Supreme Court takes on Facebook censorship and political speech

One of the anomalies in our constitutional system is that the courts have to solve modern-day problems by applying language that the constitutional framers adopted in 1791. In this case, the Supreme Court had to decide when the First Amendment bars a public official from censoring his private Facebook page. The Court provides an answer by creating a multi-part test drawn from state-action cases that the Court has issued over the decades.

The case is Lindke v. Freed, issued by the Court on March 15. Freed was city manager for the City of Port Huron, Michigan, who created a Facebook page for himself more than 15 years ago. That page includes personal postings about family, friends, his dog, bible verses, etc. But since he was also a public official, he posted stuff about the City, and constituents wrote comments that he sometimes deleted because they were "derogatory" or "stupid." One constituent was Lindke, who criticized how the City dealt with the COVID pandemic. Freed blocked Lindke, who in turn sued Freed, and the case winds up in the Supreme Court because the Supreme Court has to issue guidance on new issue. The framers never could have anticipated an issue like this, but there is a speech component to a case like this so the Court tries to bring this case within its existing standards in comparable speech cases.

What makes this a potential constitutional claim is that Freed is a public official. Normally, public officials cannot silence their critics; that would invite a First Amendment challenge. The problem here is that Freed silenced Lindke on his private Facebook page that also addresses public matters. 

The Supreme Court devises the following test, drawing from prior state action cases. The first thing the censored plaintiff must show is that the public official had actual authority rooted in written law or longstanding custom to speak for the government. "That authority must extend to speech of the sort that caused the alleged rights deprivation." But if the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice" and cannot be sued under the First Amendment. The Court gives a few examples of his this might play out:

Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. 

If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “con- cern[ing] information learned during that employment.”

But these are hypotheticals. The Court makes clear that this is a face-specific inquiry that will depend on the case. Cases involving problems that no one anticipated 20 years ago are not easy to resolve, and I am sure this case is just the beginning of social media censorship rulings from the Supreme Court.

 

Trial court granted summary judgment to defendant after 2d Circuit remanded case for trial

In this excessive force case against the Suffolk County Police Department, the Court of Appeals held in 2017 that the plaintiff had enough evidence to prove that one of the officers shot and killed the decedent in violation of constitutional standards. On remand, however, rather than empanel a jury, the trial court gave the case additional thought and granted summary judgment to the officer, dismissing the case. Can the trial court do that?

The case is Callahan v. Suffolk County Police Dept., issued on March 19. This case was originally filed in 2012. It arose after officer Wilson went to the Callahan's home, and their 26 year-old son, who had substance abuse problems, was shot by the officer. The parties sharply dispute what happened prior to the shooting, as the officer maintained that Kevin had a gun and he shot Kevin in self-defense. The family denies that account. The case went to trial and the jury returned a verdict in Wilson's favor, but the Court of Appeals ruled in 2017, 863 F.3d 144, that the jury was improperly charged on the standards guiding excessive force claims. The Second Circuit thus remanded the case to the Eastern District of New York for a new trial.

On remand, the judge placed the case on the trial-ready calendar but the defendants then moved for summary judgment, arguing that Wilson was entitled to qualified immunity on the wrongful death claim. The district court granted that motion, and the case returned to the Second Circuit (Parker, Lee and Merriam), which teaches the trial court a lesson on appellate mandates.

When the Court of Appeals issues a ruling, it issues a "mandate" that requires the trial court to faithfully comply with its order. The trial court does not have any discretionary authority to second-guess the Second Circuit's ruling or its judgment. When the Second Circuit ordered a new trial in this case, the trial court did not have authority to decide on its own that there were no factual issues for trial. While there are some exceptions to this rule, none apply here, as the factual record was not further developed on remand and the record upon which the district court granted summary judgment was essentially the same as the record that was before the Court of Appeals in remanding this case for trial.

Racial harassment claim under the City HRL will proceed to trial

This is an unpleasant racial harassment case against Fashion Institute of Technology, where the plaintiff complained about such harassment arising from a supervisor's allegedly racially-insensitive comment toward a white student aide. Plaintiff says she suffered retaliation from that supervisor, Barton, in the form of a death threat. The Court of Appeals holds that plaintiff has a case against Barton under the New York City Human Rights Law.

