Supreme Court clarifies when threatening speech is not protected by the First Amendment

Lost in the shuffle of other high-profile Supreme Court rulings this term is a recent decision that clarifies when the threats of violence are not protected speech under the First Amendment. The case arises from a guy who was stalking a female musician online.

The case is Counterman v. Colorado, issued on June 27. Counterman was sending this woman hundreds of Facebook messages that made her fear for her life. He was prosecuted and convicted under a Colorado law that makes it illegal to repeatedly communicate with another person in a manner that would cause a reasonable person to suffer serious emotional distress. Countryman says he cannot be guilty of this because he did not intend to cause such emotional distress. 

The Supreme Court notes that we have very few exceptions rule that the government cannot restrict speech entirety. Those exceptions include defamation, child pornography, fighting words, obscenity, incitement to riot, and true threats. This case involves the true threat doctrine. That doctrine has been on the books for decades but this case if the first time the Court discusses what mental element (mens rea in legalese) prosecutors must show to win a conviction for a true threat.

Justice Kagan writes that the words alone are not enough to be a true threat. You have to show the defendant had the requisite mental state to cause someone to fear for their life. After reviewing other First Amendment precedents on defamation, incitement to riot, and obscenity, the majority settles upon a recklessness standard, rejecting the malicious intent and negligence standards. This middle ground makes it less likely that someone will chill their speech for fear of prosecution. The Court recognizes that the recklessness test might allow some bad speech to slip through the cracks, but there is no perfect answer to this issue. In response to the dissent's complaint that the majority is making a "Goldilocks judgment," Justice Kagan writes, "in law, as in life, there are worse things than being 'just right.'"

This ruling means that Counterman's case returns to the courts in Colorado for the courts to apply the new test outlined in this case.

Justices Sotomayor and Gorsuch write separately to state that the recklessness test is OK for some true threat cases, such as this Internet stalking case, but that the Court should leave open the possibility that a different mens rea standard might apply in other true threat cases. Justices Barrett and Thomas dissent. Thomas in particular argues that all this judge-made, policy-driven law is not authorized by the Constitution, and he bemoans how the majority relies on New York Times v. Sullivan, the classic defamation case involving public officials, to help guide its reasoning. In Sullivan, the Court in 1964 said that public figures have to show malice to win a defamation case. Thomas suggests once again that the Court should reconsider Sullivan.

Supreme Court requires that arbitrability appeals trigger automatic stay in the district court

Arbitration is the name of the game these days. If you sign an arbitration agreement, either as a new employee or as a consumer, and then something goes wrong and you need to assert your rights, in all likelihood, your case will proceed to arbitration, which is a private justice system with limited public oversight. There are exceptions to this rule, particularly in sexual harassment cases, but for the most part, courts will uphold nearly all arbitration agreements. The question is what happens when you try to sue in court and the defendant wants to enforce the arbitration agreement. Is the case stayed in court, or can the case proceed in court until federal judges decide whether to enforce the arbitration agreement?

The case is Coinbase, Inc. v. Bielski, issued by the Supreme Court on June 23. Coinbase is an online currency platform. The class-action plaintiffs claim that Coinbase did not replace funds that were fraudulently taken from their accounts. Coinbase asked the district court to send the case to arbitration, as per the arbitration agreement that Coinbase users signed when they started with the platform. Whether users knew they were signing away their rights is of no moment in these cases. If you signed it, you are bound by it. 

In this case, the district court denied the motion to compel arbitration, and Coinbase appealed to the Ninth Circuit Court of Appeals. Coinbase also asked the district court to stay all proceedings in the case until the Ninth Circuit resolved the appeal. The district court denied that motion and the Ninth Circuit also denied the stay request. That's how this case reaches the Supreme Court.

Writing for a 6-3 majority, Justice Kavanaugh says that the Federal Arbitration Act requires that all proceedings in federal court be stayed while the interlocutory appeal on arbitrability is pending. While the FAA does not explicitly address this issue, a longstanding principle of American appellate procedure holds that "[a]n appeal, including an interlocutory appeal, “divests the district court of its control over those aspects of the case involved in the appeal.”  That's the rule in Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982). Griggs is enough to settle this issue, the Supreme Court says. 

