Tuesday audio--Hour I, Hour II.
We continue with Eleventh Amendment. Besides text, what are the history and purpose arguments behind finding waiver in the army/navy clauses? What about abrogation under § 5 of the 14th Amendment? Looking at the entire Constitution, do other amendments have enforcement authority?
As part of Ex parte Young, consider the following:
Florida amends its defamation statute (covering private civil actions for defamation) to eliminate the requirement that the plaintiff prove "actual malice" by clear-and-convincing evidence. This provision is invalid under the First Amendment. And individual who expects to speak and is worried about being sued under the statute brings an EpY action seeking to enjoin enforcement of the new law; he sues the Attorney General (to stop enforcement); the Chief Judge of the Florida Eleventh Judicial Circuit (to stop adjudication of any lawsuits under the new law); and the Clerk of Court for the Florida Eleventh Judicial Circuit (to stop acceptance and filing of any lawsuits under the new law). Is this a proper EpY action?
I think/hope we will reach Standing late in the class, so that panel should be ready to go.
For the little bit on Monday and all of Tuesday, prep Constitutional and Statutory Considerations. In addition to the cases listed on the syllabus, focus on California v. Texas, Alliance for Hippocratic Medicine, and Murthy (all in Chemerinsky); TransUnion (discussed in Pfander); and SpokeO (discussed in both). Also read pp. 40-49 of the concurring opinion in this 11th Circuit case (you are welcome to read the whole thing).
• How would standing considerations arise in the lawsuit above against Florida's new defamation la?
• Is there standing in the following case:
A, a website and graphic designer, wants to begin designing web sites for weddings. She has laid the groundwork for those plans, including mock-ups of the sites she would design, although she has never designed (or been asked to design) a site for a couple. State law prohibits discrimination in places of public accommodation because of sexual orientation. A has ideological and religious objections to same-sex marriage and would not want to tell the story on her web-site of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.
