Loud music and horn-honking

A man's home is his castle. The Constitution does not explicitly say that, but cases have said that. It means the police cannot enter your home without a warrant, or unless there is an emergency that requires immediate entry. We call them "exigent" circumstances." This case explores the exigent circumstances principle.

The case is Lange v. California, a Supreme Court case issued on June 23. While driving his car, Lange was playing the music at concert hall volume and honking his horn. This attracted the attention of a police officer, who activated his overhead lights and followed Lange all the way to his house. This was not really a high-speed chase, as Lange lived nearby. The officer followed Lange into his house and tested him for alcohol, finding that Lange's blood alcohol level was three times the legal limit, which explains the loud music and horn-honking. Question: was this search legal? That depends on whether the officer had the right to enter Lange's home.

The Supreme Court many years ago devised the "exigent circumstances" to warrant rule in recognition that sometimes the police need to act quickly to deal with an imminent emergency, such as the destruction of evidence, or a health risk. But what distinguishes this case from the others is that Lange was involved in a misdemeanor "chase" and not a felony. While some misdemeanor cases are actually more serious than felonies, such as domestic violence cases, most misdemeanors are minor offenses that do not involve violence or serious emergencies. Justice Kagan writes:

Our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself^. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and  surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant.

So there is no hard-and-fast rule in cases like this. But the Court is saying that misdemeanor cases may not always justify a warrantless entry into someone's home. The case now returns to a California court to apply the principles set forth in this case.

Supreme Court upholds vulgar, off-campus speech

The Supreme Court first recognized the constitutional rights of grade-school students to speak out without punishment in 1969, when it ruled in Tinker v. Des Moines Indep. School District that the speech may only be restricted if it would materially disrupt the educational process. Tinker was also the last time the Supreme Court ruled in favor of students in a free speech case. Until now.

The case is Mahanoy Area School District v. B.L, issued on June 23. In Tinker, the Court said the school could not discipline students who wore anti-Vietnam War armbands in school. But subsequent cases always found in favor of the schools. In 1986, the Court said education authorities could regulate vulgar student speech in school. In 1988, the Court ruled that school principals had broad authority to censor student newspapers. Then, in 2007, the Court said the school could regulate off-campus speech if the student said it the course of a school-sponsored event. The 2007 case was known as the "Bong Hits for Jesus Case." 

In Mahanoy, the plaintiff posted on her personal Snapchat account, "Fuck school fuck softball fuck cheer fuck everything." She did this out of frustration over not making the cheerleading squad. The school disciplined her for this. Over the years, federal courts have not been able to agree on how, if at all, schools can regulate off-campus speech. The Supreme Court resolves that dilemma, at least somewhat.

In an 8-1 ruling (Justice Thomas dissenting), the Court notes that the in loco parentis principle (in which the school stands in place for the parents) is diminished when the speech happens off-campus. Also, "courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.  When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention." And the school has an interest in protecting unpopular expression because American schools are "the nurseries of democracy" and our representative democracy will not work unless we protect "the marketplace of ideas." In sum, Justice Breyer writes:

Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

Under this new principle, the student wins the case. Her speech was neither "fighting words" nor obscene as defined under Supreme Court precedent. This was "pure speech" that B.L. uttered off-campus, on her own time, without even mentioning the name of her school, and she did so on her cellphone to her private circle of Snapchat friends. The school's interest in regulating this speech is low, not enough to stifle her free speech interests. And the speech did not substantially disrupt the academic process. 

 

 

Family association claim fails under Rule 12

There are certain rights and entitlements that do not expressly appear in the U.S. Constitution. The right to intimate family association is one of them. The courts have implied that such right exists and can predicate a damages claim -- if that right is actually violated. It was not violated in this case.

The case is Keller v. Schoharie County Dept. of Social Services, a summary order issued on May 20. Keller claims that defendants violated her constitutional right to intimate association with family and her right to privacy by interfering with her relationship with her then-minor daughter, C.K, and revealing her mental health issues to C.K. Keller. A body of case law governs cases like this:

To state a claim for infringement of the right to familial association, a plaintiff must allege conduct “so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.” State action that is “incorrect or ill-advised” is insufficient to give rise to a substantive due process violation; rather, the action must be “conscience-shocking.” A plaintiff must also allege “that state action was specifically intended to interfere with the family relationship.” While “parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.”