The Court is satisfied that this rule makes sense in the arbitration context. Kavanaugh writes:

Continuation of proceedings in the district court “largely defeats the point of the appeal.” A right to interlocutory appeal of the arbitrability issue without an automatic stay of the district court proceedings is therefore like a lock without a key, a bat without a ball, a computer without a keyboard—in other words, not especially sensible. From the Judiciary’s institutional perspective, moreover, allowing a case to proceed simultaneously in the district court and the court of appeals creates the possibility that the district court will waste scarce judicial resources— which could be devoted to other pressing criminal or civil matters—on  a  dispute  that  will  ultimately  head  to arbitration in any event.  That scenario represents the “worst possible outcome” for parties and the courts: litigating a dispute in the district court only for the court of appeals to “reverse and order the dispute arbitrated.”

This holding therefore reverses Second Circuit authority on this issue. In Motorola Credit Corp. v. Uzan, 388 F.3d 39 (2d Cir. 2004), the Second Circuit held the trial court has discretion whether to stay all proceedings in this context.

In dissent, Justice Jackson says this mandatory-general-stay rule in arbitration cases "comes out of nowhere, as the FAA does not authorize it, and that the better option is for the trial judge to exercise her discretion in deciding whether to stay all proceedings while the arbitration appeal is pending. She notes that "[a] court’s discretion 'to grant a stay pending review' is 'firmly imbedded in our judicial system, consonant with the historic procedures of federal appellate courts.'”

Westchester abortion protest "bubble law" is upheld on appeal

The plaintiff in this case is an anti-abortion activist who wants to counsel women outside abortion clinics as a means to talk them out of having the procedure. The problem is that Westchester County enacted a law three days after the Supreme Court overruled Roe v. Wade in June 2022 that says you cannot knowingly approach a woman within eight feet outside an abortion clinic in order to communicate your opposition to abortion. Hence, this lawsuit.

The case is Vitagliano v. County of Westchester, issued on June 21. The district court dismissed the case, holding that plaintiff did not even have standing to bring the case in the first instance. The Court of Appeals (Livingston, Carney and Raggi) rejects that analysis. You have standing to challenge a law if you intend to do what the law prohibits and are there deterred from doing it to avoid a civil fine or an arrest. Standing is a jurisdiction requirement that cannot be waived. It derives from the Constitution, which says courts only have authority resolve "cases or controversies," interpreted to mean that the parties have a real stake in the outcome of the case. Federal courts thus do not issue advisory opinions. 

Plaintiff's desired anti-abortion activism falls squarely within the Westchester County law that prevents her from approaching women within eight feet. Since Westchester had recently enacted the law, plaintiff also faced a credible fear of enforcement, which deterred her from this kind of activism.

While plaintiff wins the standing battle, she still loses the case. That's because the Westchester law is constitutional, modeled after a Colorado law that the Supreme Court upheld in Hill v. Colorado (2000), which said the state court enforce a bubble zone law that prevented anti-abortion activists from closely approaching women outside abortion clinics. In Hill, the bubble zone was 100 feet. In Westchester, the bubble zone is eight feet, and you cannot so approach women outside these clinics within 100 feet. In other words, once you are within the 100 foot radius, you have to separate yourself by eight feet. If the Supreme Court upheld an identical law in 2000, then the Second Circuit has to uphold the Westchester law in 2023.

Plaintiff argues to the Court of Appeals that Hill was wrongly decided. But Supreme Court precedent holds that the Court of Appeals cannot contravene Supreme Court precedent. The only way to challenge Supreme Court authority is the Supreme Court. Since plaintiff is represented by the Becket Fund for Religious Liberty, an experienced outfit that knows how to file a certiorari petition, my guess is they will ask the Supreme Court to reconsider Hill. Considering the 6-3 conservative majority is open to revisiting prior precedents and only last year overturned Roe v. Wade, can you blame plaintiff for trying?

More guidance on resolving attorneys' fees petitions

A central feature of the federal civil rights laws is that the winning plaintiff will recover their attorneys' fees from the losing side. That award is above and beyond the damages award. The plaintiff's lawyer will submit a fee application to the court, which determines how much money the defendant has to pay to the attorney for successfully litigating the case. Every now and then, the Court of Appeals offers guidance on this process.

