Month: May 2022

From the Supreme Court today in Netchoice, LLC v. Paxton; this isn’t a decision on the merits, but only a decision on whether the Texas social media viewpoint neutrality law should be stayed pending appeal. The district court, which said the law was likely unconstitutional, had said stay; the Fifth Circuit, which hasn’t yet announced a decision on the merits, had said no stay; the Supreme Court, again without a decision on the merits, says stay (again, pending appeal).

Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kavanaugh, and Barrett voted to vacate the Fifth Circuit’s decision “staying the district court’s preliminary injunction.”

Justice Kagan voted to deny the application to vacate the stay (with no further comment).

Justice Alito, joined by Justices Thomas and Gorsuch, voted against a stay, and wrote this dissent:

This application concerns issues of great importance that will plainly merit this Court’s review. Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.

The law in question, HB20, regulates “social media platform[s]” that are “open to the public;” that “enabl[e] users to communicate with other users for the primary purpose of posting information, comments, messages, or images;” and that have at least “50 million active users in the United States in a calendar month.” Section 7 of HB20 prohibits these platforms from “censor[ing]” users based on viewpoint, and §2 requires covered platforms to disclose certain information about their business practices, including an “acceptable use policy” and “a biannual transparency report.” These platforms must also establish procedures by which users can appeal a platform’s decision to “remove content posted by the user.” …

To be entitled to vacatur of the stay, applicants must show, among other things, a “substantial likelihood of success on the merits.” Members of this Court have argued that a determination regarding an applicant’s likelihood of success must be made under “existing law.”

And whether applicants are likely to succeed under existing law is quite unclear.

The law before us is novel, as are applicants’ business models. Applicants claim that §7 of HB20 interferes with their exercise of “editorial discretion,” and they maintain that this interference violates their right “not to disseminate speech generated by others.” Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (parade organizer); Miami Herald Publishing Co. v. Tornillo (1974) (newspaper). But we have rejected such claims in other circumstances. For example, in PruneYard Shopping Center v. Robins (1980), we rejected the argument that the owner of a shopping mall had “a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” And in Turner Broadcasting System, Inc. v. FCC (1994), we declined to apply strict scrutiny to rules that “interfere[d] with cable operators’ editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations.” See generally E. Volokh, Treating Social Media Platforms Like Common Carriers? 1 J. Free Speech Law 377 (2021).

It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law. First, Texas contends that §7 does not require social media platforms to host any particular message but only to refrain from discrimination against a user’s speech on the basis of “viewpoint,” and in this respect the statute may be a permissible attempt to prevent “repression of [the freedom of speech] by private interests,” Associated Press v. United States (1945).

Second, Texas argues that HB20 applies only to platforms that hold themselves out as “open to the public,” and as neutral forums for the speech of others. {Texas also suggests that applicants’ position in this litigation is in conflict or tension with the positions of its members in cases regarding the interpretation of §230 of the Communications Decency Act of 1996, 47 U. S. C. §230. That statute directs, among other things, that “[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Texas claims that “[w]hen the platforms resort to section 230’s protections … they are relying on Congress’s determinations that they are not the ‘publisher’ of their users’ content, and that they are not ‘responsible’ for that content in any respect. And Texas suggests that, given that many of applicants’ members have emphasized their “‘neutral[ity]'” and their function as “‘conduits'” for the speech of their users, the Court should view their assertions of a First Amendment right to engage in “‘editorial discretion'” with some skepticism.} These representations suggest that the covered social media platforms—like the cable operators in Turner—do not generally “‘convey ideas or messages [that they have] endorsed.'”

Third, since HB20 is limited to companies with “50 million active users in the United States,” Texas argues that the law applies to only those entities that possess some measure of common carrier-like market power and that this power gives them an “opportunity to shut out [disfavored] speakers.” Turner; see also Biden v. Knight First Amendment Institute at Columbia Univ. (2021) (Thomas, J., concurring). If anything, Texas submits, its arguments regarding the constitutionality of §2’s disclosure requirements are even stronger. The State notes that we have upheld laws requiring that businesses disclose “purely factual and uncontroversial information about the terms under which [their] services will be available,” so long as those requirements are not “unjustified or unduly burdensome.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985). If we were to agree with the applicants’ arguments, the decision could have widespread implications with regard to other disclosures required by federal and state law.

The procedural posture of this case also counsels against vacatur of the stay. Applicants sought pre-enforcement review of the statute in federal court, so it is not clear how state courts would interpret this statute if it were applied to applicants’ businesses; nor has it been resolved which platforms are covered by the law. The statute also includes a broad severability provision, so vacating the stay requires a determination that applicants are likely to be able to show that every provision of HB20 is unconstitutional.

