having Laura Stanley guide today's discussion. Laura is out in Idaho, and I've heard that there's snow.  Other than that, how are things for you, Laura?

 

Laura Stanley:  I'm doing well. And I'm excited to talk about the next sitting.

 

Nate Kaczmarek:  Excellent. Laura is a law clerk for Judge Ryan Nelson on the U.S. Court of Appeals for the Ninth Circuit. She previously served as a law clerk to judge Stephen Schwartz on the U.S. Court of Federal Claims. Before these clerkships, she was a Senior Policy Analyst at GW Regulatory Studies Center, and an economist before that at the EPA. She began her career focus on regulation at the Mercatus Center at George Mason University. Her law degree is from George Washington University Law School, and she has an MA in economics from George Mason University. 

 

      For full bios for Laura and all our guests today, you can check out our website, fedsoc.org. Please note that once our panel has reviewed and discussed all the upcoming cases for November, we'll go to audience Q&A. So please think of the challenging questions you would like to pose to them. Questions can be submitted via the Zoom Q&A function. And we will do our best to answer as many of the questions as we can, given our time constraints. With that, Laura, thank you very much. The floor is yours.

 

Laura Stanley:  Thank you so much, Nate. I really appreciate the invitation. And I'm excited to talk about the Supreme Court's next sitting in 90 minutes or less. We'll leave time for questions at the end. So please use the Q&A function to submit any questions you might have for our speakers as we go along. 

 

      So, the first case on the docket for this sitting is Culley v. Marshall. This is a case out of the Eleventh Circuit on civil asset forfeiture and the procedure required after a seizure. We actually won't do a deep dive into this case, because the Environmental Law and Property Rights Practice Group hosted a webinar previewing this case on Tuesday. So if you're interested in learning more, I encourage you to go watch the recording of that program. 

 

      I know you are eager to hear from our distinguished guests. And I will provide a brief bio of each speaker as we reach the case they will discuss. So, first, we are fortunate to hear from Gary Lawkowski, who is going to talk to us about Lindke v. Freed. Gary is currently counsel at the Dhillon Law Group. And, before that, he served at the Department of the Interior, directly advising the secretary and other senior department leaders. He also served as a senior policy advisor at the White House Domestic Policy Council, and he worked directly for commissioners at the Federal Election Commission.  So I'll hand it over to you to get us started, Gary.

 

Gary Lawkowski:  Great. Thank you. And thanks for having me. It's always good to talk to FedSoc and to hang out with all these fine people. I'm here to talk about a case that will be heard on Halloween, Lindke v. Freed. And it's appropriate that that case is being heard on Halloween, because what's kind of at issue there is whether personal social media accounts are really government social media accounts in costume, in disguise. That's kind of where these cases are going. And I don't want to step on any toes, but I will also address another case that's going to be addressed on Tuesday as well, O'Connor-Ratcliff v. Garnier.  That's because they both kind of touch on the same type of issues.

 

      It's hard, really, to talk about one case without talking about the other. When the Ninth Circuit was deciding O'Connor, it was also talking about how it was distinguishing itself from the Sixth Circuit in Lindke, so we'll hit on both of them a little bit.  So now, what are these cases about? Why are we talking about them? What's all the hubbub here? So, at their core, they both relate to whether public officials operating on social media can ban members of the public from interacting with them on their social media pages. 

 

Both cases involve pages that are ostensibly private accounts of public officials where they’re conducting some degree of government commentary or some imprimatur of acting in their official capacity. For example, they may have their title. They may be spending a lot of time talking about government business. Things like that. So, the question is, is that state action? Is that something that's attributable to the state? Or is that just like you, me, or anyone else on this panel who's not in the government banning someone who we don't want to talk to on Twitter, or we don't want to talk to on Facebook.

 

So, what happened in this case in particular, and we'll start with Lindke, in Lindke, there was this guy named James Freed. He joined Facebook. And, according to the Court, and this is a quote — if you ever get a chance, I would love to have this quote about me in a published opinion — "He grew too popular." He got too popular for Facebook. So, he hit the 5,000-person friend limit, and they converted his personal page into a general sort of public page. I don't know about you, but it must be nice to have a court say, "You're just too popular."

 

In 2014, this man named Freed was appointed to be city manager of a city in Michigan. So he goes from being a private citizen, kind of out and about, to being a government official. He updates this to his Facebook, as one does, I suppose. He posts his job title. He lists his address as City Hall. He lists the city administration as his contact email, and a few other things along those lines that kind of suggest, "Hey, this guy is really excited to be city manager." And this Facebook page kind of relates to that.

 

Now, on this page, he posts on a variety of subjects. The exact ratio is a little bit in dispute between the petitioners and respondents. But everyone basically agrees that he's posting a lot of stuff about how excited he is to be city manager and what he's doing as city manager, in addition to maybe a few posts here and there about his personal activities. So, he makes a bunch of posts about what he's doing as city manager, particularly once COVID hits. If you remember that time in early 2020 and around then, there were a lot of updates from government about what they were doing, what's going on, how people were responding. He was posting a bunch of that stuff on his Facebook page.

 

Now, this other man, Mr. Lindke, wasn't thrilled about how Freed and the city were handling their COVID response. And he decided he was going to let them know that. Like many other citizens, he decided that the best way to do that was on Facebook, and to communicate his views to city officials, particularly Mr. Freed, by commenting on his Facebook profile, this page that's open to the public. He's viewed as a public figure. And it lists him as the city administrator.