The case is A.C. v. New York City Dept. of Educ., issued on June 21. This is an Individuals with Disabilities in Education Act (IDEA) case, where the parents of a disabled child sue the school district to provide a suitable educational plan, which sometimes involves placing the student in a specialized school. Actually, this is a series of cases that were consolidated into one appellate ruling. As the prevailing parties, the parents moved for attorneys' fees but were not not satisfied with the amounts awarded by the district court. The Court of Appeals (Jacobs, Menashi and Merriam) affirms and holds the district courts for the most part did not abuse their discretion in awarding fees.

The civil rights laws do not provide much guidance on how to calculate fees. One way that courts have filled in this gap is to have the lawyers multiply their court-approved hourly rates by the number of hours worked on the case. We call that the lodestar model. The lodestar amount may be adjusted if the lawyer spent excessive, redundant or unnecessary hours on the case. We also apply the Johnson factors, named after a Fifth Circuit case from 1974 that courts around the country has adopted to assist in the process. Here are the factors:

“[t]he time and labor required”; “[t]he novelty and difficulty of the questions”; “[t]he skill requisite to perform the legal service properly”; “[t]he preclusion of other employment by the attorney due to acceptance of the case”; “[t]he customary fee”; “[w]hether the fee is fixed or contingent”; “[t]ime limits imposed by the client or the circumstances”; “[t]he amount involved and the results obtained”; the experience, reputation, and skill of the attorneys; whether the case is undesirable and may not be “pleasantly received by the community” or the attorney’s contemporaries; “[t]he nature and length of the professional relationship with the client”; and “[a]wards in similar cases.”

In this case, the district court reduced the hourly rate, reasoning that the case was not especially complex. The parents appealed, arguing that the district court evaluated the complexity of the cases twice: when considering the number of hours reasonably expended as well as when considering the hourly rate. Case law says you can't consider the same factors twice. But the district court did not violate that principle because it considered the complexity factor in making two different determinations: (1) the hourly rate and (2) whether too much time was spent on the case. The ultimate holding here is that the district court may consider the complexity of the case in determining the hourly rate. The Second Circuit previously approved the complexity factor in Lilly v. City of New York. 934 F.3d 222 (2d Cir. 2019). 

The other significant holding is that the district court abused its discretion in denying the attorney any fees for travel. Most courts will cut the fee in half for travel on the basis that you are not really working while traveling to and from the case. Here, the district court denied all travel costs because a reasonable client would not retain an Auburn or Ithaca attorney over a New York City attorney if it meant paying big-city rates for the case and an additional five hours in billable time for each trip. Since the district cannot eliminate all travel time, that was an erroneous ruling. The case returns to the district court to recalculate the travel costs.  
 

 

Trump critic cannot sue Yale over free speech violation

A psychiatrist brings this lawsuit claiming that Yale University declined to renew her contract because she said that a prominent supporter of former President Trump had a "shared psychosis by contagion." Connecticut has a statute that says you can't be fired in retaliation for engaging in free speech, even if you worked for a private entity, which normally is not governed by First Amendment standards. Plaintiff loses the case.

The case is Lee v. Yale University, a summary order issued on June 20. Plaintiff is a prominent Trump critic who has publicly said Trump is mentally ill. Her termination from Yale was controversial and made the news. The target of her criticism was one of the most prominent lawyers and public intellectuals in the country.

The statute in question says “[a]n employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4[,] or 14 of article first of the Constitution of [Connecticut] . . . shall be liable to such employee for damages caused by such discipline or discharge." 

I would guess Connecticut is one of the few states with a statute like this. But it does not help plaintiff. Why? Because plaintiff is not an "employee" under the statute. She was a volunteer. Under the traditional test in determining if someone is an employee, we ask if the employer has control over you. Since plaintiff was an unpaid voluntary Assistant Clinical Professor at Yale, she is not covered under the statute even though Yale provided her with office space, facilities, libraries, laboratories, statistical programs and software, etc. This is all indirect renumeration, the Court of Appeals says, or benefits that are merely incidental to her volunteer work. Benefits that might have helped her cause would have been health insurance, life insurance, or a retirement pension. She did not receive these benefits and thus cannot invoke Connecticut's unique statute.

Plaintiff says that someone drilled a hole in her safety deposit box and took the money out

The plaintiff is suing Capital One bank, claiming that someone drilled a hole into her safe deposit box and took out all her money. She brings this case pro se, and the legal theory is that the bank was negligent in allowing this to happen. The case was dismissed at the district court under Rule 12 but the Court of Appeals revives the case.

