Facebook Case Tests Scope of ‘True Threat’

This article first appeared in the April 7, 2014, issue of the National Law Journal’s Supreme Court Brief.

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

The petition also notes that at least eight state high courts are in conflict with the federal courts of appeals covering their regions. For instance, the First Circuit utilizes an objective test, while Massachusetts and Rhode Island follow a subjective one. State-federal conflicts are present in the Second and Ninth Circuits, too, the petition reports.

The Third Circuit applied the objective test, the majority view, to uphold Elonis’ Facebook convictions.

In his petition, Elonis argues for the subjective test, submitting that he was just using Facebook therapeutically, as his marriage had broken up and he had lost his job. The Facebook posts, the petition contends, “certainly involve no more violent imagery than songs by any one of scores of popular rappers, including the Eminem songs about the rapper’s ex-wife that inspired several of petitioner’s posts.”

In his Facebook posts, Elonis brought up the First Amendment, linking to a Wikipedia entry on freedom of speech. In one post, he wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?

This article first appeared in the January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.

Federal courts are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A BREAST).” The bracelets are part of a breast cancer awareness movement targeted at youth, but some middle and high school administrators are crying foul. A petition for certiorari on this free speech issue is pending at the U.S. Supreme Court.

In its 1969 landmark First Amendment decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that school officials could not bar young people from wearing black armbands to school as a peaceful war protest. In 1986, though, in Bethel School District No. 403 v. Fraser, the high court said that officials could punish student speech that used vivid sexual imagery in a school assembly.

The “boobies” bracelet is a hybrid between the Tinker armband and the Fraser speech: a clothing accessory with a message, which some schools view as double entendre.

So far, courts have not found that the bracelets substantially disrupt the school environment, yet they have reached different results on the bans.

Schools won in Indiana and Wisconsin federal district courts; those decisions were not appealed. Students won at the U.S. Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.

The nine-member Third Circuit majority determined that the “bracelets are not plainly lewd,” looking to Fraser, and comment on “an undeniably important social issue,” applying Justice Samuel Alito Jr.’s concurrence in another student speech case, the Supreme Court’s 2007 Morse v. Frederick.

Five judges on the Third Circuit dissented.

What about “I ♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness slogans? “[S]chool districts would be powerless to address” them.

The dissent also criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on the weight of Alito’s opinion (separate from the split about the bracelets).

Morse is better known as the “BONG HiTS 4 JESUS” case, quoting a banner that students unfurled at a school event. A five-justice majority said that the banner was not protected speech in a school setting, since it promoted illegal drug use.

The Third Circuit dissent reasoned that since Alito joined that majority opinion, his concurrence is dicta. For plurality rulings, the narrowest rationale controls, but Morse was not a plurality. Justice Anthony Kennedy also signed on to Alito’s concurrence.

The Third Circuit majority responded that Alito and Kennedy cast the deciding votes, but on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any political or social issue.” The social commentary language is binding and weighs in favor of allowing breast cancer awareness bracelets, the Third Circuit majority concluded.

A petition for certiorari is pending at the Supreme Court on the Third Circuit decision. Absent extensions, the response is due February 5.

The justices may opt to wait until more federal appellate courts have vetted the bracelet bans or otherwise choose not to disturb the rulings below.

In 2012, the justices declined to review two en banc decisions—also from the Third Circuit—about another free speech battleground for students and schools: online posts. The circuit had sided with students who created fake and vulgar MySpace profiles about their principals, while off school property.

Circuit Split Watch: Attorney's Fees in Prisoner Litigation

This article first appeared in the November 5, 2013, issue of the National Law Journal’s Supreme Court Brief.

Mary Murguia, one of the newest judges on the U.S. Court of Appeals for the Ninth Circuit, recently took on two of her longest serving colleagues in a dispute over attorney’s fees in prisoner litigation. Murguia has another appeals court, the Sixth Circuit, on her side. The U.S. Supreme Court could be asked to resolve the split.

Judge Stephen Reinhardt, joined by Judge John Noonan, wrote the majority opinion in Woods v. Cervantes. Both have served on the Ninth Circuit since the 1980s. Reinhardt is still active; Noonan has taken senior status. Murguia joined the Ninth Circuit in 2011, though not as a rookie. From 2000 until her elevation, she served as a federal district judge in Arizona.

In the Ninth Circuit case, a California prison official improperly denied dental care to prisoner Earnest Woods, causing him pain and suffering for more than a year. A jury awarded Woods $1,500 in compensatory and punitive damages. After also winning on appeal, Woods sought attorney’s fees totaling $16,800.

The Prison Litigation Reform Act caps attorney’s fees at 150 percent of a money award for “any action brought by a prisoner.” Beyond that limit, “fees shall not be awarded.”

Reinhardt ruled that Woods was entitled to collect his attorney’s fees,** finding that the cap applies only to fees for a trial, an action brought by the prisoner, but not to appeals brought by prison officials.

Murguia, the former district court judge, disagreed, calling the majority’s attempt “to evade the statute’s clear meaning…unconvincing.” The trial and appeal are parts of the same action, she stated.

