Friday, February 28, 2020

YouTube Does Not Perform a Traditional & Exclusive Public Function

On Wednesday, the Ninth Circuit ruled in favor of Google/YouTube against PragerU. PragerU is a conservative organization that creates and publishes educational videos online—primarily on YouTube. PragerU sued YouTube for "suppressing" PragerU's free speech because YouTube set some of PragerU's videos to "Restricted Mode." YouTube, as a private company, is not bound by the First Amendment. However, PragerU attempted to use the "traditional and exclusive" public function test to shoehorn YouTube as a state actor because YouTube designates its property to be used as a "public forum." The Ninth Circuit didn't buy it.

“YouTube may be a paradigmatic public square on the Internet, but it is ‘not transformed’ into a state actor solely by ‘provid[ing] a forum for speech.’” Prager Univ. v. Google LLC, No. 18-15712, 2020 WL 913661, at *3 (9th Cir. Feb. 26, 2020) (quoting Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019)).

Opinion: or Prager Univ. v. Google LLC, No. 18-15712, 2020 WL 913661 (9th Cir. Feb. 26, 2020) (Westlaw Hyperlink).

News Article:

Wednesday, January 8, 2020

More Civil Rights News

For those of you who wrote your opinions on Savory, the case on whether the Heck bar is removed upon release or upon pardon: The en banc Seventh Circuit held (over one dissent) it lifts upon the pardon (the favorable termination) rather than upon release from custody (when habeas runs out). The analysis is interestng, tying Heck in part to preclusion and the preclusive effect that the in-tact conviction has on the § 1983 claim.

Tell your friends this will be on the list when Civil Rights is offered next year.

Friday, December 20, 2019

Class ends, but civil rights don't

Two items of interest, even with class over:

1) Remember Kaczmarek v. Penate and whether the assistant AG enjoyed absolute immunity for failing to disclose certain documents? Penate sued many, many more people over his prosecution. He also sued the lab supervisor, but the First Circuit held he was entitled to qualified immunity.

2) The film Just Mercy (to be released on Christmas Day) tells the based-on-a-true-story of attorney Bryan Stevenson's representation of Walter McMillian, who was wrongfully convicted for murder in Alabama and exonerated with Stevenson's help. McMillian was the plaintiff in McMillian v. Monroe County, in which the Court held that a county sheriff is a state rather than local official for 11th Amendment purposes.

Wednesday, December 18, 2019

Arguments 2019

Great job today.

After the jump are links to individual arguments, linked by case name. You will have to login with your Panthersoft name and ID. You also can go through, go to "Public," then "College of Law, then "Law Oral Arguments," then "Civil Rights Arguments 2019."

Enjoy your break.

Monday, December 16, 2019

Arguments Moved

To the Large Courtroom, RDB 1000.

Thursday, December 12, 2019

Argument Prep

Some places to listen in prepping for next week:

Oyez: List of 2019-20 cases; clicking the link for a case will take you to a page that includes argument audio.

FIU Media Site: Last year's combined Civil Rights/Fed Courts arguments and 2018 Civil Rights arguments. You will need to log in with your FIU username and password (the same as for, e.g., Panthersoft).

A 3-minute encapsulation of what not to ever, ever do in an oral argument.

Saturday, November 23, 2019

Civil rights in the news

If you need a break from working on your opinions:

A state court judge held a litigant in contempt when the litigant had a seizure and did not respond to the court's commands; deputies surrounded her, handcuffed her limp body, and took her into custody.

• SCOTUS granted cert in Tanzin v. Tanvir, the RFRA challenge to placement on the no-fly list. Argument will be later in spring. Something to watch, even after you are out of the course.

Oral Arguments (Updated)

Standing Order on Procedure.

Schedule of Oral Arguments for Wednesday, December 18.

 Also, here is the oral argument in Hernandez v. Mesa; worth a listen for those of you doing the case.

Thursday, November 21, 2019

Procedure Reax Papers

Here, here, and here.

For Monday

Wednesday audio--Part I, Part II.

We continue with Remedies: Damages. What is the causation problem for getting damages for a wrongful conviction? What is the alternative recovery mechanism, given these causation problems?

Then move to Attorney's Fees and the final review puzzles. Go back and review Noah C. and consider what remedies he might be able to obtain, including attorney's fees.

Monday, November 18, 2019

For Wednesday (Updated)

Monday audio--Part I, Part II. Procedure Reax Papers due Wednesday. Abstention and Remedies Papers due when you arrived for arguments.

A few final words on Puzzle # 3 and the rest of the  Younger analysis. Look at the complaint in Masterpiece Cakeshop II and do the Younger analysis, especially in light of the allegations in the complaint.

Then move to Rooker-Feldman. What is the logic and textual basis for that doctrine? When does it apply? Does/Should it apply to appeals from non-final judgments of state courts? What is the connection and distinction between Younger and Rooker-Feldman? Do the RF Puzzles and the Abstention Review Puzzles. Don't worry about a catch-all puzzle.