The case is Henry v. Capital One, N.A., a summary order issued on June 16. The district court dismissed the case in part because "various exculpatory provisions in Capital One’s lease agreement for the safe deposit box immunized the bank from liability for loss of cash." In other words, the lengthy fine-print contract that Henry signed when she opened the safe had language that she probably never read and was not in a position to negotiate in any event. Under that provision, the bank is not liable for a variety of misconduct or other problems. 

The Court of Appeals says Henry may have a case, after all. The Court notes that "The lease agreement between Henry and Capital One provides that Capital One “will in no event be liable for alleged loss or
destruction of any cash claimed to have been placed in the Safe Deposit Box.” On its face, that language helps the bank. But, the Court says, public policy in New York “forbids a party’s attempt to escape liability, through a contractual clause, for damages occasioned by grossly negligent conduct.” In re Part 60 Put-Back Litig., 36 N.Y.3d 342, 352 (2020). And that, ladies and gentlemen, is the loophole that Henry needs to proceed with her case.

As the Court notes, "Henry’s complaint alleged that Capital One 'drilled open [her] safe deposit box without her notice or permission' and that she was told 'the contents were missing from the box.' Allegedly, none of the limited circumstances enumerated in the lease agreement that would have
allowed Capital One to 'force open' the safe deposit box was present here." If the bank drilled a hole into the safe deposit box, it would have been intentional. It therefore follows that the loss of any money could have been the result of gross negligence.

Pro se inmate victory at the Court of Appeals

Pro se inmates are more successful in the Court of Appeals than you might think. They don't win all the time, but the win frequently enough to suggest that maybe they are not always getting a fair shake in the district courts. This guy wins his appeal arising from his prosecution for harassment.

The case is Poulos v. County of Warren, a summary order issued on June 15. Here are the facts:

On January 20, 2014, Poulos was arrested on drug related charges.  He was detained at the Warren County Jail, where he claims the officers harassed him. Poulos protested by flooding his cell which, followed by a contested series of events, led to him being charged and convicted for aggravated harassment by an incarcerated individual under New York Penal Law § 240.32.  Poulos’s harassment conviction was overturned on appeal, and Poulos was acquitted at the retrial on January 29, 2018.  By that point, he had been convicted of the drug charges and received a 33-year sentence.

Poulos argues that the harassment arrest was bogus, and that argument predicates his claim for malicious prosecution and falsification of evidence. The district court dismissed that claim because Poulos did not suffer any deprivation of liberty, a necessary element of these constitutional claims brought under the Fourteenth Amendment. The lower court reasoned that there was no liberty deprivation because plaintiff was already incarcerated for an unrelated crime before the harassment charges were brought against him. 

Not quite, says the Court of Appeals (Pooler, Wesley and Park), which notes that plaintiff  claims that between his release on the drug charges in 2014 and his conviction on those charges in 2016, "he was detained solely on the harassment counts." If that is true, and we assume it is true under Rule 12(b)(6), then plaintiff does assert he was denied a liberty interest. The case will proceed to discovery on this claim.

This case shows how hard it is to sue child protective agencies for constitutional violations

This is one of those difficult cases that arises from child neglect proceeding and false charges against a parent who then brings a lawsuit against a city agency for damages over the trauma of being separated from their children.

The case is Dabah v. Franklin, a summary order issued on May 22. Plaintiff fathered two children from a prior marriage and his former wife was awarded custody of the children, though plaintiff saw the children every other weekend and on holidays and other occasions. The New York City Administration for Children's Services next investigated plaintiff over allegations that he had abused his children. Plaintiff says his former wife instigated the charges, which temporarily led to loss of plaintiff''s custody over his children. The charges were ultimately dismissed in plaintiff's favor. Can plaintiff sue over this? 

Civil rights lawyers will get phone calls over cases like this from time to time. These cases are emotional and difficult because child protective workers enjoy certain immunities from suit if they investigate in good faith. This case was dismissed on a Rule 12 motion, so the court held that plaintiff's allegations, even if true, were not enough for a lawsuit. 

As for the substantive due process claim alleging the loss of custody during the investigation was outrageous enough to violate the Fourteenth Amendment. This claim fails because the loss of custody happened after Family Court issued an order permitting such removal based on ACS's claim that his two children gave separate statements to a case worker and therapist reporting that he used corporal punishment on them. While the lawsuit says these statements were false, there is no claim that ACS fabricated the statements. Under the Iqbal pleading requirements, any falsehood claim is conclusory and cannot survive a Rule 12 motion.