 

Now, Mr. Freed wasn't super happy with some of these criticisms and comments. So, first, he deleted a couple of them. Then, after that, he finally gets to the point where he was like, "I don't want to deal with this person. I'm going to block him." So he blocks Mr. Lindke on social media. Lindke sued, alleging this is a First Amendment violation and that Freed's Facebook profile is essentially a government account. This is essentially a government forum that he is being excluded from, based on his critical views. 

 

The district court granted summary judgment to Freed. Lindke appealed. It goes up to the Sixth Circuit. The Sixth Circuit, in an opinion written by a repeat contributor here at FedSoc, Judge Lepore, also ruled for Freed. According to the court, Freed's posts were not state action, which is how they're dividing the line between personal and government. So, even government officials get to have something of a personal life, or can do things in their personal capacity. 

 

So, Pete Buttigieg got a lot of criticism for telling a reporter, "Hey, I'm on my personal time." But there is some scope where even people who work for the government can act in a personal capacity, where they're not acting in their capacity as a government official. Just because you work for the government, everything you do is not attributable to the government.  So, how do you figure out which is which?

 

Well, the Sixth Circuit identified a two-part test to kind of make this call. First, is it part of an office-holder's official or apparent duties?  And second, could it have happened the same way without the authority of the office? In other words, is your job government social media manager? Are you managing the Facebook site? Is that something you have to do? Is this something you could have done without your office? Or is this something that you could do in your personal capacity? 

 

Now, in evaluating these criteria, the Sixth Circuit took a bit of what I would call a more formalistic approach. It concluded first, "No law, ordinance or regulation compelled Freed to have a Facebook page." No one's telling him he had to do this. It wasn't part of his duties as a city manager, per se, to have a Facebook page.  He chose to do this.  He wanted to have one.

Second, even though he talked about his job a lot, updating Facebook wasn't part of his job. I'm sure we've had colleagues like that. They like to talk about their job. They're excited. They like to discuss what they do.

 

But just because they like to do it, doesn't mean that that's part of their official duties. And the court uses the example of "Maybe he really just likes to tell people about the city manager."  If he went into a hardware store and started telling them about his job, no one would say that's part of his official duties.  So it's the same way on Facebook, where he's telling the world about his job.

 

And then, that second part of the Sixth Circuit test included the Facebook page didn't belong to the city. It wasn't a government account. It wasn't registered to the city. It was his personal Facebook page. And, finally, he did not rely on government employees to run his account. This wasn't a case where he had a social media staff that was employed by the government that was writing this for him. He's just doing his own thing. 

 

So, based on that sort of combination of factors, the court looked at this and said, "Hey, we think this guy, he's really acting in his personal capacity. He's not acting as city administrator, even though his title is there, his contact information is there, he's talking a lot about the city. Even with all that, this is still separate from his job. He's doing this in his personal capacity and, as such, he can ban people just like you or I or anyone else can on Twitter and Facebook. It's not state action.

 

So, I can understand that. It's straightforward. But, in doing so, the Sixth Circuit rejected an examination of the page's purpose for appearance. Again, the Sixth Circuit took a very formalistic approach. According to the court, this provides a bright line. This makes it very easy for officials to kind of figure out, "Am I on my personal page? Am I on my public page?" If you're sitting there, kind of typing away, figuring out, "Can I ban this person?" the Sixth Circuit's saying, "Hey, we'll, give you a bright line to kind of make that determination." 

 

So that's all interesting. Why is this here at the Supreme Court? That's kind of cool, but do we really need that issue here? Well, it turns out the Sixth Circuit wasn't the only court of appeals to take a look at this. Several others did. Previously, in a case concerning President Trump and his Twitter account, the Second Circuit determined that that was state action for him to block people on there. They looked at it, acknowledged, "Hey, this guy's had this account from before he was president. This has been his personal account. It will likely be his personal account when he leaves office," it reasoned at the time.

 

"But, nevertheless, he makes a lot of official announcements on here. He talks about himself as the president," and a few other factors the court looked into.  "So, we're going to determine that that actually is government action for him to block people." I was kind of alluding to it in saying they looked at a number of factors. Unlike the Sixth Circuit, the Second Circuit took a much less formalistic approach to this. They took a much more facts and circumstances test looking at the totality of things and how does this look? What's the appearance here? In other words, the Second Circuit was looking at this less as "Here's a bright line rule," and more along the lines of, "Well, we know what a duck is. This walks like a duck. It talks like a duck. It must be a duck." 

 

That's kind of where they came down. Even if an account is not, strictly speaking, part of your job, they're saying, "Well, if you're a government official and it looks like you're doing government business here and someone could look at that and say, "You're doing government business," you're doing government business. It's state action. The Fourth Circuit also took a similar approach in evaluating a chairman of a local board of supervisors, blocking someone on her account.

 

And the Eighth Circuit also rejected a more formal approach. Although, interestingly, in that case, they looked at the facts and circumstances and decided that, actually, this account still falls on the personal side. So this facts-and-circumstances test is not necessarily a one-way ratchet. This doesn't always come out the same way. It really is a facts and circumstances analysis. In that particular case, it was a legislator. He had run for office. He had a campaign page. And they looked at that and said, "Well, yeah, even though he's in office now, he's still using his campaign page, essentially, to talk about how great he is for office. That's still a campaign page. It hasn't become an official account that way. It's still doing what it was doing before."

