Government Speech and Justice Souter (1)
What Is Government Speech?
Simply put, when government itself speaks, rather than regulating the speech of private persons, its speech is immunized from any meaningful First Amendment scrutiny, including the prohibition against engaging in viewpoint discrimination.
Under the doctrine, government becomes a “market participant” in the marketplace of ideas rather than a regulator of that marketplace, and its First Amendment immunity is analogous to the dormant Commerce Clause immunity of state and local governments when they are market participants. Hughes v. Alexandria Scrap Corp., 426 U.S.794, 809-10 (1976).
The Government Speech Doctrine and the Tenure of Justice Souter
Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan, 500 U.S. 173 (1991), was handed down in 1991, and the most recent government speech decision, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), was handed down in 2009. Read the rest of this entry »
Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago
Introduction
From a section 1983 perspective, here are some things to look for in the aftermath of the Supreme Court’s recent decision in McDonald v. Chicago, 130 S. Ct. — (2010).
The Second Amendment and Section 1983
McDonald held that the Second Amendment right of a person to possess a gun in his home for self-defense, as announced in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), is also protected against abridgment by state and local governments. That is, the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it to the states and local governments.
Consequently, individuals may use section 1983 to bring Second Amendment damages actions against state and local government officials and against local governments themselves (but not states–see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)) that enact gun control laws.
Practical Hurdles
However, there are some practical hurdles for plaintiffs to consider if section 1983 Second Amendment-based damages actions are contemplated. Read the rest of this entry »
Anti-SLAPP Statutes and Section 1983
Some Questions
What is a SLAPP lawsuit? What is an anti-SLAPP statute? And what, if anything, does section 1983 have to do with anti-SLAPP statutes?
Some Answers
1. A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed to chill the exercise of a defendant’s First Amendment rights in order “to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” John v. Douglas County School Dist., 219 P.3d 1276, 1280 (Nev. 2009).
2. Nevada enacted an anti-SLAPP statute whose primary purpose was to protect the right to petition government for redress of grievances. The Nevada statute, modeled on California’s anti-SLAPP statute, provided that when a plaintiff brings an action “against a person based on a good faith communication in furtherance of the right to petition,” the defendant may file a special motion to dismiss which is treated procedurally as a motion for summary judgment so that the trial court can dismiss only if there are no genuine issues of material fact in dispute. Also, the moving party bears the initial burden of production and persuasion.
3. May state courts apply such an anti-SLAPP statute to a section 1983 claim despite possible preemption under the Supremacy Clause? According to the Nevada Supreme Court in John, the answer is yes. Read the rest of this entry »
All My Posts
Since Nahmodlaw.com began in August 2009, I have written thirty-four posts (including a video and podcast) on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.
It occurs to me that it would be useful to readers, especially those who have only recently discovered this blog, to have a list of linked posts by category for ease of reference and use.
What follows is such a list divided into the following four categories:
SECTION 1983; CONSTITUTIONAL LAW; FIRST AMENDMENT; EDUCATION
I. SECTION 1983
Section 1983 Supreme Court Decisions–2009: A Video Presentation
A Section 1983 Podcast: Damages and Procedural Defenses
A Section 1983 Primer (1): History, Purposes and Scope
A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape
A Section 1983 Primer (3): Constitutional States of Mind
A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule
Iqbal and Section 1983 Supervisory Liability
My Position on Supervisory Liability after Iqbal
Van De Kamp and the Shift in Prosecutorial Immunity
Haywood v. Drown: Close Call for the Supremacy Clause?
Rethinking Section 1983 Malicious Prosecution
Qualified Immunity “Order of Battle” Modified
Preempting Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.
Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)
Justice Stevens and Section 1983
Purdue v. Kenny A.: A New Supreme Court Attorney’s Fees Decision
Certiorari Granted in Skinner v. Switzer: Section 1983, Habeas and Heck
Certiorari Granted in Skinner v. Switzer: Section 1983, Habeas and Heck
The Case
The Supreme Court has granted certiorari in Skinner v. Switzer, 2010 WL 338018 (Fifth Cir. 2010), cert granted, 130 S. Ct – (May 24, 2010), to deal with the following Question Presented:
May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?
In the words of the petitioner, Skinner involves the following:
For ten years, Henry W. Skinner has sought access to DNA testing that could prove him innocent of the murders that landed him on Death Row. After the Texas courts arbitrarily turned back his diligent attempts to take advantage of state statutes affording such relief, he sued in federal court under 42 U.S.C. § 1983 to vindicate his due process right to “‘fundamental fairness in [the] operation’” of Texas’s scheme. Dist. Atty’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009)(citation omitted). The district court dismissed Mr. Skinner’s § 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed. The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved. Read the rest of this entry »
Purdue v. Kenny A.: A New Supreme Court Attorney’s Fees Decision
Introduction
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that prevailing plaintiffs in § 1983 and other civil rights cases (excluding prisoners who are separately covered by the Prison Litigation Reform Act of 1995) are ordinarily entitled to a reasonable attorney’s fee unless special circumstances render such an award unjust. Typically, and to oversimplify, a reasonable attorney’s fee is based on what is called the “lodestar,” namely, the number of hours worked multiplied by the normal hourly billing rate. This lodestar is then modified to take account of the extent of the plaintiff’s success. See Hensley v. Eckerhart, 461 U.S. 424 (1983), dealing with the extent of success, and Blum v. Stenson, 465 U.S. 886 (1984), addressing prevailing market rates. The Court has declared that enhancements to the lodestar based on the contingency of success are not permissible under other statutory attorney’s fees provisions, City of Burlington v. Dague, 505 U.S. 557 (1992), and therefore are not permissible under § 1988 as well because of similar statutory language.