Plaintiff also has a procedural due process claim. That claim fails because the defendants get qualified immunity, a defense enjoyed by public workers in constitutional claims when the court decides they acted in good faith or they did not violate clearly-established law in moving against the plaintiff. Plaintiff wanted a hearing prior to the termination of his custody over his children, but there is no case that entitled him to such a hearing. Nor is there any case that entitled him to a prompt post-termination hearing. 

Do you see how difficult it is to maintain such a case. Not that all such cases fail. But the laws regulating the child protective services world have built-in protections for case workers and investigators. More broadly, Section 1983 cases always run into a qualified immunity defense. That defense does not always succeed, but plaintiffs need to cite a case that is close enough on point that the court will be satisfied that the defendants knowingly violated the law.

Adverse employment actions - the Supreme Court is being asked to examine this issue

A certiorari petition is pending in the U. S Supreme Court that may significantly change the legal standard in the Second Circuit for bringing an employment discrimination case. The question is what is an adverse employment action under Title VII and other employment discrimination cases.

The case is Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir. 2022). The plaintiff was a police officer who was transferred from the Intelligence Division (where she oversaw public corruption and human trafficking cases) to a more traditional and less prestigious position supervising other offers on patrol. The Intelligence Division was a more prestigious position. Was the transfer an adverse employment action? The Eighth Circuit said it was not an adverse action because plaintiff suffered no loss in pay or rank and the transfer did not harm her future career prospects. This probably would have been the same result in the Second Circuit, which defines an adverse employment action as follows:

To be “materially adverse” a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” “A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” 

The leading case in the Second Circuit on this issue is Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000). Galabya cites in part Crady v. Liberty Nat. Bank, 993 F.2d 132, 136 (7th Cir. 1993), which said "a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."

In the Second Circuit, many cases are dismissed on authority of Galabya. But two Circuits have adopted a different view. In Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022), the en banc court overruled a prior decision from the D.C. Circuit that tracked the language in Galabya and noted that Title VII does not expressly state that an adverse action action requires the loss of money or some other tangible loss, such as a demotion or termination. Chambers said as follows:

The relevant part of section 703(a)(1) is capacious: By leaving undefined the phrase “terms, conditions, or privileges of employment,” the Congress “evince[ed] a[n] ... intent to strike at the entire spectrum of disparate treatment ... in employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) Although the phrase is not without limits—not everything that happens at the workplace affects an employee's “terms, conditions, or privileges of employment”—the transfer of an employee to a new role, unit, or location (as opposed to the mere formality of a change in title that Judge Walker instances in his separate opinion) undoubtedly is included. 

“Discrimination” refers to “differential treatment.” Jackson v. Birmingham Board of Education, 544 U.S. 167, 174 (2005). The unadorned wording of the statute admits of no distinction between “economic” and “non-economic” discrimination or “tangible” and “intangible” discrimination. See Meritor, 477 U.S. at 64. Nor does the statute distinguish between “subtle” or “overt” discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). Rather, Title VII prohibits all discrimination with respect to terms and conditions of employment.

The Sixth Circuit also holds that "engrafting an adverse employment action requirement on Title VII is an atextual judicial innovation. Threat v. City of Cleveland, 6 F.4th 672 (6th Cir. 2021). But Threat and Chambers are the minority view. Most Circuits agree with the Second Circuit on this issue.

That may change. The plaintiff in Muldrow filed a certiorari petition with the Supreme Court, asking it to reject the more defendant-friendly adverse action in favor of the more plaintiff-friendly Chambers and Threat. That petition, which notes the circuit-split, will be discussed at the Supreme Court's private conference on June 22, 2023.  

Without a crystal ball or a DeLorean time machine, I cannot predict what the Supreme Court will do. It only takes four justices to grant certiorari to hear the case. There are three liberals on the Court. Is there a fourth vote? Consider this. In 2017, a judge on the D.C. Circuit wrote as follows:

Our precedents hold that discriminatory transfers (and discriminatory denials of transfers) are ordinarily not actionable under Title VII. See Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003); Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999). The majority opinion narrows those precedents and holds that discriminatory transfers are sometimes actionable, including under the circumstances alleged in this case. I am comfortable with that narrowing of our precedents, and I therefore join the majority opinion.