 

And, most recently — and this is where we get to the second case on Tuesday — the Ninth Circuit in Garnier v. O'Connor -Ratcliff explicitly rejected the Sixth Circuit test. It looked at this history. It looked at the Second Circuit, looked at the Fourth Circuit, looked at the Eighth Circuit and said, "We think that's the better test." It looked at the Sixth Circuit and said, "No, we're not going to go there. We think it needs to go the other way." So it looked at that in finding that school board trustees couldn't block people from their official accounts who were saying things critical of their policy choices.

 

So the result is, coming into Tuesday, we fundamentally have two very different approaches to public officials, their social media accounts, and whether or not what they do on there constitutes state action, particularly for the First Amendment when they're blocking people or deleting comments or kind of trying to limit the discussion. The Sixth Circuit, which is the first case, takes a much more bright-line formalistic approach.  It says, "We're going to look at these two factors.  If you don't have those two factors, it's not a public account. It's not state action, even though you like to talk about your job, you talk about how you're in this job. It doesn't matter, not state action.

 

The Ninth Circuit said the other way, "It looks like you're talking about your job a lot. It looks like someone would think you're doing this as part of your job. Therefore, it is state action. You can't do something contrary to that." And in those two strands, you can see a real clash of values, which is something that's interesting. A lot of the time, cases, when they get to the Supreme Court, there's clashes between different value sets. But here you kind of have a clash within the First Amendment and within the values around free speech about how you want to weigh and evaluate those different concerns.

 

The Sixth Circuit is kind of looking at it — and I think a couple of the amicus briefs make this argument — from the perspective of, "All right, public officials have a right to speak. They have their own First Amendment right to go out there to speak and to associate with whom they like."  And, also, vague laws — as the court has acknowledged, particularly in the First Amendment — kills speech. So there's a concern there that a vague standard of the facts and circumstances, "We're going to look at everything, put it in a blender and see kind of, this looks like a duck." That could kill speech. So that's one end of the First Amendment concern. One, you can associate with whom you'd like. And two, we don't want to kill speech. 

The other side is the more traditional straightforward approach of, hey, if government officials are limiting discussion about them, particularly when they're limiting discussion that's critical of them, that's a First Amendment value. That's a problem that they really shouldn't be able to do. If they're going to create these forums where they're going to go make these government pronouncements, they're going to let everyone in this public square, they really can't be moderating that based on viewpoint. And they can't be banning people from the public square because they don't like what they have to say. That's really inhibiting the robust discussion of ideas.

You're coming into Tuesday with this clash of two different sides of the First Amendment coin. It also kind of creates some strange policy bedfellows. You wouldn't normally see, for example, the state of Texas aligned with the Biden administration. But in this case, they happen to be because they have similar interests, in terms of wanting to be able to have more personal control over their social media accounts. One of the other interesting things — at least for me, I was a former federal employee — is the DOJ filed an amicus brief. And there's a tension even there within the government and how they apply to these types of things. 

If anyone was a federal employee, you may remember the Hatch Act and Hatch Act training about when you can talk about campaign activities and when you're on official government time. The Office of Special Counsel, for Hatch Act purposes, takes very much the Second Circuit-style approach of facts and circumstances of, "Well, it looks like someone could misinterpret this as being government speech. We're going to apply the Hatch Act to it." But DOJ is coming down on the other side of the argument, saying, "Well, the government doesn't own it. It's not government speech for purposes of this First Amendment analysis."

They're slightly different issues. They're slightly different concerns. But there is a tension there in how even the government itself is viewing this for different purposes and under different laws and different frameworks. The result is that this should actually be a really interesting case on Tuesday. It should be an interesting argument. It will be interesting to see what the questions are. And it will be interesting to see what the outcome in both of these cases are. It doesn’t necessarily line up clearly ideologically. And I suspect that may be a result. You never know. It's always kind of a fool's errand to predict who's going to come down where, particularly if there's not a long track record on a very specific issue. 

But there's a real potential here for a number of different directions for the Court to go and potentially for a number of different opinions, depending on how each justice looks at this issue and how they evaluate it. So it will be very interesting on Tuesday to see what the arguments are, what the questions are, and start to get a sense of where they might be heading. And it will be even more interesting when we do get an opinion to see how they're going to reconcile these different values that, again, don't necessarily align along the traditional splits you're used to talking about when you talk about the Court, when you talk about different judicial philosophies. So I think it will be a very interesting case. And I'll leave it there for any questions.

 

Laura Stanley:  Great. Thanks so much, Gary. And it will be really interesting to see how the Supreme Court comes out on those two cases. I'll just ask you a quick question. You talked about how it's a fact-intensive analysis. And we didn't do a dive into the facts of the O'Connor case, but do you think it's possible for the Supreme Court to come out different ways on the two different cases, given how factually distinct they are?

 

Gary Lawkowski:  I think it's possible. And I'll put it this way, I certainly think it's possible that the Supreme Court could reject the test used in both cases. I could easily see a situation where they look at the Sixth Circuit and say, "That's way too constricting," but maybe look at the other circuits and say "That's a little too loose. We need more sideboards." Now, that said, I should say I'm not involved. And our firm does have a case that's dealing with qualified immunity based on the Garnier decision. 

 

So, on behalf of our representatives in that case, the Ninth Circuit was completely right. It was a very obvious decision. Just joking there but, yes, I think it's an interesting issue. And I could see a situation where the Court kind of comes down somewhere that's not squarely on the side of what either the Ninth Circuit did or on the side of what the Sixth Circuit did. 