The case is Phillips v. FIT, a summary order issued on March 8. After Barton learned about plaintiff's complaint to the Affirmative Action Office, Barton screamed at plaintiff, saying, "I'm tired of your bullshit" and "If you don't shut the fuck up, I'm going to fucking kill you." Plaintiff says Barton was "foaming at the mouth" and put her hands on plaintiff's chest as if to push her. Plaintiff complained to HR, which suspended Barton, sent her to a racial empathy seminar, and began investigating the allegation about three weeks later.

The hostile work environment claim was properly dismissed, the Court of Appeals (Lohier, Calabresi and Cabranes) holds, because there is no evidence that Barton's threats were racially-motivated. It was not enough for plaintiff to assert otherwise on the basis that Barton had never acted that way toward a white employee. Such an argument is speculative, the Court holds. 

But we do have a viable retaliation claim for a retaliatory hostile work environment, because the jury may find that Barton's threats were materially adverse and would have deterred a reasonable employee from complaining about racial discrimination in the future. The Court notes that "[a] single incident may constitute a hostile work environment, and thus a materially adverse action, if it is 'extraordinarily severe.'” Under that test, plaintiff could have reasonably been dissuaded from complaining about discrimination again. The Court of Appeals writes that "Phillips testified that Barton threatened to kill her, cursed repeatedly at her, and physically intimidated her. Indeed, Barton testified at her deposition that she repeatedly threatened 'to kill' Phillips because saying it once 'evidently . . . didn’t scare [Phillips] enough; because she kept talking and so [Barton] said it again.'” 

The Court thus holds that "[a] reasonable juror could find that this type of threatening behavior by a coworker with whom Phillips shared an office might well dissuade a reasonable employee from filing a complaint." In addition, Phillips provided admissible evidence that Barton’s threats were motivated by retaliatory animus. During her interview with Human Resources, Barton acknowledged that Phillips’s disapproval was the 'last straw' after Phillips had 'complained about [Barton], it went up to Affirmative Action and there is still no resolution.'” 

While plaintiff may sue Barton for the retaliatory hostile work environment under the City HRL, there is no racial harassment case against FIT. The Court holds that FIT's delay in initiating the investigation into Barton's racially-motivated threats is not enough to impute liability to the school. The standard for this issue is whether FIT knew about the harassment but "did nothing about" it. Plaintiff's complaint did not suggest that Barton posed a physical threat to her. I am not sure how the record deals with this, as plaintiff asserts that Barton said, "I'll fucking kill you." The district court ruling does not shed light on this, either. Maybe the internal complaint did not affirmatively say that plaintiff feared that Barton would carry out this threat. The Court writes, "Phillips does not point to any evidence in the record to suggest that FIT was warned that Barton might pose a physical threat to Phillips or anyone else." Cases hold that (“[L]ess grave conduct, such as . . . flirtation, sexual innuendo, or crude talk, . . . might . . . not reasonably give notice of a likelihood that the person will represent a danger to co-employees”). Under that standard, the nearly three-week delay was not so long as to hold FIT liable for the retaliatory harassment.

Procedural glitch prevents the 2d Circuit from hearing appeal from jury verdict

This wage and hour case went to trial. The plaintiffs sued under federal and state law, but the trial court asked the parties if they were OK with submitting only the state law claims to the jury, as that tactic would simplify the jury instructions. The jury ruled in favor of the plaintiffs on the state law claims. 

After the district court resolved post-trial motions and the district court certified this case for immediate appeal under Rule 54(b), defendants appealed to the Second Circuit, claiming the trial court should not have exercised supplemental jurisdiction over the state-law claims. The appeal is dismissed and resolution of this case will be delayed.

