SESSION PREVIEW

Major Second and First Amendment cases headline November sitting

With just over a year to go until the 2024 presidential elections, the shadow of former President Donald Trump – who is once again the frontrunner for the Republican presidential nomination – hovers over three of the seven cases in the court’s November argument session, which begins on Oct. 30. Trump once asked the justices to take up the same question that they will now consider in two cases on Oct. 31, involving liability for public officials who block their constituents on their personal social media accounts. And comments by Sen. Marco Rubio during the 2016 presidential campaign about the size of Trump’s hands led to the trademark dispute scheduled for oral argument on Nov. 1.

The police seized their cars. It took a year to get them back.

The justices will kick off the November argument session with Culley v. Marshall, a case that began as lawsuits brought by two Alabama women, Halima Culley and Lena Sutton. Both women’s cars were being used by someone else when police pulled over the drivers, found drugs, and seized the cars. After more than a year, Culley and Sutton eventually got their cars back, although during that time Sutton was unable to find work and fell behind on her bills. They then filed lawsuits in federal court, where they alleged that the failure of state and local governments to provide them with a prompt hearing after their cars were taken from them violated their constitutional right to due process – that is, to be provided with the proper procedural protections.

As the case comes to the Supreme Court, the dispute is about what test courts should use to determine whether individuals like Culley and Sutton are entitled to a hearing to challenge the government’s retention of property while they wait for a final decision on whether they will lose their car.

Culley and Sutton contend that courts should apply the three-part test outlined in the court’s 1976 decision in Mathews v. Eldridge, which looks at the private interest involved; the risk that the individual will be wrongly deprived of that interest under the existing procedure, as well as the value of additional procedures to safeguard against the loss of the interest; and the government’s interest. Under this test, they say, they are entitled to a retention hearing.

The state counters that it is only required to provide a timely forfeiture proceeding. And the correct test to determine whether that has occurred, the state insists, is the one that the lower court applied in this case: the “speedy trial” test outlined in Barker v. Wingo, which considers the length of the delay and the reason for the delay, as well as (in this context) when the individual asserted her right to a speedy forfeiture proceeding and any harm to the individual as a result of the delay.

Two local governments, the city of Satsuma and the town of Leesburg, argue that Culley and Sutton do not have a legal right to sue, known as standing, because they – rather than the local governments or the state – were responsible for the delay in the return of their cars. Among other things, the local governments note, Culley and Sutton could have posted a bond to get their cars back but chose not to; they also waited over a year to file their motions seeking the return of their cars on the ground that they were “innocent owners.”

Government officials, social media, and the First Amendment

In 2021, the justices considered a petition filed by the former president, asking them to review a ruling by a lower court that Trump violated the First Amendment when he blocked the Knight First Amendment Institute and several individuals who had criticized Trump on the social media platform X, formerly known as Twitter.

The justices sent Trump’s case back to the court of appeals with instructions to dismiss the case because by then Trump was no longer president. But the question at the core of Trump’s case – whether public officials are acting as government officials and therefore can violate the First Amendment when they block people on their personal social media accounts – is back at the court this term in two cases, both scheduled for Oct. 31. Those cases are only the first of several this term involving social media: The justices will hear oral argument sometime next year in a pair of challenges to controversial laws in Florida and Texas that seek to regulate social media companies, as well as a dispute alleging that the federal government violated the First Amendment by pressuring social media companies to remove false or misleading content about (among other things) the 2020 election and COVID-19.

In the first case, O’Connor-Ratcliff v. Garnier, the justices are reviewing a ruling by the U.S. Court of Appeals for the 9th Circuit, which held that two members of a southern California school board – Michelle O’Connor-Ratcliff and T.J. Zane – violated the First Amendment when they blocked two parents who criticized them on their personal Facebook and Twitter accounts.