Citing a unanimous 2004 decision by the Sixth Circuit, Riley v. Kurtz, Murguia urged that the attorney’s fee cap apply to both the trial and appeal. The Supreme Court declined to review the Sixth Circuit case at the time.

“The majority has created a circuit split by awarding attorney fees the statute says ‘shall not’ be awarded,” Murguia concluded.

Reinhardt acknowledged the circuit split, but countered that “we are not required to follow the initial circuit to decide an issue if our own careful analysis” yields a “contrary result.”

The state of California, representing the prison official, filed a petition for rehearing en banc in August. California argued that the majority opinion “blows the lid off the statutory attorney’s fee cap that Congress enacted to lessen the financial burden of prisoner litigation on governmental officials and, ultimately, taxpayers.”

In September, the University of Montana Law School’s Criminal Defense Clinic responded for Woods, accusing the petition of “overriding hyperbole.” The response suggested allowing the issue to percolate through additional circuits.

The Ninth Circuit had directed the clinic to respond to the petition, indicating some level of interest in taking up the matter en banc. Responses to en banc petitions are not automatically allowed.

If the en banc court declines to step in, the case could reach the Supreme Court soon.

Attorney’s fees are already on the high court’s radar.

In the new term, the Supreme Court will hear two cases about fees in patent disputes. Companies have complained that they are forced to settle infringement lawsuits, even frivolous ones, because the costs of litigation are too high. They hope the justices will make it easier to collect attorney’s fees, to deter so-called patent trolls.

Last term, the Supreme Court decided an attorney’s fee case in the context of the National Childhood Vaccine Injury Act and another, without argument, in an abortion protest clash.

Murguia’s brother Carlos is a federal district judge in Kansas, their home state. The two are the first brother and sister pair of federal judges. Another sister, Mary’s identical twin Janet, is the president of the National Council of La Raza, the largest national Hispanic civil rights and advocacy organization in the United States.

____________________

**On the exact amount of attorney's fees to award, the majority referred the matter to its Appellate Commissioner.

Circuit Split Watch: Patricia Millett's Last Supreme Court Case?

This article first appeared in the August 14, 2013, issue of the National Law Journal’s Supreme Court Brief.

Patricia Millett, one of President Obama’s three pending nominees to the U.S. Court of Appeals for the D.C. Circuit, is a counsel of record in Samantar v. Yousuf, now making its second trip to the Supreme Court.

The petition in the case, which Millett opposes, highlights a circuit split in the lower courts about immunity for foreign officials. The Supreme Court has already shown interest in the petition twice and may decide to hear the case in the upcoming term.

During a recent Senate Judiciary Committee hearing on Millett’s nomination, Senator Chris Coons (D-Del.) asked her about Samantar, which she argued and won at the high court in 2010. Millett, who co-heads the Supreme Court practice at Akin Gump, represents individuals who allege that Mohamed Ali Samantar is responsible for atrocities, including torture and murder, committed under his command as defense minister and then prime minister of Somalia. He currently lives in Virginia.

In 2010, the justices found that Samantar was not entitled to immunity under the Foreign Sovereign Immunities Act, but left open the question of whether common law immunity might apply. That is the issue in the latest case.

On remand, the Fourth Circuit rejected common law immunity for Samantar. The court noted that “crimes or human rights violations” contrary to international norms, also called jus cogens, can wipe away immunity.

The pending petition, filed by Shay Dvoretzky, a partner at Jones Day and former Scalia clerk who represented Samantar at the Supreme Court in 2010, contends that three federal appellate courts disagree with the Fourth Circuit.

Most recently, the Second Circuit held in 2009: “A claim premised on the violation of jus cogens does not withstand foreign sovereign immunity.”

Millett, for the respondents, disputes that a circuit split exists, in part because the cases the petition identifies as splitting from the Fourth Circuit predate the 2010 Samantar decision. In other words, they did not incorporate the Supreme Court’s latest statement on immunity for foreign officials.

In addition, the response brief points out that, after the Court’s 2010 decision, the U.S. State Department rejected immunity for Samantar. The State Department determined that he “is a former official of a state with no current government formally recognized by the United States.” As a result, no recognized government can “assert or waive any immunity Samantar might enjoy.” The United States recently recognized a government in Somalia, which requested immunity for Samantar, but the State Department has not, to date, changed its recommendation.

The case has the Supreme Court’s attention.

On June 24, after briefing by both sides, the justices called for the views of the Solicitor General (CVSG). According to research published in a 2009 George Mason Law Review article, “the grant rate is considerably higher following a CVSG,” but it does not guarantee that the Court will hear a case.

Earlier, the Court requested a response to Samantar’s latest petition, after that opportunity was initially waived. Though less of an indicator than a CVSG, the response request also increases the odds of a grant, according to the 2009 research.

The fact that the question at issue is one the Court itself left open earlier is another factor favoring review.