That said, uncertainty will remain about the line separating transfers actionable under Title VII from those that are not actionable. In my view, the en banc Court at some point should go further and definitively establish the following clear principle: All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII. As I see it, transferring an employee because of the employee's race (or denying an employee's requested transfer because of the employee's race) plainly constitutes discrimination with respect to “compensation, terms, conditions, or privileges of employment” in violation of Title VII. 42 U.S.C. § 2000e-2(a). I look forward to a future case where our Court says as much.

That case as Ortiz-Diaz v. United States Dep't of Hous. & Urb. Dev., Off. of Inspector Gen., 867 F.3d 70 (D.C. Cir. 2017). The judge who wrote that was Brett Kavanaugh, who now sits on the Supreme Court. 

"Central Park Karen" case is dismissed

In summer 2020, while walking her dog in Central Park, a white woman saw a black man who was bird-watching. The woman said the man aggressively confronted her and she feared for her safety and the safety of her dog. She told the man that she tell the police that there was an "African-American threatening her life." This became the Central Park Karen case, which has reached the Second Circuit.

The case is Cooper v. Franklin Templeton Investments, a summary order issued on June 8. The woman was Amy Cooper. The man was Christian Cooper. They are not related. After a video of this incident went viral, Amy was ostracized and her employer fired her and said "we do not condone racism of any kind." Claiming that her former employer did not interview the Mr. Cooper or obtain a recording of her 911 call to the police or engage in other investigative steps. Amy sues her former employer, Franklin Templeton, under the employment discrimination laws. She also charges her former employer with defamation because it implied she was a racist.

First, the employment discrimination claim. The Court of Appeals (Parker, Nathan and Pooler) says plaintiff has not plead any facts that would support an inference of discrimination. The court analyzes the case this way:

To the extent that Plaintiff contends that Defendants “implicated the race of their employee with each of [their] communications to the public, by repeatedly connecting [their] stated stance against racism with their termination of the Plaintiff,” that argument fails as a matter of law. Defendants’ statements made no mention of Plaintiff’s race, and even to the extent they could be read as accusing Plaintiff of being a racist, “a statement that someone is a ‘racist,’ while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of h[er] race.  ‘Racism’ is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race.”

We also have a defamation claim. Plaintiff says her former employer accused her of being a racist, which of course would damage her reputation in the community. But defamation law has a lot of exceptions. Statements of opinion are not defamatory. "To the extent that Defendants’ statements are read as accusing Plaintiff of being a racist, the reasonable reader would have understood this to be an expression of opinion based on the widely circulated video of Plaintiff’s encounter with Christian Cooper." The court then cites a series of cases from the Appellate Division and the Second Circuit, one dating to 1976, that stand for that proposition.

2d Circuit outlines when employees can win under the WARN Act

You do not see many cases brought under the WARN Act, shorthand for the Worker Adjustment and Retraining Notification Act, enacted in the late 1980s, which requires certain employers to notify employees within 60 days of a "plant closing" or that there will be a mass layoff. This case holds that a factfinder may may determine that a restaurant at the Resorts World Casino had to notify employees that it was shutting down because it was sufficiently distinct from the Casino and therefore fell within the WARN Act.

The case is Roberts v. Genting New York LLC, issued on May 15. If an entity is an operating unit within a single site of employment, it must comply with the WARN Act, which provides for damages when the Act is not followed. This is a putative class action, so if the plaintiffs win the case, they will recover mucho damages. Is the restaurant a "single site of employment"? If so, the case goes to trial. This is not an easy call. Under the regulations, an entity is an "operating unit" and subject to the WARN Act if it is "an organizationally or operationally distinct product, operation, or specific work function within or across facilities at the single site." 

What complicates the case is the restaurant is located inside the Casino, so defendant argues that the restaurant is not subject to the WARN Act because it was integrated with the Casino and was not a distinct operating unit. The Court of Appeals (Chin, Newman, and Sullivan in dissent) finds that while the Casino provided the restaurant with centralized services, such as purchasing, warehousing, HR management, and cleaning, other factors suggest the restaurant was an independent operating unit under the Act, in particular, (1) its physical location was in an area separate from other retain outlets and amenities and did not share space with any other restaurant, (2) the restaurant's kitchen prepared all of the hot items it served, operated on an all-you-can-eat basis, and had unique food items, (3) its managers worked there full-time, (4) its employees typically worked there for at least six months and their wages were allocated to the restaurant's cost center, (5) defendant did not treat restaurant personnel as interchangeable with their counterparts at other food outlets, and (6) the servers wore different clothing than their counterparts at the Casino's other eateries. 