So we have a strict burden of proof in this area. Plaintiff cannot survive this legal standard, and her case is dismissed under Rule 12 for failure to state a plausible claim. While she claims the defendants "destroyed her relationship with her daughter by telling her that Keller has serious mental health issues and should be on medication but is not," this "unwise and inappropriate" statement "does not rise to the level of ignoring overwhelming exculpatory information or manufacturing false evidence." What is more, "the estrangement between mother and daughter came after a years-long abusive relationship that resulted in multiple orders of protection against Keller. It is implausible to credit the breakdown in relationship to the comments of Woods and Baldwin where multiple instances of domestic violence by Keller against C.K. resulted in multiple lawful restraining orders and a no-contact order."

Court upholds summary judgment against age discrimination plaintiff

In this case, the Court of Appeals affirms the grant of summary judgment to management on the plaintiff's age discrimination claim even though she argued that multiple younger candidates were offered positions for which she was more qualified.

The case is Peddy v. L'Oreal, a summary order issued on  May 20. I argued the appeal for Peddy. After her position was eliminated, Peddy reapplied for six or seven other jobs within the company. The positions went to younger candidates, and the evidence showed that many of them did not have the minimal qualifications for the position. The company argued that it used business judgment in making these hiring decisions, and that it had a policy of not rehiring employees into lesser titles that would amount to demotions for the candidate.

The Court of Appeals (Walker, Park and Nardini) held as follows: first, it noted that the Second Circuit stated in Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001), that in a failure-to-hire case, the plaintiff must show her credentials were “so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” That holding favors the defendant in this case, the Court states, because "For the positions Peddy highlights, the selected candidates each had experience that roughly matched the job postings. Thus, Peddy’s credentials were not  'so  superior' that they would support an inference of discrimination." This is interesting reasoning. The Court does not note Peddy's argument that the selectees did not have the minimum qualifications or Peddy's experience in the industry. This holding stretches Byrnie quite a bit.

A few words about the "so superior" standard in Byrnie. Title VII does not include this language, which draws from the general rule that management enjoys some discretion in choosing among qualified candidates. Byrnie, in turn, took the lead from two other appellate rulings, Deines v. Tex. Dept. of Protective & Regulatory Services, 164 F.3d 277 (5th Cir. 1999), and Fischbach v. D.C. Dept. of Corrections, 86 F.3d 1180 (D.C. Cir. 1996). These cases stand for the proposition that the plaintiff cannot win unless “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question” (Deines) and “Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates” (Fischbach). A reading of Dienes shows the Fifth Circuit had been using that language for years. The D.C. Circuit had also previously used this language, and Fischbach cites the general rule that courts cannot serve as super-personnel boards. Should the courts reconsider this judge-made principle that might excuse subconscious or even overt bias when other candidates are also qualified for the position? Surely a jury can find that management discriminated even when choosing among qualified candidates.

Another holding in Peddy is the Court's finding that management had a policy that prohibited re-hiring employees into lesser positions. But the evidence for this "policy" was the deposition testimony of a managerial witness, not a written policy. We argued the jury does not have to credit that policy because it was breached on two occasions with other employees and the jury does not have accept testimony from interested witnesses, as per the Supreme Court's language in Reeves v. Sanderson Plumbing, 530 U.S. 133, 151 (2000): "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Plaintiffs' lawyers often cite this language from Reeves, but I have not seen the Court of Appeals invoke it for purposes of rejecting summary judgment in employment discrimination cases.

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

“no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280–81 (5th Cir.1999); see also Fischbach, 86 F.3d at 1183 (“Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates.”).

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

For appellate mavens only

Federal appellate practitioners know that not every trial court ruling may be appealed. The Court of Appeals only has jurisdiction to hear cases from final judgments, which means the entire case must be over and done with before you can file a notice of appeal. This is a stark contrast from the New York appellate system, where just about anything can be appealed, even if the case is not over, such as the denial of summary judgment or a discovery ruling. This case would be included in any textbook on appellate practice, as it raises a rare issue that only an appellate maven would love.