Will Samantar be Millett’s last Supreme Court case (or one of the last) in her history-making career as an advocate before the Court? The Senate Judiciary Committee already approved her nomination, along party lines, but the full Senate has not yet voted.

For most of her career, Millett served in the U.S. Department of Justice in the Solicitor General’s Office and in the Civil Division’s Appellate Section, under administrations of both parties. As Senator Ted Cruz (R-Tex.) told Millett at her hearing, she finds herself in the midst of a larger battle over the D.C. Circuit, which is not about her qualifications.

Millett and fellow Solicitor General office alum Lisa Blatt, who heads Arnold & Porter’s Supreme Court practice, made history in recent years by passing the thirty-argument mark, the most ever for female advocates before the high court. Blatt now holds the lead with thirty-three arguments to Millett’s thirty-two.

The author assisted with the briefs in the 2010 Samantar case as an attorney at Jones Day.

Circuit Split Watch: Streaming Live Broadcast Television

This article first appeared in the June 10, 2013, issue of the National Law Journal’s Supreme Court Brief.

Through a service called Aereo, live broadcast television is available on computers in some areas. Many consumers welcome the option, but broadcasters, alleging copyright infringement, do not.

One federal appellate court recently ruled in favor of Aereo, while another is reviewing a contrary result. The U.S. Supreme Court may have the final word.

For eight dollars a month, Aereo subscribers can watch live broadcast television on their computers, tablets and smart phones. Available channels include ABC, CBS, NBC, FOX, PBS and others. Aereo is now in New York City and Boston, as well as surrounding areas. The company plans to expand in the near future to more than twenty cities.

In April, the U.S. Court of Appeals for the Second Circuit, in WNET v. Aereo, Inc., refused to block the streaming service, upholding the lower court’s denial of a preliminary injunction. Circuit Judge Christopher Droney wrote the majority opinion, joined by Judge John Gleeson, visiting from the U.S. District Court for the Eastern District of New York. Circuit Judge Denny Chin vigorously dissented.

Writing for the majority, Droney held that Aereo is essentially an antenna for the new millennium. Over the years, many viewers have used individual rooftop antennas to capture broadcast programming. Aereo uses new technology to do the same thing. Thousands of mini-antennas, about the size of a dime, are installed on boards at Aereo.

“Aereo assigns an individual antenna to each user. No two users share the same antenna at the same time, even if they are watching or recording the same program,” Droney explained.

Not so fast, countered Chin. Aereo transmits “programming without the authorization of the copyright holders and without paying a fee.” And its technology is “a sham,” he said.

Aereo has “no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The Copyright Act gives copyright holders the exclusive right “to perform the copyrighted work publicly,” which means “in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”

Chin favorably cited a 2012 preliminary injunction order from the opposite coast involving Aereokiller, a not subtly named Aereo competitor.

In that case, Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, Judge George Wu of the U.S. District Court for the Central District of California blocked a broadcast-TV-to-Internet service. Like Chin, Wu found that the broadcasters’ exclusive public performance rights had been violated.

The California decision is on appeal and currently being briefed at the U.S. Court of Appeals for the Ninth Circuit. Numerous amici have filed briefs.

The Second Circuit is considering whether to rehear the Aereo case en banc. Chin’s forceful dissent and the fact that one of the judges in the majority was visiting make the full court’s review more likely. Numerous amici have also filed briefs in the Second Circuit.

No matter what happens in either circuit (or in related litigation popping up as Aereo and copycat services expand), a Supreme Court petition is likely, given the financial stakes on both sides.

If the split in authority holds, the issue could be attractive to the Supreme Court. It could also warrant review as an important federal issue affecting a significant industry and consumers nationwide.

Congress could also step in to either nix or allow Aereo-like service by amending the Copyright Act.

FOX’s parent company has stated publicly that it would consider making FOX a pay channel if Aereo is allowed to continue. At least one other network is hedging its bets.

In April, CBS announced that it had purchased a minority interest in Syncbak, which streams broadcast programming live to various devices, in partnership with local television stations.

If other networks follow suit and look for new options, consumers could end up winning, regardless of who wins in court.

Circuit Split Watch: Will the Court Bury Casket Cases?

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

Circuit Split Watch: Gun Rights Outside the Home

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

2-Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

4-Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Circuit Split Watch: Press Access Not a Slam Dunk

This article first appeared in the December 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over press access to polling places. The Pittsburgh Post-Gazette, the largest newspaper in Western Pennsylvania, recently lost a challenge to access restrictions in the U.S. Court of Appeals for the 3rd Circuit and plans an appeal to the Supreme Court.

Under Pennsylvania law, “All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers ... must remain at least ten (10) feet distant from the polling place during the progress of voting.”

The Post-Gazette argues that this restriction, when applied to the media, violates the First Amendment’s free-press guarantee. The topic of press access was especially sensitive this year, with the controversy surrounding Pennsylvania’s new voter ID law and how it would be applied.

On October 9, Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania dismissed the Post-Gazette’s lawsuit in PG Publishing Co. v. Aichele.

Reporters “have no constitutional right to enter a polling place to gather news,” Judge Fischer found. The distance protects voters from being distracted or harassed.