What is more, the attorney general’s enforcement power is limited to prospective relief … [—]”injunctive relief ” and, if granted, “costs,” “reasonable attorney’s fees,” and “reasonable investigative costs” …. In this respect, this statute is quite different from one that authorizes imprisonment or severe monetary penalties for those who refuse to comply. Should the attorney general bring an enforcement action for injunctive relief, applicants would then have an opportunity to argue that the statute violates the First Amendment, whether facially or as applied to them.

I reiterate that I have not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the “changing social and economic” conditions it perceives. But precisely because of that, I am not comfortable intervening at this point in the proceedings.

While I can understand the Court’s apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect. The Court of Appeals, after briefing and oral argument, concluded that the District Court’s order should be stayed, and a decision on the merits can be expected in the near future. I would not disturb the Court of Appeals’ informed judgment about applicants’ entitlement to a stay.

The post Supreme Court Reinstates Stay of Texas Social Media Law (Pending Appeal); Justices Alito Dissents appeared first on Reason.com.

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In this week’s Reason Roundtable, editors Matt Welch, Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie consider the slate of policy prescriptions on offer in the wake of the Uvalde school shooting.

1:21: The gun control debate after Uvalde

27:41: Weekly Listener Question: My question to you pertains to guns and gun culture, specifically “where are the gun nuts?” Where at Reason or elsewhere in the high-profile, opinion journalism world are the people who love guns or at least enjoy being a gun owner, enjoy going to the shooting range or participating in shooting competitions or what have you? Why aren’t they more common among the pro-liberty or even the conservative press? It seems to me that there is a class divide in this country on guns. Upper-middle to upper class urban dwellers (such as the media class) all seem to hate guns and do not partake in gun culture, while more “blue-collar” and, of course, rural Americans are heavily into guns yet get little to no representation in media. Is there a class element to the gun control debate which is not being given proper attention?

49:08: The Libertarian National Convention and the Mises Caucus

1:00:54: Media recommendations for the week

This week’s links: 

“If You Want Protection for Your Loved Ones, Do It Yourself,” by J.D. Tuccille

“Unfazed by the Second Amendment, Democrats Want To Ban Gun Purchases by Young Adults,” by Jacob Sullum

“While Dying Children Called 911 for Help, 19 Uvalde Police Waited in the Hallway. For 45 Minutes.,” by Robby Soave

“There Have Been 13 Mass School Shootings Since 1966, Not 27 This Year,” by Robby Soave

“Mises Caucus Takes Control of Libertarian Party,” by Brian Doherty

“Netflix Airs Ricky Gervais’ Controversial Standup, Chooses Actual Entertaining Over Woke Pandering,” by Liz Wolfe

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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Six years ago, Dallas police officers who ostensibly were trying to help Tony Timpa, a 32-year-old man in the midst of a psychological crisis, ended up killing him instead. Four years later, a federal judge ruled that the cops were protected by qualified immunity, which shields public officials from civil liability unless their alleged misconduct violated “clearly established” law. But last December, the U.S. Court of Appeals for the 5th Circuit overturned that decision, allowing Timpa’s relatives to proceed with their civil rights lawsuit. Today the Supreme Court declined to hear an appeal of the 5th Circuit’s decision, which means the plaintiffs will finally get a chance to make their case.

On a Monday night in August 2016, Timpa called 911 to report that he was “having a lot of anxiety” about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, “You’re gonna kill me!” He was right.

Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa’s predicament and the possibility that they had killed him.

Confronted by these facts, U.S. District Judge David Godbey did not definitively determine whether the officers’ conduct was consistent with the Fourth Amendment’s ban on “unreasonable searches and seizures.” Even if it wasn’t, he said in his 2020 opinion, the law on that point was not clear enough at the time to allow claims under 42 USC 1983, which authorizes lawsuits against state or local officials who violate people’s constitutional rights.

The circumstances of Timpa’s death were similar to the prolonged prone restraint that killed George Floyd in Minneapolis four years later. That case led to a $27 million civil settlement and criminal convictions for Officer Derek Chauvin, who kneeled on Floyd’s neck for nine and a half minutes, and three of his colleagues, who were accused of failing to intervene or provide appropriate medical aid.

In Timpa’s case, by contrast, no charges were filed, and it initially seemed his family’s lawsuit was doomed by qualified immunity, a doctrine that the Supreme Court grafted onto a statute that makes no mention of such an excuse. Godbey’s application of the doctrine vividly illustrated how difficult it can be for plaintiffs to overcome it.

Timpa’s family argued that the Dallas officers’ use of force was clearly unconstitutional under Gutierrez v. City of San Antonio, a 1998 case involving a man who died while restrained face down in the back of a patrol car. In that case, the 5th Circuit allowed an excessive force claim to proceed. In both cases, the lawsuit filed by Timpa’s relatives noted, police knew the detainee was under the influence of cocaine. The 5th Circuit in Gutierrez held that the use of force can be excessive “when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.”