The case is Bey v. City of New York, issued on June 9. I wrote about this case at this link. The Court holds that the Americans with Disabilities Act is not violated if the employer denies an accommodation that is prohibited under a binding federal regulation. But the Court also had to deal with another issue: appellate jurisdiction.

What happened here was that the district court ruled in favor of the plaintiffs, granting their motion for summary judgment on ADA liability. The City appealed from that ruling, but plaintiffs argued there was no appellate jurisdiction because the district court still had to rule on their damages claim, which was not part of the summary judgment ruling. If the plaintiffs are right, then there is no appellate jurisdiction and the City cannot take up the appeal until the district court makes a damages determination.

But the plaintiffs are not correct here. The Court of Appeals (Raggi, Sullivan and Bianco) notes that on issues like this, "we eschew formalism in favor of a pragmatic approach," and "we . . . look to whether, following the district court's decision, further proceedings are contemplated or required." We have appellate jurisdiction because the district court styled its decision as "Memorandum, Order, Judgment, and stay." The word "judgment" in that equation suggests the district court was issuing a judgment. While plaintiffs argue that they also sought damages in this case for the reasonable accommodation denial, the Court of Appeals draws the inference that the district court had intended to deny them any damages even though it ruled in their favor on the merits, as the district court noted during the pre-motion conference that damages were minimal and possibly frivolous in this case. "While the district court's decision stayed mum on the issue of damages, the court's silence is most naturally understood as a denial." 

ADA not violated if federal regulation prohibits "reasonable" accommodation

The Court of Appeals has held that the reasonable accommodation provision of the Americans with Disabilities Act does not require an employer to modify its workplace policies in a manner that violates federal regulations. 

The case is Bey v. City of New York, issued on June 9. The plaintiffs are four Black firefighters who suffer from a skin condition known as Pseudofolliculitis Barbae, or PFB, which results in persistent irritation following shaving. This condition affects 45% to 85% of Black men. People with PFB deal with this condition by not shaving or keeping a light beard.

The problem was that firefighters have to wear a respirator that must seal against the firefighter's face to keep out toxic fumes. In August 2015, the FDNY offered medical accommodations with firefighters with PFB by allowing them to maintain closely cropped beards, uncut by a razor. But the federal regulations changed, and in May 2018, the FDNY determined that the new OSHA regulations prohibited the accommodation altogether, and the accommodations were revoked for the people who had previously received them. The firefighters now have to be clean-shaven, notwithstanding their PFB. Plaintiffs argue that the FDNY violated the ADA in revoking the accommodation.

The Court of Appeals finds that the FDNY did not violate the ADA because (1) the OSHA regulation prohibits any facial hair, whatever its length, and that they must be clean-shaven where a respirator seals against the skin, and (2) "[a]n accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency." In sum, "an employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law."

 The authority for this holding is the Code of Federal Regulations, which states that there is no ADA violation if "another federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required" under the regulations. The Third Circuit has also issued a similar holding. The Second Circuit (Sullivan, Bianco and Raggi) also says the reasoning in Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999), mandates this result.

Tricky arbitration agreement is found to be invalid

There are two justice systems in America: the public justice system, with courts, judges, the Supreme Court, the federal and state rules of procedure, and the rules of evidence. Then there is the private justice system, also known as arbitration, in which the parties choose the arbitrator, the rules of evidence and prior precedent don't always apply, appellate options are limited, and the proceeding may operate in secret. In many employment disputes, the employer pays the arbitrator's bill. Many people, upon starting a new job or signing up for a service, "agree" to arbitration by signing a sheet of paper they never read, or by clicking through an internet link with fine print that says that any dispute arising from the relationship (whether an employment relationship or consumer transaction) must be arbitrated and cannot be taken to court. This case asks when the arbitration "agreement" in a consumer transaction can be invalidated.

The case is Soliman v. Subway Franchisee Advertising Fund, issued on June 8. Plaintiff went to a Subway sandwich shop and signed up for a promotion that would give her a free sandwich. All you have to do is send a text message to Subway. Of course, plaintiff signed up for this. Then she opted out of the promotion later on, but the promotional text messages from Subway continued unabated. She sues under the Telephone Consumer Protection Act over the unwanted text messages. The problem is that Subway argues that she has to take the case to arbitration, not court. Arbitration is regarded as a lesser forum for plaintiffs then court, so she challenges Subway's arbitration demand.