Ten feet is “the vertical distance between a basketball court and a basketball hoop,” she wrote. “Anyone who has seen a player slam dunk knows that ten feet is not an insurmountable distance.”

Judge Fischer acknowledged a contrary 6th Circuit decision from 2004 and rejected its reasoning.

Just days before the 2012 election, on November 1, the 3rd Circuit affirmed Judge Fischer’s opinion in a short, unanimous judgment, noting that it would explain its reasoning in a later opinion.

In Beacon Journal Publishing Co. v. Blackwell, the 6th Circuit case, the Akron Beacon Journal newspaper sued the Ohio secretary of state over a directive barring reporters from polling places during voting. Ohio law states that only voters, election officials, police officers and the like are allowed. The paper asserted that the law had not previously been read to bar reporters.

Judge Eric Clay’s opinion for the 2-1 majority stressed that “[d]emocracies die behind closed doors,” quoting an earlier case.

Under the First Amendment, Judge Clay ordered officials to grant “reasonable access to any polling place for the purpose of news-gathering and reporting so long as [reporters] do not interfere with poll workers and voters as voters exercise their right to vote.”

Frederick Frank, an attorney for the Post-Gazette, recently pointed to the circuit split and indicated that the paper will appeal its 3rd Circuit loss.

The case “raises a significant constitutional issue, which the United States Supreme Court should address, and has not directly addressed, which is the right of reporters to report on the election process,” Frank said, in a Post-Gazette article.

Two items to watch as the appeal moves forward:

First, the Supreme Court would almost certainly prefer to consider the case with the benefit of the lower appellate court’s reasoning. Depending on when it comes out and what it says, the 3rd Circuit’s explanatory opinion could change the timing and analysis of the petition for certiorari. The time to file runs from the November 1 judgment, but the Post-Gazette could seek extensions, if needed.

Second, the Supreme Court may want to let the press-access issue develop further in the lower courts before granting certiorari, particularly because the pressure of the election season has passed for now.

Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

This article first appeared in the October 31, 2012, issue of the National Law Journal’s Supreme Court Insider.

Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.

A former clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell served as a federal district judge in Utah from 2002-2007. He is currently a professor at the University of Utah’s S.J. Quinney College of Law. With the assistance of law students in the Utah Appellate Clinic, Cassell has been involved in litigation throughout the country on behalf of victims.

Under 18 U.S.C. § 2259, child pornography victims are entitled to restitution from defendants for losses in several listed categories, among them: medical expenses, therapy costs, lost income, attorneys’ fees, and “any other losses suffered by the victim as a proximate result of the offense.”

The last phrase is the source of the circuit split.

On October 1, in a win for Cassell, the en banc 5th Circuit concluded that the “proximate result” requirement applies only to the last category, “any other losses.” The 5th Circuit acknowledged that its reading of the statute splits with “[a]ll our sister circuits that have addressed this question.”

Eight federal appellate courts have held that proximate cause applies to all losses. Put another way, there must be some direct link between the defendant’s offenses and the victim’s losses.

The split has important consequences.

Under the majority approach, it is more difficult for victims to collect. Defendants who possess or transport images may not cause a direct loss in the same way that producers of images do. The defendants in the 5th Circuit were guilty of possession, making them harder to reach for restitution.

On October 24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed its precedent and expressly declined to adopt the 5th Circuit decision.

In an earlier appeal in the same matter, the 9th Circuit said that “the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants . . . are held liable for the harms they cause through their participation in the market for child pornography.”

In its October 24 opinion, the 9th Circuit also raised the possibility of Supreme Court intervention.

Both the 5th and 9th Circuit decisions could be appealed to the Supreme Court soon. The clear split on an important, recurring issue of federal law makes them cases to watch. A former federal judge’s participation also gives the split greater visibility.

Work continues in other cases, as well.

According to the Utah College of Law website, quoting one of Cassell’s students, the 5th Circuit decision “came down in our favor about seven minutes before Professor Cassell got up to argue [on restitution before the 7th Circuit]. That decision changed the face of the argument and the feeling in the courtroom.”

The case was argued on October 1 in a special 7th Circuit sitting at the University of Notre Dame Law School and is pending.

Circuit Split Watch: Earning a Return on Seized Money

This article first appeared in the October 3, 2012, issue of the National Law Journal’s Supreme Court Insider.

When the United States seizes and later returns a person’s money, the question arises: Who should get the interest earned while it was in the hands of the government?

In September, the U.S. Court of Appeals for the 3rd Circuit joined the majority in a multi-circuit split on this issue, which centers on competing views of sovereign immunity. The Supreme Court could be asked to weigh in on the question.

Ryan James Craig was convicted of wire fraud and failure to appear at trial in the U.S. District Court for the Middle District of Pennsylvania. The court ordered him to pay restitution and a special assessment totaling almost $13,000. The federal government had already seized over $16,000 from Mr. Craig, who moved to reclaim the excess money.