The second case, Lindke v. Freed, pits Kevin Lindke, a resident of Port Huron, Michigan, against James Freed, the city manager. Lindke did not approve of Freed’s handling of the pandemic and left critical comments on Freed’s Facebook page, causing Freed to block him. Lindke went to court, where he argued that blocking him violated the First Amendment. But the U.S. Court of Appeals for the 6th Circuit rejected that argument, holding that because Freed did not operate his Facebook page as part of his duties as the city manager, there was no First Amendment violation.

“Trump Too Small”

During his bid for the Republican presidential nomination in 2016, Sen. Marco Rubio of Florida claimed that then-candidate Trump had “small hands.” That claim spurred Steve Elster to try to register the phrase “Trump Too Small” so that he could print and sell t-shirts bearing the phrase. Elster said that the phrase was intended to “convey[] that some features of President Trump and his policies are diminutive.” On Nov. 1, in Vidal v. Elster, the justices will weigh in on Elster’s dispute with the U.S. Patent and Trademark Office over the phrase.

The PTO denied Elster’s application, explaining that a federal trademark law, Section 2(c) of the Lanham Act, bars the registration of a trademark that uses the name of another living person unless that person has given permission.

The U.S. Court of Appeals for the Federal Circuit disagreed and ruled for Elster. It concluded that barring Elster from registering the “Trump Too Small” phrase would violate the First Amendment. The government, the court of appeals reasoned, does not have an interest in “restricting speech critical of government officials or public figures” through trademarks.

Federal loans and the Fair Credit Reporting Act

In Department of Agriculture Rural Housing Development Housing Service v. Kirtz, scheduled for argument on Nov. 6, the justices will decide whether Congress waived the United States’s sovereign immunity from lawsuits for violations of the Fair Credit Reporting Act.

The case was filed in federal court in 2020 by Reginald Kirtz, who claims that although he no longer owed anything on a loan made to him by the Department of Agriculture, the department damaged his credit score by reporting that his account was past due. Kirtz notified Trans Union, the credit union that reported the overdue account, of the inaccurate report by USDA, but USDA did not correct it. This, Kirtz said, violated the FCRA, which (among other things) requires anyone who provides disputed information to credit reporting agencies like Trans Union to investigate and, if necessary, correct it.

The USDA asked the court to dismiss the case. It argued, and the district court agreed, that the FCRA did not clearly show that Congress had intended to waive the federal government’s immunity from lawsuits.

But the U.S. Court of Appeals for the 3rd Circuit reversed and reinstated Kirtz’s lawsuit. It emphasized that the FCRA allows lawsuits against any “person” who does not comply with the law’s requirements, and defines the term “person” to include “any ‘government or governmental subdivision or agency.” Moreover, because the federal government is the country’s “largest employer and creditor,” the court of appeals reasoned, allowing it to be sued for violating the FCRA would be consistent with Congress’s goal of ensuring “fair and accurate credit reporting.”

The Second Amendment returns to the Supreme Court

Less than two years after their landmark decision in New York State Rifle & Pistol Association v. Bruen, in which the court struck down New York’s handgun-licensing scheme, the justices will hear argument in another major gun-rights case: United States v. Rahimi, a challenge to the constitutionality of a federal ban on the possession of guns by individuals who are subject to domestic-violence restraining orders. Rahimi is an important case in its own right, but it is also significant as an opportunity for the justices to say more about how the lower courts should apply the “history and tradition” test outlined in Bruen.

Texan Zackey Rahimi was involved in five shootings in December 2020 and January 2021, including one incident in which he was involved in a car accident and shot at the driver of the other car and another in which he fired into the air after his credit card was declined at a fast-food restaurant. When police identified Rahimi as a suspect and obtained a warrant to search his home, they found a rifle and pistol. Because Rahimi had been the subject of a Feb. 2020 protective order after the alleged assault of his former girlfriend, which specifically barred him from having a gun, he was indicted on charges that he had violated 18 U.S.C. § 922(g)(8), which bars anyone who is the subject of a domestic-violence restraining order from possessing a gun.