Godbey noted that Timpa, although restrained on his stomach while his hands and feet were shackled, was not hog-tied, which in his view was enough to make Gutierrez inapplicable. He cited three subsequent cases in which the 5th Circuit had blocked excessive force claims against officers who allegedly used deadly prone restraints against resisting detainees.

Godbey likewise was unimpressed by decisions in which five other federal appeals courts had ruled that prone restraints causing death or severe injury did or could qualify as excessive force. Those rulings, he said, did not amount to “a ‘robust consensus’ of persuasive authority,” because the U.S. Court of Appeals for the 8th Circuit reached a different conclusion in a 2020 case involving a man arrested for trespassing who died after St. Louis police officers pinned him face down on the floor of his jail cell. The 8th Circuit ruled that “the Officers’ actions did not amount to constitutionally excessive force,” because they “held [the arrestee] in the prone position only until he stopped actively fighting against his restraints and the Officers.”

Was Tony Timpa “actively fighting” the officers who killed him? Citing the “custodial death report” filed after the incident, his family noted that he “never threatened” the officers, “never resisted being handcuffed,” “never attempted to hit or fight with” them, “never used a weapon to threaten or assault” them, and “never attempted to flee.”

In Godbey’s view, those facts were not enough to establish that the officers used force against a “non-resisting” detainee, as Timpa’s family argued. “Although Timpa was not struggling for the entire duration of Defendants’ restraint of him,” he wrote, “the body cam video and audio shows that he continuously moved and yelled in contravention of the officers’ directives, kicked at [two officers], and was struggling enough that [a paramedic’s] first attempt to take his vitals was unsuccessful.”

According to his family, Timpa was “suffering drug-induced psychosis.” The officers clearly recognized that Timpa was intoxicated, since they repeatedly asked him what drug he was on, and he told them he had taken cocaine. Yet they proceeded to restrain him for 15 minutes in a position that made it difficult for him to breathe.

An expert hired by Timpa’s family concluded that he “died due to mechanical asphyxia.” The Dallas County medical examiner concluded that Timpa suffered “sudden cardiac death due to the toxic effects of cocaine and physiological stress associated with physical restraint.” She added that because of “his prone position and physical restraint by an officer, an element of mechanical or positional asphyxia cannot be ruled out.”

Given the circumstances, Timpa’s “resistance,” which the officers repeatedly described as “squirming,” was perfectly understandable. Godbey’s framing suggested that someone who “move[s] and yell[s]” because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.

The 5th Circuit saw the situation differently. It revived the claims against Officer Dustin Dillard, who pinned Timpa to the ground by kneeling on his back, and three other officers who allegedly failed to stop Dillard’s excessive use of force.

“Within the Fifth Circuit, the law has long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable,” Judge Edith Brown Clement wrote for a unanimous three-judge panel. “A jury could find that an objectively reasonable officer with Dillard’s training would have concluded that Timpa was struggling to breathe, not resisting arrest….A jury could find that Timpa was subdued by nine minutes into the restraint and that the continued use of force was objectively unreasonable in violation of Timpa’s Fourth Amendment rights.”

Clement said “the record supports an inference that Dillard knelt on Timpa’s back with enough force to cause asphyxiation.” She noted that Dallas officers are specifically trained for situations like this. They are taught to move a subject into a “recovery position” (on his side or sitting upright) as soon as possible “because the prolonged use of a prone restraint may result in a ‘combination of increased oxygen demand with a failure to maintain an open airway and/or inhibition of the chest wall and diaphragm [that] has been cited in positional asphyxia deaths.'” They are also taught that when a subject is suddenly unresponsive, he should receive immediate medical attention.

In this case, the body camera video shows the officers recognized that Timpa was unconscious several minutes before they finally lifted his lifeless body onto a gurney. “If I was squirming like that, I’d be sleeping too,” one remarked. “Hey, time for school! Wake up!” another said. The two cops elaborated on the gag, laughing while portraying Timpa as a child who does not want to go to school and describing the breakfast of “scrambled eggs” and “tutti-frutti waffles” waiting for him.

Now that the Supreme Court has declined to intervene, Timpa’s relatives will have a chance to present a jury with these facts. But the fact that they were initially denied that opportunity speaks volumes about the formidable barrier erected by qualified immunity.

“This is exactly why qualified immunity must be abolished or at least modified,” Geoff Henley, the attorney representing Timpa’s family, said after Godbey’s decision. “It allows officers to continue to use force that we all see and know to be excessive simply because there is no previous ruling prohibiting precisely the same kind of force. It’s squeezing a football through the eye of a needle.”

The post SCOTUS Lets Tony Timpa's Family Pursue Claims Against Cops Who Killed Him While Supposedly Trying To Help Him appeared first on Reason.com.

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