 

Laura Stanley:  Awesome. Well, thanks so much, Gary. We have some questions coming in, but I'm going to leave those until the end so we can get through all the cases first. So now we're going to move on to our next panelist, Professor Christa Laser, who will talk about the next case on the calendar, Vidal v. Elster.

 

      Professor Laser teaches at Cleveland State University College of Law. And before that she worked for nearly a decade as an intellectual property litigator at WilmerHale and Kirkland & Ellis. Professor Laser's research focuses on intellectual property and innovation. And her scholarship has been cited by the U.S. Court of Appeals for the Federal Circuit and in briefs to the Supreme Court. So we're very fortunate to have her here to talk to us about Vidal V. Elster. So I will hand it over to you, Professor Laser.

 

Prof. Christa Laser:  Thank you so much for having me on. I really appreciate it. So, this case involves a very unique trademark application. In the 2016 presidential debates, Senator Marco Rubio claimed in a presidential debate that then-candidate Donald Trump had "small hands." Steve Elster tried to use the popularity of that phrase to register as a trademark his phrase, "Trump too small." He tried to use that as the basis for registration in clothing and, specifically, he wanted to put that phrase, "Trump too small," on the front of a set of T-shirts.

 

      Now, I will add as an aside that, ordinarily, marks that are placed on the front of a shirt, rather than tags or other locations that are typically associated with the manufacturer or the seller of the good, are considered ornamental uses. But the case doesn't really touch on that topic. Trademarks are essentially a right to protect consumers from deception as to the source of a good or service. They help consumers recognize when a particular item comes from a particular person or entity. Trademarks exist under common law, regardless of registration. And anyone can place any words on their goods, provided they don't infringe any other person's right, without the need for registration.

 

      However, federal registration confers certain benefits, including serving as evidence of validity and providing nationwide protection, whereas common law rights will only exist in the geographic regions where that person has been selling those goods. The trademark office ended up rejecting Elster's registration for the "Trump too small" mark on two grounds under the Lanham Act. And the Lanham Act is the statute that governs those federal trademark registrations, among other issues of consumer protection. 

 

Under Section 2(c) of the Lanham Act — which permits the office to deny registration of a mark that consists of or comprises a name, portrait, or signature identifying a particular living individual, except by his written consent, or the name, signature, or portrait of a deceased president of the United States during the life of his widow, except by a written consent of the widow — under that provision, the Trademark Office denied the registration to Elster.

 

The Trademark Office also denied the registration, initially, on a separate ground under Section 2(a) of the Lanham Act. And this is a separate section that permits the office to deny registration of marks that consist of immoral, deceptive, scandalous matter, or matters which falsely suggest a connection with other people. And then there are some other portions of Section 2(a). Some of these portions have been deemed unconstitutional in previous Supreme Court cases. 

 

The Trademark Trial and Appeal Board, which is a board that handles appeals of these initial rejections, affirmed the denial of registration. But it did so solely on the grounds of Section 2(c). Remember, this is the section that relates to the use of a person's name without their consent. And they found it unnecessary to reach the grounds under Section 2(a). The Trademark Trial and Appeal Board stated that Section 2(c) was not unconstitutional because even if some greater First Amendment scrutiny were to be applied, they urged that Section 2(c) was narrowly tailored to advance two compelling government interests, namely, protecting the named individual's right of privacy and publicity, and protecting consumers against deception as to source. 

 

So, specifically, the right of privacy or publicity is a right that exists typically under state law that would allow somebody to make sure that other people are not using their name or likeness in a commercial fashion without their consent. And there are some limitations under the First Amendment there, for criticism and commentary. And then, protecting against source deception, this is the idea that we want to make sure, as consumers, that we know who's making the things that we purchase. This is the fundamental protection inherent in trademark law.

 

So, the Federal Circuit ended up looking at this Trademark Trial and Appeal Board decision and reversed the Trademark Trial and Appeal Board's decision to deny the mark, saying that Section 2(c) violated the First Amendment as it was applied in this scenario. Now, on the briefs at certiorari to the Supreme Court, Elster and many of the amici argued that Section 2(c) needs to have a carve-out for political commentary. Otherwise, it is unconstitutional.

 

They said strict scrutiny should apply, and that the provision is not narrowly tailored to serve any kind of compelling government interest, for example, right of privacy or protecting against deception, and that any government interest was outweighed by the First Amendment interest in allowing commentary and criticism of a public figure. They also argued that Section 2(c) was viewpoint neutral because it ended up having the effect of denying registration to marks that criticized public figures since only marks that criticize are ones that are likely to not be consented to by the public figure or the individual being named in that mark. 

 

The Patent and Trademark Office, on the other hand, argued that Section 2(c) was, in fact, a viewpoint-neutral restriction, and that any mark that used the name of an individual without consent would be denied, whether that mark criticized, whether it used it in a merely commercial fashion that did not result in any kind of criticism or commentary, or whether it was a mark that was in favor of the public figure, as long as it was not without that person's consent.

 

The USPTO also argued that Section 2(c) did not, in fact, restrict Elster's speech here. Specifically, Elster was free to continue to put the statement, "Trump too small," on T-shirts and that nothing about prohibiting registration means that he cannot do so. The denial of trademark registration merely denies the benefit that registration confers, for example, that evidence of validity and ownership and the nationwide recognition of the mark. 