Then move to Remedies: Damages and Retroactive Relief.

Friday, November 15, 2019


The SPOTS evaluation form are available online. Although we will not take class time, I encourage everyone to take the 10-15 minutes to complete the survey. As a law school and as individual faculty members, we welcome and rely on student feedback on our classes, materials, and teaching.

Thursday, November 14, 2019

For Monday

Wednesday audio (note that it is in a zip, so you have to download and uncompress). Procedure papers due next Wednesday. Be ready to tell me who represents which party and who is chief on your cases.

We continue with Statutory Abstention. What limits are there on the application of § 1341 and § 7421, based on the text and purpose of the statute. If an injunction is not possible, how does one challenge an invalid tax?

Then move to Younger. In addition to the assigned, read the Younger analysis in the Second Circuit decision on President Trump's attempt to stop the Manhattan District Attorney from subpoenaing records from the President's accountants. How is Younger different than Ex Parte Young from the standpoint of equity? What is the current analysis for Younger after Sprint and Middlesex? From considerations of a federal forum, what is the argument against extension of Younger beyond criminal proceedings?

Tuesday, November 12, 2019

On Good Judicial Writing

For your opinions and everything else you write in law school and as a lawyer. I do not endorse everything the author says (I find Chief Justice Roberts tries too hard to be clever). But the general points stand--avoid legalese, strip your writing down by avoiding unnecessary phrases and throat-clearing, say it in 5 words instead of 15, do not hedge. Take the time to edit and revise and shorten and sharpen.

Thursday, November 7, 2019

Sovereign Immunity Reax Papers


For Wednesday (Updated)

Wednesday audio (reposted)

We will continue and finish Procedure, so prep the rest of Chapter 7. In addition, consider the facts of McDonough v. Smith, decided last term:

McDonough was targeted for investigation by a special prosecutor, allegedly based on fabricated evidence, fabricated affidavits, false testimony, and faulty DNA analysis. A grand jury indicated McDonough on multiple felonies based on that evidence. A first trial, also based on the fabricated evidence, ended in a mistrial; a second trial ended in an acquittal on December 21, 2012. Plaintiff filed his § 1983 action, alleging that the prosecution based on fabricated evidence violated procedure due process, on December 18, 2015; the incorporated statute of limitations is 3 years. Is the action timely?

Then move to Abstention, covering Introduction (which requires review of the statutes and reading on equitable procedure from Chapter 7) and Pullman. What is abstention? Is it permissible for courts to create this doctrine? What is the difference between abdication of jurisdiction and postponement of jurisdiction? What is happening in Pullman and why did the Court hesitate to decide the constitutional issue? Why the preference for sub-constitutional resolution? Why should that be done by the state court?

Just to be safe, go on to Statutory Abstention and § 2283.

Wednesday, November 6, 2019

Good faith immunity for private litigants

You should recall that in the section no under color, we discussed the litigation of Janus v. AFSCME, the challenge to the collection of agency fees by public unions from non-members. In 2018, SCOTUS held that statutes requiring the payment of fees violated the First Amendment. On remand, plaintiffs sought to recoup fees paid in the past.

The Seventh Circuit just decided the question. It held that the Union acts under color under Lugar and similar cases. But it also held that private defendants acting under color, while not entitled to qualified immunity, enjoy good-faith immunity. The Union successfully claimed the defense, because it collected fees in reliance on state law and SCOTUS precedent.

Worth a read.

Tuesday, November 5, 2019

Argument on abrogation of sovereign immunity

In Allen v. Cooper, SCOTUS is considering whether Congress could abrogate sovereign immunity through copyright law. Argument was Tuesday; here is the transcript of the argument. Much of this is outside our 11th Amendment focus. But there is some discussion of how to build a § 5 record and the availability of "as-applied" abrogation as seen in US v. Georgia. There also is some interesting discussion of how suit against the infringing officers, who would enjoy sovereign immunity, should affect the availability of a suit against the state.

Worth a read. The Court will make audio available on Friday afternoon.

Monday, November 4, 2019

For Wednesday

Monday audio. Eleventh Amendment Reax Papers due Wednesday. I will try to have Muni papers back on Wednesday. Go to 2007; if it is still a sauna, go back to 1008. Class will begin Wednesday at 1:35, giving everyone enough time to get from the talk.

Do not forget about Judge Roth's talk at 12:30-1:30 Wednesday in the Large Courtroom. Come armed with questions. Again, we will begin at 1:35.

We move to Competing Vehicles and Preclusion (don't bother with Limitations until next week). What are the differences between § 1983 and Habeas? Why have Heck draw a sharp distinction between them? What does "necessarily imply" mean?

What are the requirements of preclusion and how does that apply to § 1983 claims? How do you reconcile Migra and Allen?

Wednesday, October 30, 2019