Courts normally assume that most arbitration agreements are valid, even if the plaintiff never read them prior to signing them, or if they contain legalese. Most people are not in a position to negotiate the arbitration provision, particularly new hires who want the job and don't have the gumption to take issue with arbitration; they have no bargaining power, and what new employee argues with management about where they might take any future employment dispute?

This case is different. The plaintiff prevails on appeal, as the Second Circuit (Jacobs, Pooler and Bianco) finds the arbitration agreement agrees with the district court in holding the arbitration provision cannot force plaintiff to arbitration because it was too obscure (and frankly, tricky) to place her on notice that any dispute she would have with Subway would have to proceed to arbitration. Here is what the Court of Appeals says about all of this:

Subway has failed to demonstrate that such terms and conditions would be clear and conspicuous to a reasonable person in Soliman’s position for the following reasons:  (1)   Subway failed  to provide   evidence   regarding   the   size   of   the advertisement  at  issue,  or  the  print  size  contained  within  that  advertisement; 2) the reference to “[t]erms and conditions” was buried on the advertisement in a paragraph that was printed in significantly smaller font relative to the other text on  the  advertisement, and  the  reference  itself  was  surrounded  by a  substantial amount of unrelated information; (3) the advertisement only vaguely referenced “[t]erms and conditions,” and did not state that a consumer would be agreeing to those terms if she sent a text message to Subway’s short code, nor did it otherwise direct the consumer to such terms; (4) access to the terms and conditions on the Subway website required Soliman to type in the URL text provided on the hard- copy print advertisement into an internet browser on her cell phone or some other device  with  internet  browsing  capabilities;  and  (5)  once  linked  to  the  Subway website, the heading stated that it contained “terms of use for this website,” thus potentially  suggesting  to  a  reasonable  person (searching  for  conditions of the promotional offer) that the website did not contain any terms or conditions beyond those relevant to the use of the website.  This combination of barriers leads us to conclude that   the   terms and conditions in this case were   not   reasonably conspicuous under the totality of the circumstances and, thus, a reasonable person would not realize she was being bound to such terms and conditions by texting Subway in order to begin receiving promotional offers.

At oral argument in this appeal, the Second Circuit jumped all over Subway's lawyer from the outset, noting that this was a different kind of arbitration case and suggesting the terms of the arbitration provision were too obscure to place anyone on notice that any disputes would have to be arbitrated. Subway's lawyer argued in part that a reasonable consumer would expect that a free sandwich will come with certain conditions. The panel was not buying it, though it did say that no precedents really address a case like this.

Court of Appeals upholds plaintiff's verdict in Title VII claim

This case teaches us a few things. First, if something goes wrong at trial, object as early as possible. Second, the trial court has wide latitude to reconcile any potential conflicts in the verdict form. The losing party in this case did not object when the jury returned the verdict sheet, and the trial court nonetheless found a way to harmonize the jury's answers. The plaintiff wins the appeal.

The case is Perez v. County of Rensselaer, a summary order issued on May 27. I represented the plaintiff on appeal. This is a gender discrimination case. The plaintiff, a man, alleged he was denied multiple promotions in the County Probation office because of his sex; most of the positions went to female candidates. (The original plaintiff was Gerald Wierzbicki. He passed away, so his wife, Nellie Perez, became the plaintiff). The jury entered a verdict in his favor, awarding plaintiff $30,000 in lost wages and $100,000 in pain and suffering. The jury registered its verdict on a verdict form. Post-trial, after the jury had gone home, defendants argued in a motion that the jury's answers on the verdict form actually meant that defendants had won the case.

Here is how the Court of Appeals characterizes the verdict form:

The verdict form asked the jurors two questions regarding [Plaintiff's] Title VII gender
discrimination claim. First, the form asked: “Did Nellie Perez prove by a preponderance of the evidence that  [Plaintiff's]  gender  was  a  motivating  factor  in  one  or  more  of  Defendant  the  County  of Rensselaer’s  decisions  not  to  promote  him  to  the  Senior  Probation  Officer  position  or  the  Probation Supervisor  position?” 