The case is Zivkovic v. Laura Christy LLC, issued on March 5. The appeal is dismissed because the federal claims were never resolved in this case. The Fair Labor Standards Act claims are still pending. They were neither dismissed nor resolved by the district court. The lack of clarity about the status of the FLSA claims complicates the appeal because "it leads to questions about the validity of the district court's judgment certifying this appeal" for immediate review in the Second Circuit. Second, "the status of the FLSA claims may be relevant to our analysis of Defendants' challenge to the district court's exercise of jurisdiction" under 28 USC 1367, the supplemental jurisdiction statute that allows the trial courts to hear related state law claims. 

The case returns to the district court to clarify the status of the FLSA claims. When that happens, the parties may return to the Court of Appeals (Kearse, Park and Robinson) to resolve these issues on the merits. 

Arbitration agreement does not compel the parties to arbitration

The federal courts maintain strict allegiance to the Federal Arbitration Act, which compels the parties to arbitrate their claims when the parties agree to arbitrate their disputes. Motions to compel arbitration are routinely granted, but that is not always the case. This is one of those exceptions. 

The case is Staley v. Hotel 57 Services, a summary order issued on March 13. Bear in mind that many plaintiffs do not like arbitration, which offers less discovery than litigation, no jury, and the success rate is not comparable to state and federal court. But if the employee signs an arbitration agreement (usually at the start of their employment, when the employee has no real incentive to make things difficult in this regard and may have no bargaining power in any event), the court will uphold that agreement.

 

The district court denied the motion to compel in this case brought under the WARN Act  (which requires the employer to give employees sufficient notice of a plant closing), but the employer wanted arbitration based on the arbitration agreement. 

Issue number 1: while the courts prefer to determine who has authority to refer the case to arbitration, the arbitration agreement can delegate that issue to the arbitrator. The employer said the parties agreed to place this issue before the arbitrator, but the arbitration agreement is vague on this point as it does not clearly state who would make this decision, and it was not enough for the agreement to incorporate rules from the American Arbitration Agreement, which says the arbitrator makes this decision. This issue was therefore best left to the district court, not the arbitrator. 

Issue number 2: while the arbitration agreement says the employees will submit their complaints to an arbitrator, including issues surrounding the termination of employment bu not a permanent layoff, "a claim  regarding a permanent layoff is not subject to arbitration" in this case. Another provision of the agreement says the employee "may not seek . . . arbitration of a permanent lay-off." Since plaintiffs' claims relate to a permanent layoff in that they were placed on an indefinite furlough in March 2020 and the Hotel did not bring them back to work since then, the Court of Appeals (Lohier, Sack and Perez) presumes this is a permanent layoff case. 

Another primer on premature qualified immunity appeals in police misconduct cases

This case alleges that a Vermont police officer beat up a bar-goer, prompting an excessive force lawsuit under Section 1983. The district court rejected the officer's motion for summary judgment, holding that factual disputes prevented the grant of qualified immunity and that the jury would have to decide what really happened before the court could determine whether the officer acted reasonably under the circumstances, a prerequisite to immunity. The officer appealed, and the Court of Appeals sends the case back to trial on this issue.

The issue is Jok v. City of Burlington, issued on March 15, nearly a year after the case was argued. I don't know why it took so long for this decision to issue, as it applies settled rules governing the appealability of qualified immunity denials in cases like this, and the decision does not appear to resolve any difficult legal issues. Still, the ruling provides good guidance for lawyers who handle these cases. If you have a Section 1983 case and someone wants to appeal from the denial of qualified immunity, you need to read this case.

Generally, you cannot appeal the denial of summary judgment right away. The party that sought summary judgment, usually the defendant, has to go through a trial first before the case can reach the Court of Appeals. An exception to that rule is qualified immunity denials, as immunity protects public officials (including police officers) from litigation, and we want immunity to attach as early as possible. Immunity attaches when the defendant acts reasonably under the circumstances. But an appeal from the denial of qualified immunity is only permissible when the defendant adopts the plaintiff's facts and argues that those facts prove he acted reasonably, or the case involves some issue of law that can be resolved right away.