After significant legal wrangling, including an appeal to the 3rd Circuit, the government returned the excess money. Craig had another restitution order against him in Rhode Island, and the government had wanted the excess money transferred there. However, since the cases were unrelated, it was ultimately determined on appeal that the excess should be returned to Craig.

Craig then brought a motion for interest against the United States, on the amount returned. The district court denied the request and, on appeal, the 3rd Circuit agreed.

Writing for a unanimous panel in United States v. Craig on September 17, Judge Thomas Hardiman looked first to 28 U.S.C. § 2465, an asset forfeiture statute that allows for recovery of interest from the United States, under certain circumstances. Craig, he concluded, did not meet the statutory requirements. In addition, Judge Hardiman determined that Federal Rule of Criminal Procedure 41(g), which deals with return of seized property, does not cover interest.

Hardiman also examined the possibility of recovery as a matter of fairness and equity, citing decisions from seven other federal appellate circuits. Three allow equitable interest claims against the United States, while four do not, Hardiman stated.

The 3rd Circuit reasoned that equity cannot “abrogate the sovereign immunity of the United States”; only express waiver can. An earlier 3rd Circuit opinion had questioned the minority view, but, unlike the recent opinion, it was not precedential.

On the other side of the split, Hardiman cited Carvajal v. United States, among other cases. In Carvajal, a 2008 decision from the 9th Circuit, the government seized from and subsequently returned $75,800 to an individual.

Judge Susan Graber, also writing for a unanimous panel, indicated that interest is simply part of the property that needs to be returned. Sovereign immunity is not a barrier.

If the United States seized a pregnant cow and later, after the cow had given birth, the seizure was found to be in error, the government could not give back the cow and keep the calf, Graber explained, quoting an earlier 9th Circuit decision. Likewise, the government needs to return interest from an improper seizure.

The Supreme Court could soon be asked to resolve the conflict. First, though, there is a pending petition for rehearing en banc in the 3rd Circuit.

“As this Court noted in its opinion in this case,” Craig argued in his petition, “there is a split among other United States Courts of Appeal[s].”

Circuit Split Watch: When Sanctioned Attorneys Can't Pay

This article first appeared in the August 29, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay. The question has also split conservative and liberal thought leaders, in unexpected ways. The Supreme Court, which recently decided another costs case, could be asked to resolve the split.

Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit, a respected conservative jurist, has at least two suggestions for errant attorneys who cannot afford to pay: Take it up with the bankruptcy court and possibly find a new career.

In 2009, Easterbrook, writing for a unanimous three-judge panel in Shales v. General Chauffeurs Local Union No. 330, explained that a § 1927 violation “is a form of intentional tort….Damages depend on the victim’s loss, not the wrongdoer’s resources.” If the attorney cannot pay the sanction, he could seek relief in bankruptcy. Further, if the attorney “is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm.”

Last month, 9th Circuit Judge Stephen Reinhardt, who has been called a “liberal lion,” rejected the 7th Circuit’s conclusion in Haynes v. City & County of San Francisco. The statute says that the court “may” require an attorney to pay costs, not “must” or “shall”—a clear signal to Reinhardt and the other two panel members that the lower court has discretion to order and adjust costs. He noted that the 2nd Circuit also adopted this “plain meaning” in Oliveri v. Thompson, a 1986 case.

Ordering “sanctions in an amount many times greater than the attorney will ever be able to pay” can be “a futile gesture that does little” to make victims whole, Reinhardt reasoned.

Ironically, the Reinhardt and Easterbrook approaches could be seen as an ideological swap, with the liberal Reinhardt playing the role of textualist and the conservative Easterbrook looking for context outside the words.

While costs will never grab the headlines in the way that affirmative action, same-sex marriage, and other cases in the Supreme Court’s current inbox will, they have gotten the Court’s attention as a day-to-day part of litigation that affects many people.

In May, the Supreme Court decided a costs case involving a different statute. Taniguchi v. Kan Pacific Saipan, Ltd. clarified that costs awarded for interpreters include only oral translation expenses. Like the pending attorney-costs split, Taniguchi also involved a split between the 7th and 9th Circuits—resolved in the 7th Circuit’s favor. (This column previously highlighted Taniguchi.)

Before the attorney-costs issue can reach the Supreme Court, though, there may be a rehearing en banc.

The sanctioned attorney has indicated that he intends to seek rehearing. Although he won on the possible reduction of costs (to be determined on remand by the district court), the 9th Circuit opinion also said that he “engaged in a wide variety of incompetent and unprofessional actions.” The circuit issued a separate unpublished memorandum opinion to that effect.

The 9th Circuit has set an October deadline for his petition.

Circuit Split Watch: Can Drug Companies Pay for Delay?

This article first appeared in the August 1, 2012, issue of the National Law Journal’s Supreme Court Insider.

When a drug company pays a manufacturer to delay launching a generic, is it the act of an illegal monopoly or merely a settlement benefiting both parties?

The U.S. Court of Appeals for the 3rd Circuit recently ruled on these so-called “pay-for-delay” deals, splitting from three other circuits. If not revised en banc, the decision will likely warrant Supreme Court review.