If  the jurors  answered  “yes,” they  were  instructed  to  proceed  to Question 2, which asked: “Did the County of Rensselaer nevertheless prove by a preponderance of the evidence that even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him, that it nevertheless would have made the same decision even absent gender discrimination?” Despite answering “yes” to Questions 1 and 2, the jury proceeded to award compensatory damages one amount of $130,000. Defendants allege that the award of damages was inconsistent with the jury’s affirmative response to Question 2.

As defendants saw it, since Title VII allows the defendant to win the case if it shows it would have denied the plaintiff the position even without considering his gender, they have to win the case because the jury also said the County would have made the same decision anyway. The basis for this argument is the first part of Question 2: "even if [Plaintiff's] gender was a motivating factor in any of its decisions not to promote him . . . " (Emphasis supplied).

The trial court disagreed. Not only did defendants fail to object to the purportedly inconsistent answers before the jury was discharged, but the trial court said that the jury meant that the County would have denied plaintiff at least one of the positions even without considering his gender. Supporting the trial court's finding was that, in one instance, a man was awarded the promotion instead of plaintiff.

Free speech lawsuit over Facebook ban is mooted

This is a case for the modern age: someone sues a politician who banned him from his Facebook page. The case loses in the Court of Appeals because the elected official later decided to reopen the Facebook page to this guy with a promise not to ban him again.

The case is Wagschal v. Skoufis, a summary order issued on April 22. Skoufis is a state senator from Orange County; his office was right across the street from mine in Chester, N.Y., before we relocated to New Paltz. Social-media-banning is the latest craze, most prominently when former president Trump cut people off from his Twitter page and the Second Circuit in Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), held that maneuver was a free speech violation. In this case, plaintiff was kicked off Skoufis's page after he said Skoufis was condoning "flagrant racism" and "ugly comments" from members of the public on his Facebook page relating to Kiryas Joel, a Hasidic community in Orange County. 

Unfortunately for plaintiff, Skoufis decided to allow him to comment on Facebook again. The Court of Appeals (Calabresi, Carney and Nardini) says this moots the suit. When is a suit moot? Can a defendant just make the case go away by reversing the practice that got him sued in the first place? In certain cases, yes, if we are certain the defendant will not revert to his old ways. Skoufis said in two sworn declarations that plaintiff would no longer be banned from his Facebook page again. Promises like this will moot the case, as per Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009).

After the Second Circuit issued the Trump ruling, Skoufis acknowledged that banning the plaintiff from his Facebook page again would likely violate the First Amendment. Courts will defer to public officials on their promises not to reinstate an unlawful policy in cases like this. That means plaintiff's case is gone. 

What about damages? A moot case does not extinguish your entitlement to damages. The problem for plaintiff is qualified immunity. If the law was not clearly-established at the time of the constitutional violation, there are no damages against the individual defendant. First Amendment cases arising from social media banning are still in their infancy. It was not clear that Skoufis was breaking the law when he banned plaintiff from his Facebook page. Qualified immunity therefore kicks in, plaintiff cannot recover any damages. 

Rehearing granted in abortion-access injunction case

In March 2021, the Court of Appeals said the State was denied a fair trial in a dispute over whether anti-abortion activists had unlawfully impeded women from an abortion clinic. As I wrote in covering the case, 

The Court of Appeals ultimately holds the AG was entitled to a preliminary injunction after all, and that she had proven a likelihood of success on whether the protesters had physically obstructed patients, threatened the use of force against them, and violated the rules against follow-and-harass. The Court also finds that, without the injunction, the clinic patients will suffer irreparable harm and that without the injunction, there will be future violations of the FACE Act. The Court also holds the FACT Act does not violate the First Amendment right to speech and protest, as it prohibits true threats, which fall outside the First Amendment's protections.

The case is State of New York v. Griepp. The ruling in March was a huge victory for the New York Attorney General, which is prosecuting the case.That appellate ruling has now been vacated. In April, the protesters filed a petition for rehearing. The Court of Appeals has granted that petition without any hint as to how it might rule on it. The district court ruling in the protesters' favor remains in place while the Court of Appeals re-hears the case.