Rahimi asked the court to dismiss the indictment, arguing that the law violates the Second Amendment. Both a federal district court and a panel of U.S. Court of Appeals for the 5th Circuit initially upheld the law, rejecting Rahimi’s challenge. But after the Supreme Court’s decision in Bruen, the panel issued a new opinion vacating Rahimi’s conviction and deeming the statute unconstitutional. The federal government, the panel stressed, could not point to a historical tradition of similar restrictions, as Bruen requires.

In the Supreme Court, the Biden administration maintains that the law is constitutional even if it cannot provide “an exact historical match” for the law. It is enough, the Biden administration says, if the law fits within a broader historical tradition of regulating guns. And Section 922(g)(8) does exactly that, the administration explains: It fits squarely within a long history and tradition of disarming people – like Rahimi – who are not law-abiding, responsible citizens.

Rahimi concedes that Section 922(g)(8) could be constitutional even if the federal government does not identify a “historical twin” to the law. But the law at issue in this case, he continues, is an “outlie[r] that our ancestors never would have accepted.” The federal government, he writes, cannot point to any laws “punishing members of the American political community for possessing firearms in their homes based on dangerousness, irresponsibility, crime prevention, violent history or inclination, or any other character trait or legislative goal.”

Education benefits for veterans

The justices will finish off the November argument session with a complicated statutory interpretation question involving educational benefits for veterans. There are not one but two benefit programs at the center of Rudisill v. McDonough, in which the justices will hear oral argument on Nov. 8: the Montgomery GI Bill and the Post-9/11 GI Bill.

Both bills provide up to 36 months of benefits for overlapping periods of time, prompting Congress to limit the benefits available under the programs. Veterans can only receive a total of 48 months of benefits, for example, and cannot receive benefits under both programs at the same time. Congress also limited, in 38 U.S.C. § 3327(d), the extent to which veterans who have used some – but not all – of their benefits under the Montgomery GI Bill can then take advantage of the more generous benefits available under the Post-9/11 GI Bill.

The question before the court in the case of David Rudisill is precisely how the two benefit programs (and the limits imposed by Congress) interact. Rudisill was on active duty in the U.S. Army and the Army National Guard for a total of nearly eight years, during three separate periods between January 2000 and August 2011. He first qualified for benefits under the Montgomery GI Bill, which he used for 25 months and 14 days to finance his undergraduate education.

When Rudisill left the military in 2011, he applied to use Post-9/11 GI Bill benefits to pay for his education at Yale Divinity School. The Department of Veterans Affairs said that he was eligible for 10 months and 16 days of benefits – the same as his remaining eligibility under the Montgomery GI Bill – and the full U.S. Court of Appeals for the Federal Circuit agreed.

In the Supreme Court, Rudisill contends that he is entitled to nearly two more years of benefits under the Post-9/11 GI Bill, rather than the much shorter period offered by the VA. Under the text of both bills, he reasons, veterans who qualify for benefits under each program with separate periods of service in the armed forces can use those benefits in whatever order those choose, as long as they do not use them at the same time, for up to 48 months. This result, he says, is consistent with Congress’s intent with the Post-9/11 GI Bill “to provide generous benefits commensurate with the difficult service these wartime veterans provided to our Nation.”

Defending the VA’s interpretation, U.S. Solicitor General Elizabeth Prelogar emphasizes that, as a veteran who had not yet used all of his Montgomery GI Bill benefits, Rudisill could receive benefits under the Post-9/11 GI Bill only by opting to do so, which he did. And in so doing, Prelogar continues, Rudisill became subject to Section 3227(d)’s limits on Post-9/11 benefits, which are equal to the number of remaining Montgomery GI Bill benefits. Nothing in Section 3227, Prelogar observes, draws the distinction on which Rudisill relies between veterans who serve for one period of service and those who qualify for both Montgomery and Post-9/11 benefits based on multiple periods of service.

This article was originally published at Howe on the Court.