Schering-Plough (now Merck) manufactures K-Dur, a patented high blood pressure medication. More than a decade before Schering’s patent was set to expire, two manufacturers attempted to enter the market early via generic versions of K-Dur. Schering sued for patent infringement.

The parties settled the patent cases. The manufacturers agreed not to bring the generics to market for several years, while Schering agreed to pay them millions. Supporters argue that such agreements are simply dispute settlements, which courts generally favor.

The Federal Trade Commission disagrees. According to the FTC website, pay-for-delay deals are a top priority for the agency, since they are “anticompetitive” and “cost consumers and taxpayers $3.5 billion in higher drug costs every year.” The FTC filed an amicus brief in the 3rd Circuit, in support of plaintiffs challenging the K-Dur agreements.

Those plaintiffs include CVS, Rite Aid, wholesale drug companies, and others. They argue that pay-for-delay deals violate antitrust law and prevent competitive pricing.

On July 16, a unanimous three-judge 3rd Circuit panel deciding In Re: K-Dur Antitrust Litigation found that pay-for-delay deals are “prima facie evidence of an unreasonable restraint of trade.” Showing that the payment has a purpose other than delaying generic entry or has some pro-competitive benefit can rebut this evidence.

The 3rd Circuit rejected the “scope of the patent test” adopted by the Federal, 2nd, and 11th Circuits. (The Federal Circuit, with its specialized docket, is not frequently involved in circuit splits, but this case is an exception.)

The court also pointed to other circuit cases, but acknowledged that they did not address settlement of patent litigation, the backdrop of the K-Dur fight.

The patent-scope test accepted in other circuits focuses on the patent holder’s exclusive rights to the patent before it expires. If a patent holder company can exclude everyone else during that period, why can’t it fend off litigation to protect its exclusivity?

Citing an NYU Law Review article, the 3rd Circuit said that “this approach nominally protects intellectual property, not on the strength of a patent holder’s legal rights, but on the strength of its wallet.”

“Many patents,” the 3rd Circuit explained, “are later found to be invalid or not infringed.” A pay-for-delay deal preserves a monopoly “without any assurance that the underlying patent is valid.” It is in the public interest to judicially test and eliminate weak patents, the court wrote.

Because of the circuit split, the tremendous financial stakes, and the FTC’s pay-for-delay priority, the 3rd Circuit decision could very well catch the Supreme Court’s attention, unless it is reversed en banc.

The Supreme Court has declined to review cases that accepted the patent-scope test, which may indicate that the Court does not object to the test and perhaps sees it as the companies do—as allowing settlement. The Court could, of course, reach a different result after briefing and argument.

*Update: On August 3, after this article was originally published in the National Law Journal, Merck gave notice to the 3rd Circuit that it intends to proceed directly to the Supreme Court with a petition for certiorari.

Circuit Split Watch: Miranda at Booking

This article first appeared in the July 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a suspect’s name and address, without giving a warning. But what about booking questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in the federal appellate courts about the routine booking exception. The Supreme Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest and in the back seat of a police cruiser, incident to an earlier discussion and chase with police. One of the officers noticed that Alford was “kind of squirming” in the back seat. At their destination, police searched the vehicle and found a clear plastic bag with pills and a computer thumb drive under the back seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if the thumb drive, found just under the bag of drugs, was his. Alford said yes, and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission about the thumb drive to link him to the ecstasy. He was convicted of drug possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court for criminal cases, rejected a Miranda challenge by Alford. The police inquiry about the thumb drive, the court held, was permissible as a booking question related to inmate property storage.

Alford filed a petition for certiorari with the Supreme Court, writing that the federal appellate courts “are deeply conflicted in their understanding and interpretation of the routine booking question exception to Miranda.”

The petition describes three approaches, with Texas in the minority.

Five federal appellate courts use a “should have known” standard, meaning that when an officer should have known that a booking question was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other words, the officer must intend his questions to yield incriminating information to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the “legitimate administrative function” test, which is that if the booking inquiry “is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many state high courts.

Texas waived its right to respond to Alford’s petition. However, the Supreme Court requested a response, due July 12. While a response request does not guarantee that the Court will hear the case, it does show that the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic, all former Supreme Court clerks, are on Alford’s petition, including professors Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber are also on the petition, along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively reviewing all federal appellate and state high court decisions. Professor Ortiz confirmed that a student identified Alford from reading Texas cases.

Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

This article first appeared in the June 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Could the Computer Fraud and Abuse Act be used to “turn ordinary citizens into criminals”? Or is this fear based on “far-fetched” and “wacky hypotheticals”?

Yes and yes, say the majority and dissent in United States v. Nosal, a recent 9-2 decision of the U.S. Court of Appeals for the 9th Circuit, sitting en banc. Chief Judge Alex Kozinski, writing for the majority, acknowledged that its reading of the CFAA splits from other federal appellate court decisions. A petition for certiorari could be filed this summer.

