Tuesday audio. Double session next Monday, October 28.
We will finish 11th Amendment.
Consider:
A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:
• Damages for pain and suffering
• Reinstatement to his job
• Backpay (wages he would have earned from his wrongful firing until the point of judgment)
• Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)
Consider the following:
New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.
(Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).
Also, have a look at Free Speech Coalition v. Anderson,
from the 10th Circuit; it illustrates the problems we discussed of identifying the "responsible executive officer" in trying to bring an EpY action. This was a challenge to a state law requiring
porn sites to adopt procedures for age verification. The law adopts
private enforcement as its main enforcement scheme (following in the
footsteps of the Texas abortion law), identifying one form of verification (an electronic drivers' license, issued by the Department of Public Safety). Everyone agrees the AG's general
enforcement power did not do it, since the statute identifies a
different officer to enforce. The panel divided over the action against
the Commissioner of the Department of Public Safety, mainly over the
source of his power.
Move to Standing; prep Constitutional and Statutory Considerations; in addition to the cases listed, focus on TransUnion (discussed in Pfander) and SpokeO (discussed in both). Also read pp. 40-49 of Sierra.
What are the elements and types of standing? What are the supposed purposes of standing and why do they justify (or not) the doctrine? How does standing connect with the merits--and what is the argument that what we call standing is really about the merits? Consider:
• What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech Act?"
•
Congress in 2017 amended the Affordable Care Act to zero-out the
penalty for not purchasing insurance. The obligation to purchase remains in the
statute, but no consequence can be imposed. Does an individual who does
not want to purchase insurance have standing to challenge the validity of the must-purchase requirement?
• What is the difference between "certainly impending" and "substantial risk" for pre-enforcement standing? When does Driehaus say a risk of enforcement is sufficiently imminent? Can you reconcile Clapper and Driehaus in terms of imminence?
• Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies who discriminate on the basis of race), and Clapper (challenging a law authorizing warrantless surveillance)
• What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?
• What is the connection between standing and merits? See Judge Newsom's concurrence in Sierra.
• On what basis should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.
• 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 on her web-site the story of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.
• What about the following case: A operates a restaurant and wants to begin hosting a family drag brunch. Although she has never hosted any life performances (much less drag shows), she has laid the groundwork, including speaking with performers and a band and planning to renovate the space to accommodate a performance area. State law prohibits drag performances in front of children; a business can lose its liquor license.