While this case alleges excessive force and we have various factual disputes about what happened and whether the officer acted reasonably, the officer appealed from the denial of qualified immunity without accepting the plaintiff's version of events for purposes of the appeal. Instead, the Court of Appeals (Lee, Perez and Merriam) notes that the officer argues from his own version of events in seeking qualified immunity. That is a rookie (but common) mistake, and counsel tried to modify the appellate argument in the reply brief, but even the reply brief argues the defendant officer's version of events. Let's face it: it is hard to accept the opposing party's version of events for any purpose, even when you are trying to have the case dismissed. What it all means is the appeal is not appropriate, and the Court of Appeals does not determine if the officer deserves qualified immunity. The case returns to the district court for the jury to worry about it. 

Plaintiff may relitigate similar issue on federal court despite unsuccessful Article 78 petition in state court

This case clarifies when you can bring a lawsuit after losing one of your issues in an Article 78 proceeding in the New York State courts. Specifically, the Court of Appeals determines when the Article 78 loss has res judicata effect in subsequent litigation, even in federal court. The Court finds the plaintiff may proceed with his case even through his Article 78 was not successful.

The case is Whitfield v. City of New York, issued on March 15. Judge Carney gives a thorough review of Article 78's in New York. For the uninitiated, Article 78 petitions are a quick way to resolve certain disputes against the government, as they have a short statute of limitations and usually do not require a trial or live testimony and can be resolved on the paperwork, such as documents, affidavits, and statutory or case law. Normally, people don't get damages in Article 78 petitions; they get an injunction or a definitive court ruling on some issue involving public administration.

At the same time, under res judicata principles, you cannot relitigate the same issues over and over in different courts. This case asks when you can litigate an issue in federal court that you lost in the Article 78 petition. What makes this case unique is that the Article 78 court in the state system did not decide whether plaintiff could recover any damages because the Article 78 court ruled against the plaintiff in that proceeding. Plaintiff brings a similar claim in federal court, but this time he seeks damages. Can he proceed in federal court?

Plaintiff is a former inmate in the New York system who claims he was denied a position working with youths for a state agency because of his criminal record and a book he wrote about the unfairness of his criminal conviction. The Article 78 court ruled against Whitfield and said he did not have any case under the First Amendment and that he did not suffer discrimination because of his criminal record. He then sued in federal court, prompting a motion to dismiss on res judicata grounds on the theory that he was improperly trying to relitigate these issues in a different court.

The Court of Appeals (Carney and Liman [D.J.]) holds that plaintiff can bring this lawsuit despite the Article 78 loss. Why? Because the Article 78 judge did not determine if plaintiff could recover any damages from the Article 78, and the Article 78 ruling was not quite the constitutional ruling that plaintiff seeks in the federal case. The Court holds that, for claim preclusion purposes, a "pure" Article 78 proceeding, which did not result in the award of any damages or squarely resolve the issue now raised in federal court, does not prevent the plaintiff from pursuing a similar claim in federal court under constitutional or other federal provisions. 

Bottom line: we presume that an Article 78 proceeding will be a "pure" proceeding, without the availability of damages. In this case, while Whitfield sought damages in his Article 78, his primary purpose in filing that petition was to vacate the state agency's decision not to hire him and to win a court order entitling him to the position. The state court did not treat the Article 78 petition as a "hybrid" proceeding that might have involved other damages or relief. Nor did the state court resolve plaintiff's claim under the First Amendment - it instead ruled against plaintiff in finding that adverse employment was arbitrary and capricious as a matter of law, a much different test than the First Amendment analysis.

For an issue as complex as this one, you can count on a dissent. Judge Sullivan dissents, stating that this was really a hybrid Article 78 proceeding that has res judicata effect on plaintiff's federal lawsuit because plaintiff did seek damages in the Article 78 that were not incidental to the primary relief that he sought. He notes further that, separate and apart from determining the adverse personnel decision was arbitrary and capricious, the Appellate Division in plaintiff's case rejected plaintiff's argument that the state agency violated the First Amendment in denying him the position.

The lengthy nature of the majority and dissent opinions highlights to complexity of this issue: how to balance the expedited Article 78 process with the more drawn-out Section 1983 litigation available to parties in federal courts and the overriding res judicata principles that would normally apply anytime someone tries to re-litigate issues in two different courts.