Employees of an executive search firm allegedly accessed the firm’s computer database to obtain information, which they gave to David Nosal, a former employee. Nosal intended to use the information to compete with the firm.

After this came to light, Nosal was indicted on twenty counts, including trade secret theft, mail fraud, conspiracy, and CFAA violations.

At issue on appeal is the phrase “exceeds authorized access” to a computer under the CFAA.

To Chief Judge Kozinski, access and misuse of information are two separate questions. The employees who allegedly fed Nosal information were authorized to access the firm database. They had permission. The problem was subsequent misuse of firm information. The solution is to prosecute the misuse or look to Congress to amend the CFAA, not to imagine words that are not there.

Otherwise, Kozinski said, scores of unsuspecting people who are authorized to use their work computers for business only, under computer-use policies, but check sports news, send personal emails, or engage in other non-work uses, even occasionally, could be guilty of a federal crime—exceeding authorized access.

Kozinski was also concerned that violating particular sites’ terms of use could be criminalized. For instance, eHarmony’s terms of use prohibit giving “inaccurate, misleading or false information.” Saying that you are “‘tall, dark, and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit,” Kozinski surmised.

Kozinski noted that the majority’s reading of the CFAA veers from 5th, 7th, and 11th Circuit decisions and invited those circuits to reconsider.

Judge Barry Silverman, in dissent, was unimpressed.

This case is not about “playing sudoku, checking email, fibbing on dating sites, or any of the other activities” the majority discussed, Judge Silverman wrote. It is about “stealing an employer’s valuable information to set up a competing business with the purloined data.” The majority’s “far-fetched” and “wacky hypotheticals” miss the point.

Nosal’s co-conspirators were authorized to be in the firm system for firm business, not to steal its information. Silverman gave this example: “A bank teller is entitled to access a bank’s money for legitimate banking purposes, but not to take the bank’s money for himself.”

Other circuits got it right, Silverman explained. Those courts found that authorized access had been exceeded under the CFAA when a Citigroup employee used information from a company database to commit fraud, a Social Security Administration employee tracked old flames and potential new ones via the SSA system, and an employee of a government contractor used her work access to view then-candidate Barack Obama’s student loan records.

The Obama student loan case, from the 8th Circuit, was not discussed in the majority opinion.

At the request of the United States, the losing party in Nosal, the 9th Circuit stayed its mandate pending filing of a petition for certiorari. The en banc decision was issued in April, so a petition could be filed with the Supreme Court as late as July.

Abortion Ultrasound Cases (Updates and Correction)

The last Circuit Split Watch article addressed pre-abortion ultrasound laws in three states and a developing circuit split. Updates and a correction:

The cases challenging the North Carolina and Oklahoma laws are still pending. As noted in the article, former acting Solicitor General Walter Dellinger is now counsel in the North Carolina case, signaling its possible Supreme Court track.

The Texas case is essentially over, though, and the ultrasound law there has gone into effect. The only ongoing dispute is about attorneys' fees.

Following the Fifth Circuit ruling discussed in the article, which vacated a preliminary injunction against the Texas law, and later, the denial of rehearing en banc, the plaintiffs did not appeal to the U.S. Supreme Court. (Their window to appeal closed earlier than reported in the original article, due to further action in the district court; see below. In any case, plaintiffs did not ask the Supreme Court to step in.)

On remand from the Fifth Circuit, the district court judge entered summary judgment for the state defendants. However, he did so unconvinced, explaining that "the legal principles articulated by the [Fifth Circuit] left little room for meaningful discussion." The plaintiffs did not appeal that summary judgment ruling to the Fifth Circuit.

The Center for Reproductive Rights represents plaintiffs in the Texas, North Carolina, and Oklahoma cases. One can only assume that it saw the North Carolina and Oklahoma cases as better vehicles.

Although the Texas case is over, it remains significant—one side of a developing circuit split that could very well end up at the Supreme Court.

Circuit Split Watch: A New Abortion Battleground

This article first appeared in the April 30, 2012, issue of the National Law Journal's Supreme Court Insider.

In a matter of days, a new battle over abortion could reach the U.S. Supreme Court. At issue is whether states can require doctors to perform ultrasounds on women seeking abortions, and to display and describe the fetal images to them. Federal courts have recently split on the question.

According to an April report from the Guttmacher Institute, a pro-choice think tank, more than twenty states regulate pre-abortion ultrasounds. But provisions vary, ranging from written information provided to mandatory ultrasounds. Three states, North Carolina, Texas, and Oklahoma, have the most stringent requirements.

Under North Carolina law, the doctor must perform an ultrasound on a woman seeking an abortion and then display images from the ultrasound to her, noting “the presence, location, and dimensions of the unborn child” and describing “external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers challenged the constitutionality of the law in Stuart v. Huff.

Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina preliminarily enjoined the “speech-and-display requirements,” as she called them.

“The First Amendment,” Judge Eagles wrote, “generally includes the right to refuse to engage in speech compelled by the government.” The North Carolina law requires speech via words and imagery, “even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it,” she said.