All this needs to be resolved by the factfinder. The plaintiffs can still lose the case, as there are factors that militate against the restaurant being a separate entity from the Casino under the WARN Act. In a footnote, the Court says it is an open question of law whether a jury or the trial court is the factfinder in these cases. The majority view is that the trial court makes these determinations because remedies under the Act are equitable rather than legal in nature.

Split decision in nuanced fabricated evidence claim yields win for plaintiff

Did you know you can sue the police for manufacturing evidence against you? These are called fabricated evidence claims. In this case, a divided Court of Appeals holds that the plaintiff can sue the police for fabricating his alleged drug sale even though plaintiff was found guilty of possession. This is a very nuanced holding.

The case is Barnes v. City of New York, issued on May 22. The district court said plaintiff could not maintain a fabricated evidence claim because there was no deprivation of liberty. The liberty deprivation must be proven in order to bring these claims under the Due Process Claim. The district court's reasoning was that plaintiff served no additional time in custody because of the possession conviction, even if he was acquitted of selling drugs. The Court of Appeals disagrees.

Judge Lee reasons that "to insist that a deprivation of liberty requires custody or a conviction overlooks the fact that Barnes' prosecution on the drug sale charge is itself a deprivation of liberty," and the Court has previously held that a plaintiff's "prosecution can be a deprivation of liberty." Liberty may be deprived by consequences beyond custody, the Court writes, as "being framed and falsely charged damages an individual's reputation, requires that individual to mount a defense, and places him in the power of a court of law." It is one thing to be arrested for drug possession. It is another thing to be falsely charged with being a drug dealer, the Court holds, and the two different arrests from the same event caused plaintiff therefore to "suffer[] different deprivations of liberty as a result."

In dissent, Judge Sullivan writes that, because Plaintiff "would have been held in the same place for the same amount of time," even without the fabricated evidence charge, his claim must fail since he alleges no "additional" liberty deprivation traceable to the fabricated evidence. The majority responds that this is not the law of the Second Circuit, which held in Smalls v. Collins, 10 F.4th 117 (2d Cir. 2021) (a case that I argued), that "we have long held that Section 1983 liability attaches for knowingly falsifying evidence even where there simultaneously exists a lawful basis for the deprivation of liberty that the plaintiff suffered."

How to plead a retaliation case under Title VII and ADEA

Plaintiff in this case tried to amend her lawsuit to assert a retaliation claim against a school district. The district court denied the amended complaint on the basis that it did not assert a plausible cause of action. The Court of Appeals reverses.

The case is Curry-Malcolm v. Rochester City School District, a summary order issued on May 30. Plaintiff proceeds under Title VII and the Age Discrimination in Employment Act. The question is whether her complaint sufficiently asserts she suffered an adverse action. In plain English, did anything happen to plaintiff that makes this situation worth suing over> Here is the Second Circuit's concise summary of the state of the law in the area of pleading retaliation claims:

An employment action is adverse in the retaliation context if a plaintiff “show[s] that a reasonable  employee would have found the challenged action materially adverse, which in  this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 (2d Cir. 2019) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)) (emphasis in original). For example, “a poor performance evaluation could very well deter a reasonable worker from complaining.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 92 (2d Cir. 2015). At the motion to dismiss stage, “[c]ausation may be shown by direct  evidence of retaliatory animus or inferred through temporal proximity to the protected activity.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018).

The Second Circuit (Walker, Leval and Lohier) holds that the pro se Plaintiff asserts an adverse action under the retaliation cases because within  one to three months after she made internal and external complaints of discrimination, the school district secretly changed her name and social security number in their tax records, demoted her to special education teacher, promoted a less qualified coworker over her, and transferred her to another school with a higher workload. Then, one of her informal internal discrimination complaints was dismissed internally without the district providing her notice or an opportunity to be heard, and plaintiff was ultimately laid-off from her position. Then, after she filed complaints with SDHR and EEOC, the district removed her name from number 11 to number 30 on the preferred eligibility list for recall.