 

The likely outcome here is far from certain. It could, frankly, go either way. And that's probably one of the reasons that the Court ended up accepting certiorari. I'd be very curious to see, given the resurgence of the Court's approach to constitutional avoidance, if the Court finds some creative way to avoid addressing the constitutional issue here at all. For example, they might determine that because the mark could suggest a false endorsement, that there's no need to address the constitutionality of the restriction of non-consented uses of names, because deceptive uses and uses that falsely suggest a connection with another person are not going to receive the same type of First Amendment protection.

 

I also think it would be really interesting if the Court ends up considering the context in which this particular mark is raised, namely material that's on the front of a T-shirt, and how that might be slightly different, in terms of an as-applied use of the First Amendment issues here, than some of the previous cases that looked at things like the name of bands or other plainly artistic uses of a potential mark. 

 

Laura Stanley:  Great. Thank you so much, Professor Laser. I think I'm going to hold some of the questions until the end just to make sure we get to everyone. So we'll move on to our next panelist now. Next, we'll hear from Braden Boucek, who will talk about Department of Agriculture World Development Rural Housing Service v. Kirtz. Braden currently serves as the Director of Litigation at the Southeastern Legal Foundation and, prior to joining SLF, he served as vice-president of legal affairs at the Beacon Center of Tennessee. Braden also served as an assistant U.S. attorney in Nashville and Memphis for over nine years. And before joining DOJ, Braden served as a prosecutor for the State of Tennessee. So we are very fortunate to have him here to talk to us. And I will hand it over to you, Braden.

 

Braden Boucek:  Thanks, Laura. And thanks to the panelists for having me on. The case which I'm talking about is actually a very straightforward case on a very simple question. Specifically, the case is about whether or not the Fair Credit Reporting Act, or FCRA, unequivocally and unambiguously has waived the sovereign immunity of the United States. The FCRA is a federal law that regulates credit reporting, and it's supposed to protect consumer privacy. And it gives consumers the right to dispute inaccurate information on their credit files and requires furnishers of that information to investigate and correct such inaccuracies.

 

      And what happened here involved a man by the name of Reginald Kirtz. And Mr. Kirtz had a loan account with the United States Department of Agriculture Rural Housing Services. And they issue loans for the development of affordable housing in rural communities. Mr. Kirtz supposedly discovered the information on his credit score in his USDA account was inaccurate. He claimed that it was affecting his credit score. And he attempted to get it fixed. According to Mr. Kirtz, the USDA and others didn't do what they were supposed to do to fix the errors, and so he brought a straightforward federal lawsuit alleging that the USDA had violated the FCRA.

 

      The United States Department of Agriculture moved to dismiss the case promptly, and they specifically invoked the sovereign immunity doctrine. Sovereign immunity is a doctrine that everyone is acquainted with on some level. Sovereign immunity just says that the United States and federal agencies like the United States Department of Agriculture cannot be sued unless Congress has waived its immunity clearly and unambiguously through the statutory text of a provision in question.

 

      There's nothing constitutional about sovereign immunity. I should put that pin in that right now. But the Supreme Court has consistently applied this doctrine, saying that unless we have an unambiguous signal that Congress intended to waive sovereign immunity, a person can't bring a claim against the federal government. In some instances, that's done very clearly. For instance, the Administrative Procedure Act has a very clear and unambiguous waiver of sovereign immunity. 

 

      Now, in this case, however, this is really going to turn on a straightforward question of statutory interpretation. And the argument here that's being advanced by Mr. Kirtz is to just point to two very direct provisions in the FCRA. Specifically, it authorizes suit against, "any person," in one provision. And then it defines "any person" to include "any governmental agency." Mr. Kirtz points to those two provisions and says that you created a clear cause of action and authorized suit against the government on those claims because it included the government among the class of the potential defendant.

 

      This, in the recent past, has given the Supreme Court reason to say that Congress recognized and intended to waive sovereign immunity, the argument being that it would make no sense to expressly authorize suit against the government if the government hasn't waived sovereign immunity in its provision. The counter to this that's being made by the federal agency is that this is not clear and unmistakable language that would give rise to a waiver of sovereign immunity. The USDA maintains that the textual evidence here is not sufficient because it doesn't look as unambiguous as it does in other instances where sovereign immunity has been waived. 

 

      And they reinforced their argument by pointing to legislative history, arguing that legislative history undergirds their claim about whether or not sovereign immunity was waived in this case. In this case, the Third Circuit found on behalf of Mr. Kirtz, and it was the United States Department of Agriculture that sought Supreme Court review. I think the outcome of this case has various implications for both consumers and businesses. If the Supreme Court holds that the FCRA does not waive sovereign immunity, then consumers will have no recourse against the federal government when it's involved in an FCRA violation. And that will, in turn, make it much more difficult for consumers to correct inaccurate information in their credit files and can damage their credit scores. 

 

      Businesses, likewise, are going to be affected by this ruling and interested in the outcome. A ruling that the FCRA does not waive sovereign immunity is going to lead to much more increase in litigation costs if consumers aren't able to sue the federal government for FCRA violations. In such cases, consumers are more likely to sue the businesses instead. So I do think that there's a whole host of diverse interests out there that are going to be watching this case very closely. And I think that this is a case that in some sense is non-ideological because it really is just a clear-cut case of statutory interpretation. 