Question: What about enhancements to the lodestar based on the quality of an attorney’s performance and the results obtained? After Purdue v. Kenny A., 130 S. Ct. — (2010), the short answer is that these are permissible only in truly extraordinary circumstances.
Purdue v. Kenny A.
Purdue v. Kenny A., which involved a consent decree arising out of the plaintiff childrens’ successful class action against Georgia officials alleging structural deficiencies in Georgia’s foster-care system, dealt with the question of whether an attorney’s fees award based on the lodestar can ever be enhanced based solely on the quality of an attorney’s performance and the results obtained. A panel of the Eleventh Circuit had affirmed the district court’s $4.5 million enhancement of the $6 million lodestar figure based on these two factors.
Reversing and remanding, Justice Alito declared for the Court:
“This case presents the question whether the calculation of an attorney’s fee, under federal fee-shifting statutes, based on the “lodestar,” i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand ….” Read the rest of this entry »
No Laptops in My Classroom: Part One
The First Signs
I noticed it first about five years ago. Students began asking me in class to repeat what I had just said. This was happening more and more often, so I began to think about its significance, especially for the kind of discussion, or modified Socratic, method I use to teach constitutional law, First Amendment and various seminars. It was especially disconcerting because I had been teaching enthusiastically and, I hope, rather successfully for over three decades.
Once I thought about it, I realized that many students were actually taking dictation on their laptops, rather than thinking about what was being discussed and then taking notes. I also noticed that it was getting harder and harder to get students to participate in class discussion, or even for me to see their faces hidden behind laptops and focused on their laptop screens. And if these things were happening when I was speaking or trying to engage students in discussion, they were surely happening when other students were speaking, further adversely affecting the classroom experience.
My use of the discussion method to teach analysis and evaluation (“thinking like a lawyer”)–and not simply to convey doctrine–was therefore being undermined by the use of laptops in the classroom!
Remedial Attempts
It made no real difference that I regularly reminded students that good note-taking was not about taking dictation, that it was essential for their education and professional development that they participate in class discussion and that they make eye contact with me and fellow students. It also did not make any real difference that I occasionally instructed students to stop using their laptops and just to listen for a few minutes.
Of course, I spoke with colleagues about this, and most of them–particularly those using the discussion method–reported similar concerns. Some also were worried about their students surfing the Web and emailing during class, but that was, so far as I knew, not a problem for me because I have always walked around the classroom when I teach for the purpose of keeping students (and myself) more engaged. Despite their concerns, none of my colleagues had banned laptops in the classroom, although I had heard that some faculty at other law schools were beginning to do so.
A Decision to Ban Laptops
Finally, two years ago I made the decision. Beginning with the 2008-9 academic year, I banned laptops from all my classes, making sure that students registering had sufficient notice. It was not an easy or popular decision to make, and it had a touch of irony because I use a computer for research, writing and communicating with students. And I have always appreciated the typing of exams on computers. But I felt that, as an educator with teaching goals going well beyond the transmission of legal doctrine, I had no real choice in the matter.
In a subsequent post, I’ll share with you my impressions of the results over the past two academic years.
A Section 1983 Podcast: Damages and Procedural Defenses
Introduction
My law school, Chicago-Kent, and I just wrapped up our 27th annual conference on section 1983 held on April 15-16, 2010. This conference lasted two days and featured nationally known scholars and attorneys addressing different aspects of section 1983 litigation. Over 160 attorneys from all over the country were in attendance and, thanks to the outstanding speakers and excellent audience questions, the conference was once again a major success.
The speakers were Dean and Professor Erwin Chemerinsky (immunities and Supreme Court review), Professor Karen Blum (local government liability) Professor Rosalie Levinson (substantive due process), Professor Carolyn Shapiro (ethical issues), attorney John Murphey (nuts and bolts of section 1983 litigation), attorney Gerry Birnberg (police misconduct) and I (section 1983 cause of action and damages and procedural defenses).
My Podcast on Damages and Procedural Defenses
In addition to doing The Section 1983 Cause of Action, I did an hour-long presentation on Damages and Procedural Defenses, which covered compensatory damages, punitive damages, and procedural defenses such as statutes of limitation, preclusion, release-dismissal agreements and wrongful death and survival. The entire conference was audio-taped and I am posting my hour-long presentation as a podcast available for listening and downloading. I hope you find it informative.
If you would like to save the file directly, here is the link: Damages and Procedural Defenses: The Basics
The Full Conference Is Available
For those of you who may be interested in purchasing CDs containing the entire two-day conference, please contact Chicago-Kent’s Continuing Legal Education Department at 312-906-5090.
A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule
Introduction
As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).
Typical Fact Pattern
Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.
How the Mt. Healthy Burden-Shift Rule Works
Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive. Read the rest of this entry »
Justice Stevens and Section 1983
Introduction
By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.
Justice Stevens and Local Government Liability
This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.
In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983′s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.
His Position Exhumed
In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.
Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.” He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”
Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.
Observations
Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010 that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983 respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.
Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.