Eagles also found “no medical purpose” in the speech-and-display requirements.

An order in the case, denying intervention of additional parties, is on appeal at the U.S. Court of Appeals for the 4th Circuit, but the case itself remains before the district court in North Carolina. A trial is set for January 2013.

Walter Dellinger, a prominent Supreme Court advocate with O’Melveny & Myers, who served as acting Solicitor General of the United States, recently entered an appearance in the 4th Circuit for the plaintiffs, opposing intervention. Dellinger’s involvement, in what could be considered a side issue, signals the high-profile nature of the case as a whole and its possible Supreme Court track.

Like North Carolina, Texas also has a mandatory ultrasound law with speech-and-display requirements. However, a federal appeals court has upheld the Texas law.

Writing for a unanimous three-judge panel in Texas Medical Providers Performing Abortion Services v. Lakey, Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit declared that the “disclosures of a sonogram . . . and [its] medical descriptions are the epitome of truthful, non-misleadling information,” a reference to language in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 Supreme Court decision.

Chief Judge Jones maintained that the Texas disclosures are “more graphic and scientifically up-to-date,” but “not different in kind” than those “discussed [and approved] in Casey—probable gestational age of the fetus and printed material showing a baby’s general prenatal development stages.”

Jones rejected what she saw as the assumption that Casey is “a constitutional ceiling for regulation of informed consent to abortion, not a set of principles to be applied to the states’ legislative decisions.”

The 5th Circuit denied rehearing en banc in February. As a result, a petition for certiorari must be filed with the Supreme Court by May, absent an extension.

Although the federal circuit split is still developing, the Supreme Court may decide to review the ultrasound question, because of its nationwide importance. From the Court’s action in the coming months, whatever that action is, other states will take cues about their boundaries in the future.

A state trial court in Oklahoma recently struck down that state’s ultrasound law, which also includes speech-and-display requirements.

Circuit Split Watch: Graphic Tobacco Warnings

This article first appeared in the April 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

The Family Smoking Prevention and Tobacco Control Act requires that color images, along with written warnings, cover the top half of all cigarette packs, front and back, and 20 percent of advertising. Among the images are diseased lungs, a cadaver with a stapled chest, and a smoker breathing through a hole in his throat.

Tobacco companies have challenged these graphic warnings in federal court, yielding, in recent weeks, split results that could lead to U.S. Supreme Court review.

Although the images are grim, the reality is grim, too, supporters argue.

The Act reports that use of tobacco “is the foremost preventable cause of premature death in America. It causes over 400,000 deaths in the United States each year, and approximately 8,600,000 Americans have chronic illnesses related to smoking.”

In a video posted on YouTube, “New Cigarette Health Warnings: Protecting Public Health,” Health and Human Services Secretary Kathleen Sebelius declares that the graphic images “tell the truth” about the negative health effects of smoking more effectively than words alone. Put another way, a picture is worth a thousand words.

But, do these graphic pictures go too far? Judge Richard Leon of the U.S. District Court for the District of Columbia thinks so. Granting summary judgment to the tobacco companies on February 29 in R.J. Reynolds Tobacco Co. v. FDA, Judge Leon said that the images violate the companies’ First Amendment rights by forcing them to be “the Government’s mouthpiece.” To salvage the warnings, which it views as constitutional, the FDA appealed. Oral argument is set for April 10 at the U.S. Court of Appeals for the D.C. Circuit.

On March 19, the U.S. Court of Appeals for the Sixth Circuit came to a different conclusion, by a 2-1 vote in Discount Tobacco City & Lottery, Inc. v. United States. Judge Jane Stranch, writing for herself and Judge Michael Barrett of the Southern District of Ohio, sitting by designation, upheld the graphic warnings. Judge Eric Clay dissented.

The format of the Sixth Circuit decision is unusual in that there are two majority opinions, each covering various issues. The Stranch opinion contains the majority ruling on the graphic warnings. The majority looked to the words of the Act requiring color images, analyzing the case as a facial challenge, while the dissent also took the actual images, which were chosen later, into account.

Judge Stranch noted that the current textual warnings are not effectively reaching many people, such as the key youth population.

“A warning that is not noticed, read, or understood by consumers does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” Stranch explained.

Judge Clay disagreed, referencing the D.C. district court decision. Clay found that the government had not demonstrated that the graphic warnings are “reasonably tailored.” Instead, they play on fear and “attempt to flagrantly manipulate the emotions of consumers.”

Responding to an email inquiry about whether the tobacco companies intend to seek rehearing en banc from the Sixth Circuit or appeal directly to the U.S. Supreme Court, one of the companies’ attorneys, Floyd Abrams of Cahill Gordon & Reindel in New York City, stated that all options are under consideration.

Even if the case is reheard en banc at the circuit level, the Supreme Court is almost certain to have the final say. Because a federal statute with nationwide economic and health implications is at stake, it is likely that the issue would garner the Court’s attention.

The graphic warnings were to have taken effect in September 2012, but that date is now uncertain due to the ongoing litigation, according to an FDA statement on its website.