 

However, having said that, I'll add an additional caveat. Questions of statutory interpretation are returning often to the Court these days, and the Court is increasingly reliant on a pure textualist approach that is skewed looking at legislative history. For that reason, I'm sort of skeptical that the government's argument, which does involve legislative history, is going to hold much sway here. But I do think that, ideologically, there's not going to be any inclination to weigh this one way or the other, other than just to say — to borrow a phrase from Justice Kagan — they're all textualists now. And there's a straightforward textualist case here that turns just on looking at what the FCRA holds in its provision.

 

Lurking in the background, I think, is the ongoing scholarly debate about sovereign immunity itself, its origins, and its legitimacy. I don't see that Mr. Kirtz has squarely put that issue before the Supreme Court. So it might be up to one of the justices if they choose to wade into that. It wouldn't surprise me to see Justice Gorsuch or Justice Thomas want to ask the practitioners questions along those lines about the origins of sovereign immunity and whether it exists in an American republic and whether the Supreme Court should revisit it. But, again, Mr. Kirtz hasn't squarely raised it, so I don't see that being a dispositive issue, especially when there is a straightforward case of statutory interpretation before the Court.

 

Laura Stanley:  Great. Thank you so much for that overview, Braden. So we are going to move on to our final panelist, Amy Swearer. Amy's going to talk to us about what I think might be the most discussed case from the sitting, United States v. Rahimi. Amy is a senior legal fellow at the Mace Center for Legal and Judicial Studies at the Heritage Foundation. She's become a leading conservative voice in national conversations on gun policy and is routinely asked to testify before state and federal legislative bodies. She runs the Heritage Foundation's defensive gun use database and was a primary author of the recently published Heritage Foundation e-book, The Essential Second Amendment.  So we are very fortunate to have her here today. And I will hand it over to you, Amy.

 

Amy Swearer:  Thank you, Laura. On the surface, I think the question presented in Rahimi is pretty straightforward: does 18U.S.C. 922(g)(8), which is the federal statute prohibiting gun possession for people who are subject to certain domestic violence restraining orders, does that violate the Second Amendment on its face? But to really appreciate Rahimi and Rahimi's contextual importance, we need to rewind and understand how we got to Rahimi.  So, if we go back to two terms ago, we had the Court's decision in New York State Rifle and Pistol Association v. Bruen.

 

      Bruen was the Court's first real attempt to vindicate its landmark Second Amendment decisions in Heller and McDonald, which lower courts spent the decade after those cases largely undermining and failing to take them seriously at every opportunity. So, in Bruen, the Court strikes down New York's very restrictive proper cause requirement for public carry permits. But even more importantly than affirming that there is, in fact, a right to carry and to bear arms, Bruen clarifies, for the first time, the proper test for analyzing Second Amendment challenges.

 

So, the Court, in Bruen, doesn't adopt a two-step test that had developed in the lower courts after Heller, or any test that incorporates a tiers of scrutiny framework. But it, instead, adopts a test centered on historical analogy. If the Second Amendment's plain text covers an individual's conduct, that conduct is presumptively protected, and the government must then justify its regulation by demonstrating that it is consistent with the nation's historical tradition of firearms regulation. So the government doesn't have to produce some historical twin or a dead ringer for the modern law.

 

But it does, at the very least, have to show that the two laws impose a comparable burden on the right of armed self-defense, and that burden has to be comparably justified. So this new Bruen test results in a flurry of Second Amendment challenges over a wide range of issues that are now essentially being relitigated under this new historical analogy test. And you've seen a range of ways in which lower courts have applied this Bruen test, either more broadly or more narrowly, in terms of what they're willing to accept as a good analogy. And it was pretty clear that it was a race back to SCOTUS to be the first case where the Supreme Court has to clarify how exactly the Bruen test should work in practice.

 

      And this brings us to Rahimi, which was — to the consternation of everyone except the federal government — the case that wins this race back to the Supreme Court after Bruen. The government doesn't bother with rehearing en banc or filing for extensions, like it does in most other Second Amendment cases. It rushes it right to the Supreme Court. And it's easy to see why. In many respects, Rahimi is the mirror image of Heller, McDonald, and Bruen. Those were all cases that were intentionally teed up with very sympathetic plaintiffs facing the most extreme barriers to the exercises of their Second Amendment rights: things like, "You can't own a handgun.  Okay, fine, you can own a handgun, but you can't take it anywhere outside of your home."

 

      The plaintiff in Rahimi is not particularly sympathetic. He is, actually, by all accounts, a pretty bad dude. And the law at issue is at least nominally related to a cause most people would agree with, keeping guns out of the hands of domestic violence offenders. So this was probably one of the government's best bets to cabin Bruen immediately. Mr. Rahimi — if you're not familiar with the case — was accused of committing domestic violence offenses, including some with firearms. It's not clear to me he was ever actually charged over those allegations but, at some point, he is subjected to a domestic violence restraining order that meets the criteria, under 922(g)(8), for federal firearms disqualification.

 

      He proceeds to ignore that restraining order and the firearms disqualification. He obtains a firearm illegally. And he ends up committing at least five separate shootings over a two-month span. Really bad facts of those shootings. Ultimately, he's arrested.  He pleads guilty to some of the state criminal charges. But he's also convicted in federal court for violating 922(g)(8) because they find the restraining order right there in the search of his home. And so, they tag on this federal charge. Post-Bruen, he rechallenges this federal conviction, arguing that it is unconstitutional and cannot stand up to the Bruen test. 

 

A Fifth Circuit panel agrees with him. They go through the historical record, per the Bruen test. And they find that there is no historical tradition of using civil restraining orders to completely deprive people of the right to keep and bear arms simply because they're accused, not convicted, but merely accused of domestic violence. The government's proposed historical analogs either impose far more burdens on the right than does the modern statute, or they utilize a very different justification, for example, protecting against public terror, and not necessarily private fears based on domestic violence.

 

Judge Ho, in particular, has a concurring opinion in which he explains the various ways the government could still have probably constitutionally disarmed Rahimi under the Bruen test, things like holding him without bail, making disarmament a condition of any pretrial release. It can pursue a criminal conviction, put him in prison, disarm him after his conviction, because now he's a violent felon. But ultimately, this is what makes it now to the Supreme Court.

 

And I think Rahimi's importance will be less about what the Court actually does and more about whether and how the Court's conservatives come to a consensus on methodology and figure out how much they really meant what they said in Bruen about this historical tradition, this analogy test, and how it's supposed to work, and whether they still mean it with bad facts. Ultimately, the Court, I think, is going to have to choose between three options. Obviously, it could affirm the Fifth Circuit and adopt its reasoning or adopt a reasoning that's very similar to it.

 

In theory, the Fifth Circuit's reasoning appears to be a pretty good-faith application of the Bruen historical analogy test.  And in a vacuum, again, I think that's a good-faith application. But this isn't a vacuum. You have the Chief Justice and Kavanaugh, who, if you go back to Bruen, they essentially have a concurrence that more or less block quotes dicta from Heller and McDonald that appears to sometimes be at odds with Bruen's actual test, saying, "Well, we're not going to cast doubt on some of these longstanding and presumptively lawful statutes, even if it's not clear how they'd actually stand up to this historical analogy requirement."

 

You also have Justice Alito, who is notoriously not one to be sympathetic, or at least particularly sympathetic to the plight of people accused of violent or heinous crimes. But perhaps this is a case where the facts are actually so bad for Rahimi that it works in his favor. As Judge Ho's concurrence pointed out in the Fifth Circuit, there are probably about a half-dozen ways the government could have otherwise constitutionally disarmed him, because this wasn't a particularly close call about how bad of a guy he is or what he's done. 

 

The second option is sort of the opposite. The Court could obviously kick the teeth out of Bruen by adopting the government's reasoning in the case, which is a very broad approach to historical analogy, basically arguing that there is a historical tradition where the government gets significant leeway to determine who is or is not a responsible person, for purposes of being a member of the people to whom the right to keep and bear arms belongs. And they don't just have to convict someone of a crime, but they can use a far lower bar that can encompass sometimes even stock language found in divorce decrees. I don't think this is the most likely outcome. But it is certainly an outcome that could happen. 

 

I think the third option is something where there's a far better chance. I think there's a reality in which the Court tries to split the proverbial baby in some way and create, perhaps, a distinction between C1 and C2. So, there are again, two ways for a restraining order to qualify under 922(g)(8), either a judicial finding of a credible threat, or the order just prohibits, by its own wording, the party from using or threatening to use physical force. So, they could try to split the difference there, and perhaps find one of those is historically analogous but maybe the other is not. 

 

And I think the Court can also try to create a distinction about how much wiggle room the government gets, with respect to disarming people accused of violence, versus those accused or convicted of non-violent offenses. They'd certainly have the opportunity to immediately cabin whatever they say in Rahimi by granting cert in a case called Range, which I think now has a cert petition pending, which deals with a very sympathetic non-violent felon. It's a much cleaner case and could certainly offer that opportunity for the Court to just split the baby there.

 

      One final thing of importance to note is that the government, in its merits brief, declined to cite or rely on the very racist gun laws that often pop up in these cases for historical analogy. It's sort of been an open question in many of these cases. To what extent, if any, these laws — for example, banning firearm possession exclusively on the basis of race — how should those come into play, when most of them would now be considered unconstitutional for other reasons? 

 

So, in the end, this is not going to be like Heller or Bruen where it was pretty clear the statute would be overturned, and it was just a matter of how the Court would get there. I think this is a much messier case, nevertheless, with tremendous implications for how important Bruen actually ends up being, in the long run. Because, again, they're sort of deciding how seriously they're going to take their own test when you have a messier case with bad facts and an unsympathetic plaintiff. So, I suspect we'll learn a lot more in oral arguments about where certain justices are in their thinking or concerns. But, again, a pretty messy case with big implications. 

 

Laura Stanley:  Great. Thank you so much, Amy. I think it's safe to say a lot of us are eagerly awaiting argument in Rahimi. So, the final case in the sitting is Rudisill v. McDonough. This is a case out of the federal circuit, and it will affect educational benefits for veterans. James Rudisill, who served three periods of active-duty service, used 25 of his 36 months of eligibility under the Montgomery GI bill to pay for his undergraduate education. Later, he applied to Yale Divinity School. And he intended to pay for that education with his post-9/11 GI bill benefits.

 

So, both GI bills offer a maximum of 36 months of educational benefits. And Congress has implemented various provisions to limit the benefits, including a 48-month cap under both programs, generally. The federal circuit held that if a veteran has only used some of the benefits under the Montgomery GI bill program and then also elected to receive benefits under the post-9/11 GI bill program, the benefits are limited to only the unused benefits under the Montgomery GI bill program. So this will be an important statutory interpretation question. It will affect educational benefits for many veterans. And it will be the last case on the November docket. So we won't go into much more depth on that case.

 

      And that wraps up our overview of the cases on the November docket. So, to our attendees, I just want to remind you, please feel free to use the Q&A function to submit any questions that you have for our speakers. And before we move on to questions, I'll just ask all of our panelists if anyone wants to chime in additional thoughts on their cases or the other cases we have discussed.

 

      All right. I don't think so. So, the first question we have is for Gary. And the question is that to the extent that social media posts on Facebook, Twitter, and so forth are state action, would there be some immunity for defamation, for example? It was kind of maybe outside the realm of these two cases. So, if you want to punt on this question, that is totally fine.

 

Gary Lawkowski:  I mean, it's a very interesting question. And it's coming up in slightly different contexts. They're being analyzed under slightly different statutes concerning when federal officers can be sued, and what's within the scope of their employment. So that question is actually coming up, not necessarily in the defamation context. But I would think that that question is going to come up more in terms of the statutes regarding when a federal employee has immunity or when the government's going to step in to defend them, based upon their status as a federal employee.

 

      That's going to be based more on whether or not what they're doing is within the scope of their office. And that's raising some very interesting questions, at the moment, in a couple of different cases that are working their way through a number of different courts about what's within the scope of, particularly, a high elected official's office. What's within, kind of, the outer perimeter of that? What qualifies as part of their federal duties? So, it's a separate question. And it's being analyzed separately. But it's also a very interesting question.

 

Laura Stanley:  Great. Thank you. So, the next question is for Professor Laser. It seems like the Court, in recent years, has been in a trend of getting rid of trademark provisions that impinge on free speech, so, thinking of Matal v. Tam. I think Iancu v. Brunetti. Do you think we can look at this trend at all and gain any insight on where the Court might go?

 

Prof. Christa Laser:  I think that those prior cases which focus on the provisions under Section 2(a) were a little easier than this one. Those cases looked at questions like whether the trademark office can refuse marks on the grounds of them being immoral, on the grounds of them being scandalous, disparaging, contemptuous. Those things are much more clearly a viewpoint restriction than something that says, blanket, "You may not use the name of somebody else without consent." So, I think that it's much less likely that this constitutes viewpoint discrimination.

 

Now, there are arguments that are being made by Elster that this constitutes viewpoint discrimination. I think the one response that the office might have to that is to say that the office would deny registration to supporting marks as well, as long as they weren't consented to. So, for example, a pro-Trump mark would also be denied if it wasn't created with the consent of the person whose name is referenced. And so, in that sense, the trademark office would be saying this is not a situation of viewpoint restriction.

 

And then, I think this particular one has more of a justification than those cases, in the sense that this could violate people's right of privacy, right of publicity, and could also be deceptive to consumers, and that there's a basis here to have restriction that denies the ability to register marks that are associated with somebody that's not yourself without their consent. That seems like a different type of case than the ones we've seen before.

 

But we'll have to see what the Court does. Of course, those previous precedents reflect that the Court is taking a viewpoint that's in strong support of extensive First Amendment protections, particularly for commentary and criticism. So, in that sense, those cases could come back and support a finding that denial is unconstitutional here.

 

Laura Stanley:  Great. Thank you so much, Professor Laser. So, the next question is for Amy on Rahimi.  So, would a domestic violence statute like the one at issue here have a greater chance of passing Bruen if it had more due process protections built into it?

 

Amy Swearer:  It's a good question. I think that one of the concerns is always the adequate amount of due process. Is it a comparable justification under comparable circumstances? Which is why, a lot of times, you see that the due process component, compared to what we see in the criminal law context, the criminal justice system context, where there's substantially more due process for someone who has been convicted of a crime, at least, in theory, substantially more due process than you would see in, perhaps, something like a restraining order.

 

I think the other component of this, though, is not just the due process aspect but again, this imposition of a comparable burden between the historical and the modern statute. So, when you go through the Fifth Circuit's reasoning, for example, with respect to surety laws, or laws about going armed to the terror of the people, a lot of those did not have a component wherein that person was completely disarmed, that the burden was on you cannot necessarily carry in public. But it is not criminal, in and of itself, to simply continue possessing that gun.

 

And so, I think, even there, it is an uphill battle, I think, under that strict application of Bruen's historical analogy test. But I could certainly see something like due process coming into play, not just in this case, if they decide to, like I said, split the baby and try to split hairs between (c)(1) and (c)(2), and say, "Okay, well, if there's a judicial finding, maybe it has to be under certain circumstances or certain levels of due process." So, I think it comes into play. But I don't think it's the clinching factor, at the end of the day.

 

Laura Stanley:  Great. Thank you so much. It looks like our last question is for Braden. So, if the Court holds that there's not a clear waiver of sovereign immunity, then what would the remedy be? And is there any other remedy available? Under the APA, is there any other remedy available?

 

Braden Boucek:  At least not against the federal government. It would just mean that they're totally immune from suit. It wouldn't mean you couldn't sue other parties. It wouldn't mean you couldn't even potentially sue businesses. But it would take the federal government totally off the board. And here, as I understand the allegations, Mr. Kirtz is claiming that it's USDA's fault. They're the ones that didn't do what they were supposed to do. So, if that's true, then that would be a completely unsatisfying remedy for him, at least under the Fair Credit Reporting Act.

 

Laura Stanley:  Great. Thank you so much. So, we don't have any more questions. Do any of the panelists want to chime in with any final thoughts before we wrap up? All right. I don't see anyone. So, I just want to thank all the panelists so much for this great overview of the November docket. I think we're all looking forward to arguments. And we'll wrap up there.

 

Prof. Christa Laser:  Thank you for having us.